M/s. SMPS Consulatants Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-8(2), Ahmedabad

ITA 2819/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9532 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 15-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: A N SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI S.K. YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2819/AHD/2011 (ASSESSMENT YEAR: 2008-09) M/S. SMPS CONSULTANTS PVT. LTD. BSL BUILDING, KHAMASA GATE, AHMEDABAD-380 001 V/S INCOME TAX OFFICER, WARD- 8 (2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AACCS 9356 C APPELLANT BY : SHRI A.N. SHAH, AR RESPONDENT BY : SHRI DINESH SINGH, SR. D.R. ( )/ ORDER DATE OF HEARING : 10 -02-20 16 DATE OF PRONOUNCEMENT : 12 -02-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS PREFERRED AGAI NST THE ORDER OF LD. CIT(A)-XIV, AHMEDABAD DATED 15.09.2011 PERTAINING T O A.Y. 2008-09. ITA NO 2819/ AHD/2011 . A.Y. 2008-09 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 1,13,797/- MADE OUT OF ELECTRICITY EXPENDITURE. 3. THE ASSESSEE IS A SERVICE PROVIDER FOR PLANNING & C OMPREHENSIVE DESIGNS, CIVIL & STRUCTURAL ENGINEERING DESIGNING, PROJECT MANAGEMENT ETC. THE RETURN FOR THE YEAR WAS SELECTED FOR SCRUT INY ASSESSMENT AND DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS. THE A.O NOTICED THAT THE ASSESSEE HAS DEBITED A SUM OF RS. 4,03,186/- BEING ELECTRICITY EXPENSES. ON FURTHER PROBE, THE A.O FOU ND THAT THE SAID AMOUNT INCLUDED RS. 1,13,797/- TOWARDS PENALTY FOR TAMPERING THE METER. THE ASSESSEE WAS ASKED TO JUSTIFY THIS CLAIM . THE ASSESSEE FILED A DETAIL REPLY STATING THAT DURING THE COURSE OF TH E INSPECTION OF THE ELECTRICITY METER, THE INSPECTING PARTY FOUND THE M ETER TO BE TAMPERED AND ACCORDINGLY THE ELECTRICITY BILL WAS ENHANCED. THE A.O WAS OF THE OPINION THAT THIS IS THE NOTHING BUT A PENALTY FOR TAMPERING THE METER AND ANY PENALTY FOR INFRINGEMENT OF ANY LAW IS NOT AN ALLOWABLE DEDUCTION. ACCORDINGLY AMOUNT OF RS. 1,13,797/- WAS DISALLOWED. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. BEFORE US, THE LD. COUNSEL FOR THE ASSESSE E STATED THAT THE ASSESSEE AGREED FOR THE ENHANCED ELECTRICITY BILL T O GET UNINTERRUPTED SUPPLY OF ELECTRICITY AND THE IMPUGNED PAYMENT IS N OT A PENALTY FOR ANY INFRINGEMENT OF LAW. THE LD. COUNSEL DREW OUR A TTENTION TO THE ELECTRICITY BILL PLACED AT PAGE 16 OF THE PAPER BOO K. THE LD. COUNSEL ALSO DREW OUT ATTENTION TO THE LEDGER COPY OF ACCOUNT PL ACED AT PAGE 12 OF THE PAPER BOOK. THE LD. COUNSEL CONCLUDED BY SAYING THAT THE PAYMENT WAS IN THE NORMAL COURSE OF BUSINESS AND SHOULD BE ALLOWED. PER ITA NO 2819/ AHD/2011 . A.Y. 2008-09 3 CONTRA, THE LD. D.R. STRONGLY SUPPORTED THE ASSESSM ENT ORDER AND THE ORDER OF THE FIRST APPELLATE AUTHORITY. 5. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED THE RELE VANT DOCUMENTARY EVIDENCES BROUGHT ON RECORD BEFORE US. WE FIND THAT THE ELECTRICITY BILL IS FOR RS. 1,32,763/- AND THERE IS NO REFERENCE/MEN TION OF THE AMOUNT OF RS. 1,13,797/-. THE LD. COUNSEL ALSO FAILED TO E XPLAIN HOW THIS AMOUNT OF 1,13,797/- IS INCLUDED IN THE AMOUNT OF R S. 1,32,763/- NOR THE LD. D.R. COULD FURNISH ANY EVIDENCE/DETAIL FOR THE AMOUNT OF RS. 1,13,797/-. THOUGH THE COPY OF THE GENERAL LEDGER A CCOUNT AT PAGE 12 OF THE PAPER BOOK SHOWS A DEBIT ENTRY OF RS. 1,13,7 97/- ON 31.03.2008 BUT THEN THERE IS NO MENTION OF THE ELECTRICITY BIL L AMOUNT OF RS. 1,32,763/-. 6. IN OUR CONSIDERED OPINION, THE FACTUAL MATRIX HAVE NOT BEEN PROPERLY BROUGHT ON RECORD, THEREFORE, IN THE INTEREST OF JU STICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILE OF A.O. THE ASSESSE E IS DIRECTED TO EXPLAIN THE AMOUNT OF RS. 1,13,797/- IN THE ELECTRICITY BIL L. THE ASSESSEE IS FURTHER DIRECTED TO EXPLAIN WHETHER THE SAID OF AMO UNT OF RS. 1,13,797/- IS A PENALTY FOR THE INFRINGEMENT OF ELE CTRICITY ACT OR IT IS MERELY COMPENSATORY NATURE. THE A.O IS DIRECTED TO VERIFY THE DETAILS AND DECIDE THE ISSUE AFRESH AS PER THE PROVISIONS O F LAW. 7. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 12 - 02 - 201 6. SD/- SD/- (S. K. YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY