The ACIT, Circle-2, JAMNAGAR V. M/s. Standard Buildcon, JAMNAGAR

ITA 281/RJT/2012

• Counselvise Citation: 28124914 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-04-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: J C RANPURA
• Keywords: Reopening of assessment; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH BEFORE: SHRI D.K. TYAGI , JUDICIAL MEMBER AND SHR I A. MOHAN ALANKAMONY , ACCOUNTANT MEMBER ACIT CIRCLE - 2, JAMNAGAR (APPELLANT) VS M/S STANDARD BUIDCON, INDRAPRATHA COMPLEX PANCHESHWAR TOWER ROAD, JAMNAGAR (RESPONDENT) REVENUE BY : SRI AVINASH KUMAR , D . R. ASSESSEE BY: SRI J.C. RANPURA , A.R. DATE OF HEARING : 25 - 04 - 2013 DATE OF PRONOUNCEMENT : 06 - 0 6 - 2013 / ORDER P ER : D.K. TYAGI , JUDICIAL MEMBER : - THIS IS THE REVENUE S APPEAL AG AINST THE ORDER OF LD. CIT(A), JAMNAGAR DATED 01 - 04 - 2 012 . 2. THE REVENUE HAS TAKEN TWO EFFECTIVE GROUNDS: - I T A NO . 281 / RJT /20 12 A SSESSMENT YEAR 2006 - 07 I.T.A NO. 281/RJT/2012 A.Y. 2006 - 07 PAGE NO ACIT VS. M/S STANDARD BUILDCON 2 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE REASSESSMENT PROCEEDINGS INITIATED BY THE A.O. U/S 147 OF THE ACT WERE WITHOUT VALID JURISDICTION AND HAD NOT BEEN VALIDLY INITIATED. 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 3071212/ - MADE BY THE AO U/S. 40(A)(IA) OF THE INCOME TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE - FIRM IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION CONTRACT WORKS AS WELL AS LABOUR CONTRACT WORK FOR THE VARIOUS GOVERNMENT AND NON - GOVERNMENT ORGANIZATIONS. THE ASSESSEE FILED ITS RETURN OF INCOM E DECLARING TOTAL INCOME AT RS. 55,87,320/ - ON 31 - 12 - 2006. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT ORDER U /S 143(3) WAS PASS ED ON 18 - 12 - 2008 ASSESSING THE TOTAL INCOME OF RS.55,87,320 / - . R EASSESSMENT PROCEEDINGS WERE INITIATED BY ISSUING N OTICE U/S 148 OF THE ACT DATED 1 7 - 09 - 2010 WHEREIN ASSESSEE WAS ASKED TO F ILE RETURN OF INC OME FOR THE YEAR UNDER APPEAL . I N RESPECT TO THIS NOTICE , THE ASSESSEE FILED A LETTER DATED 27 - 09 - 2010 ALONG WITH RETURN OF INCOME . A SSESSEE ALSO ASKED FO R THE REASONS FOR REOPENING OF ITS CASE FOR REASSESSMENT . T HE REASONS FOR REOPENING OF THE CASE WERE FURNISHED TO THE ASSESSEE . THE REASONS GIVEN BY THE AO FOR REOPENING ASSESSMENT WAS THAT TDS ON VARIOUS EXPENDITURE WAS DEDUCTED BUT SOME OF THEM ( AS GIVEN IN ANNEXURE IX TO THE 3CD REPORT) WERE CREDITED TO THE GOV ERNMENT ACCOUNT AFTER EXPIRY OF PRESCRIBED TIME LIMIT WHICH IS VIOLATION OF THE PROVISIONS OF SECTION 40 (A)(IA) OF THE A CT. THEREAFTER ASSESSEE FILED WRITTEN SUBMISSIONS ON 30 - 11 - 2011 . T HE ASSESSING OFFICER COMPLETED THE REASSESSMENT PROCEEDINGS BY DISALLO WING THE EXPENDITURE OF RS. 30,71,212/ - U/S 40(A)(IA) OF THE ACT AND THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. THE LD. CIT(A) HELD THAT RE - OPENING OF THE ASSESSMENT ON THE BASIS OF THE MATERIAL WHICH WAS ALREADY TAKEN IN TO CONSIDERATION B Y THE AO AT THE TIME OF ORIGINAL ASSESSMENT CANNOT I.T.A NO. 281/RJT/2012 A.Y. 2006 - 07 PAGE NO ACIT VS. M/S STANDARD BUILDCON 3 BE HELD TO BE VALID AND ALSO DECIDED THE APPEAL OF THE ASSESSEE ON MERIT BY DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER, INVOKING THE PROVISION OF SECTION 40 (A)(IA) OF THE AC T BY PLACING RELIAN CE ON THE DECISION OF ITAT AHMEDABAD B BENCH IN THE CASE OF KANUBHAI RAMJIBHAI MAKWANA VS. ITO IN ITA NO.3983/AHD/2008 DATED 03 - 12 - 2010 [2011] 9 TAXMAN.CO. 55 (AHD ITAT). 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT A.O. HAS REOPENED THE CASE ON THE BASIS OF ANNEXURE IX OF 3 CD REPORT WHICH WAS ALREADY ON RECORD WHEN THE ORIGINAL ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED BY THE AO. WE FURTHER FIND THAT A.O. HAS NOT BROUGHT ANY NEW MATERIAL ON RECORD FOR RE - OPENING OF ASSESSMENT U/S 147 OF THE ACT . DURING THE ORIGINAL ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD SUBMITTED THE COPY OF TDS IN THE FORM OF 26Q ALONG WITH CHALLAN OF PAYMENT FOR ALL FOUR QUARTERS. THE AUDIT REPORT WAS ALSO AVAILABLE WITH THE A.O. IN WHICH SUCH DEFAULT WAS MENTIONED . HOWEVER THE A.O. DID NOT RAISE ANY QUERY IN THIS REGARD AND ASSESSMENT ORDER WAS PASSED BY ALLOWING THE EXPENDITURE CLAIMED BY THE ASSESSEE. IN THE ABSENCE OF ANY FRESH MATERIAL BEFORE THE A.O . REOPENING OF ASSESSMENT ON THE BASIS OF THE MATERIAL WHICH WAS ALREADY BEFORE HIM AT THE TIME OF ORIGINAL ASSESSMENT IS NOT SUSTAINABLE IN LAW THEREFORE LD. CIT(A) HAS RIGHTLY HELD THIS REOPENING OF THE ASSESSMENT TO BE NOT VALID. THIS GROUND OF THE REVE NUES APPEAL IS DISMISSED. 5. NOW, COMING TO THE MERIT OF THE CASE WE FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT TDS ON VARIOUS EXPENDITURE WAS DEDUCTED BUT AN AMOUNT OF RS. 30,71,212/ - WAS CREDITED TO THE GOVERNMENT ACCOUNT ON 06 - 04 - 2006 AFTER EXP IRY OF PRESCRIBED TIME LIMIT BUT BEFORE THE DUE DATE OF FILING OF I.T.A NO. 281/RJT/2012 A.Y. 2006 - 07 PAGE NO ACIT VS. M/S STANDARD BUILDCON 4 RETURN I.E. 31 - 12 - 2006. THE LEARNED CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE BY PLACING RELIANCE ON THE DECISION OF THE ITAT AHMEDABAD IN THE CASE OF KANUBHAI RAMJIBHAI MAKWANA VS. IT O, CITED SUPRA. NOW, THE ISSUE IS SETTLED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. VERGIN CREATIONS IN GA N O. 302 OF 2011 DATED 23 - 11 - 2011 WHEREIN IT WAS HELD THAT THE AMEN DMENT IN SECTION 40(A)(IA) VIDE FINANCE ACT 2010 APPLIES RETROSPECTIVELY AND THEREFORE THE PERMISSIBLE DATE OF PAYMENT WAS EXTENDED FROM THE LAST DATE OF PREVIOUS YEAR TO THE DUE DATE OF FILING OF RETURN U/S 139(I) OF THE ACT. SINCE THERE IS NO DISPUTE AB OUT THE FACT THAT TDS WAS PAID BEFORE DUE DATE OF FILING OF RETURN BY THE ASSESSEE IN THIS CASE, WE FEEL NO NEED TO INTERFERE WITH THE ORDER PASSED BY HIM AND THE SAME IS HEREBY UPHELD. THIS GROUND OF THE REVENUE IS ALSO DISMISSED. 6 . IN THE RESULT, REVEN UES APPEAL IS DISMISSED. SD/ - SD/ - (A.MOHAN ALANKAMONY ) ( D. K. TYAGI ) ACCOUNTANT MEM BER JUDICIAL MEMBER AHMEDABAD: DATED /05 /2013 A K /LK ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE AT CAPTION PAGE SD/ - SD/ - (D. K. SRIVASTAVA) (T. K. SHARMA ) ACCOUNTANT MEM BER JUDICIAL MEMBER I.T.A NO. 281/RJT/2012 A.Y. 2006 - 07 PAGE NO ACIT VS. M/S STANDARD BUILDCON 5 O B EB / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT THE A.C.I.T., CIRCLE - 2, JAMNAGAR 2 . / RESPONDENT M/S. STANDARD INDUSTRIES, INDRAPRASTHA COMPLEX, PANCHESHWAR TOWER ROAD, JAMNAGAR 3 . / CONCERNED CIT , JAMNAGAR 4 . - / CIT (A) , JAMNAGAR 5 . , P , / DR, ITAT, RAJKOT 6 . [ / GUARD FILE. //TRUE COPY// BY ORDER/ , 7 P ,