The ITO, Ward-1, Navsari V. Shri Ashrafbhai Habibbhai Memon, Surat

ITA 2810/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0459 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 12-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTA NT MEMBER INCOME-TAX OFFICER, WARD-1, NAVSARI (APPELLANT) VS ASHRAFBHAI HABIBBHAI MEMON PROP. M/S. H.M, TRADERS, SAHAKARI RICE MILL COMPOUND, OLD VALSAD ROAD, CHIKHLI PIN:396521 PAN:ACSPM1236G (RESPONDENT) REVENUE BY: SRI A.K.PANDEY, SR. D.R. ASSESSEE BY: NONE DATE OF HEARING : 11-3-2013 DATE OF PRONOUNCEMENT : 22-3-2013 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A), VALSAD DATED 30-09-2012. 2. THE REVENUE IN THIS APPEAL IS AGGRIEVED BY THE A CTION OF LD. CIT(A) IN DELETING THE DISALLOWANCE OF RS. 11,62,860/- MAD E BY ASSESSING OFFICER U/S 40A(3) OF THE ACT. ITA NO. 2810/AHD/2012 A.Y.:-2008-09 I.T.A NO.2810/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. ASHRAFBHAI HABIBBHAI MEMON 2 3. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE FACT THAT NOTICE WAS SENT TO THE ASSESSEE FOR T ODAYS HEARING. WE PROCEEDED TO DECIDE THE APPEAL AFTER HEARING LD. D. R. 4. BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSE SSMENT PROCEEDINGS ASSESSING OFFICER OBSERVED THAT ASSESSEE HAS MADE C ASH PAYMENT TO VARIOUS TRANSPORTERS EXCEEDING RS. 20,000/- IN SINGLE DAY. KEEPING IN VIEW THE PROVISIONS OF SECTION 40A(3) OF THE ACT, THE ASSESS ING OFFICER MADE AGGREGATE DISALLOWANCE OF RS. 11,62,260/- AFTER ISS UING SHOW CAUSE NOTICE TO THE ASSESSEE AND VERIFYING THE DETAILS FILED BY THE ASSESSEE IN RESPONSE TO THIS NOTICE. 5. IN APPEAL THE CIT(A) DELETED THE ADDITION EXCEPT ONE PAYMENT OF RS.25,400/-TO M/S CHAWLA ROADLINES. 6. WHILE GIVING RELIEF TO THE ASSESSEE, LD. CIT(A) HAS OBSERVED AS UNDER:- 5.3 I HAVE CONSIDERATION THE OBSERVATION THE AO IN THE ASSESSMENT ORDER AS WELL AS THE CONTENTION RAISED BY THE AR OF THE APPELLANT IN THE WRITTEN SUBMISSION. I AGREE WITH THE CONTENTION OF THE AR OF THE APPELLANT THAT THE AS PER THE PROVISIONS OF SECTION 40A(3)(A) OF THE ACT, EACH PAYMENT MADE OTHER THAN BY AN ACCOUNT PAY EE CHEQUE OR BY ACCOUNT PAYEE BANK DRAFT AT ONE TIME IN CASH ABOVE THE PRESCRIBED LIMIT OF RS. 20,000/- AND CERTAINLY NOT THE AGGREGA TE OF SUCH PAYMENT MADE AT DIFFERENT TIME, NOT COVERED UNDER THE PURV IEW OF THIS SECTION. THUS, THE RELEVANT PROVISIONS ARE APPLICABLE ONLY W HEN EACH PAYMENT IS IN EXCESS OF RS. 20,000/- AND HENCE, IT CANNOT B E APPLIED AUTOMATICALLY TO THE AGGREGATE PAYMENTS MADE ON THE PARTICULAR DAY. MORE PARTICULARLY, IN THE PRESENT CASE, WHICH IS RE LEVANT TO THE ASSTT. YEAR 2008-09, WHILE THE EFFECTIVE DATE OF AMENDMENT OF SECTION 40A(3) IS 1 ST APRIL 2008-09 I.E. APPLICABLE FROM THE ASSTT. YEAR 2009- I.T.A NO.2810/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. ASHRAFBHAI HABIBBHAI MEMON 3 10 AS AMENDED BY FINANCE ACT, 2008 AND THUS, THE AM ENDED PROVISIONS CANNOT BE APPLIED RETROSPECTIVELY. THUS , THE ADDITION MADE BY THE A.O. IS NOT JUSTIFIED. HOWEVER, THE APPELLA NT MADE PAYMENT TO CHAWLA ROADLINES, NAPUR OF RS. 25,400/- AT ON TIME IN CASH ABOVE THE PRESCRIBED LIMIT AS PER SECTION 40A(3) OF THE ACT. THEREFORE, THE ADDITION MADE BY THE A.O. IN RESPECT OF CASH PAYMEN T U/S 40A(3)(A) IS DELETED EXCEPT PAYMENT MADE TO CHAWLA ROADLINES, NA GPUR. THUS, THIS GROUND OF APPEAL IS PARTLY ALLOWED. 7. SINCE THE ABOVE FINDING OF THE LD. CIT(A) IS IN CONFIRMITY WITH ORISSA HIGH COURT DECISION IN THE CASE OF CIT VS. ALOO SUP PLY CO. [1980] REPORTED IN 121 ITR 680 AND NO CONTRADICTORY DECISION HAS BE EN RELIED BY THE REVENUE, WE FEEL NO NEED TO INTERFERE WITH THE ORDE R PASSED BY LD. CIT(A) AND THE SAME IS HEREBY UPHELD. 8. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (T.R.MEENA) ( D.K.TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 22 /03/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# I.T.A NO.2810/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. ASHRAFBHAI HABIBBHAI MEMON 4 STRENGTHENED PREPARATION & DELIVERY OF ORDERS IN TH E ITAT 1) DATE OF TAKING DICTATION 14-03-2013 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE N.A. 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 18-03-2013 4) DATE OF CORRECTION 18-03-2013 5) DATE OF FURTHER CORRECTION XXXX 6) DATE OF INITIAL SIGN BY MEMBERS 19-03-2013 7) ORDER UPLOADED ON 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) ORDER SENT TO BENCH CLERK 22-03-2013