The ITO, Ward-9(4), Ahmedabad V. Shri Sanjay Gandalal Patel, Ahmedabad

ITA 2826/AHD/2011

• Counselvise Citation: 282620514 RSA 2011
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 15-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2826/AHD/2011 ASSESSMENT YEAR :2008-09 INCOME TAX OFFICER, WARD-9(4), AHMEDABAD V/S . SHRI SANJAY GANDALAL PATEL PROP VEER MARKETING SERVICE & SHREE SECURITY 306, JALARAM COMPLEX, GEETA MANDIR, AHMEDABAD-380022 PAN NO.AFAPP2570F (APPELLANT) .. (RESPONDENT) / BY APPELLANT SHRI VINOD TANWANI, SR-DR / BY RESPONDENT NONE / DATE OF HEARING 28-02-2012 / DATE OF PRONOUNCEMENT 23-03-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THE PRESENT APPEAL HAS BEEN FILED AGAINST THE ORDE R DATED 16-09-2011 PASSED BY THE LD. COMMISSIONER OF INCOME-TAX (APPEA LS)-XV, AHMEDABAD FOR ASSESSMENT YEAR 2008-09. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. IT IS TRAN SPIRED FROM RECORDS THAT THE NOTICE HAS BEEN DULY SERVED UPON THE ASSESSEE. IN VIEW OF THE FACT THAT THE NOTICE IS DULY SERVED UPON THE ASSESSEE, WE PROCEED TO HEAR THIS APPEAL EX PARTE. ITA NO.2826/AHD/2011 A.Y. 2008-09 ITO WD-9(4) ABD V. SH SANJAY G PATEL PAGE 2 3. THE FACTUAL MATRIX IN THE PRESENT CASE IN BRIEF IS THAT THE ASSESSEE FILED A RETURN DECLARED TOTAL INCOME OF RS.3,75,430/- FOR THE ASSESSMENT YEAR 2008- 09. THE CASE WAS SELECTED FOR SCRUTINY AND DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE VERIFYING THE BOOKS OF ACCOUNT OF THE ASSESSEE NOTICED THAT DURING THE YEAR UNDER CONSIDE RATION PAID VEHICLE CHARGES UP TO FEB08 TO MIHIR DOSHI OF RS.88,750/-, M/S VEER MARKETING OF RS.1.98 LAKH AND KARNA CONSULTANCY OF RS.8,57,330/- . IT WAS NOTICED THAT THE AFORESAID PAYMENTS OF THE ASSESSEE WAS DEDUCTED TAX AT SOURCE U/S.194C OF THE ACT BUT DID NOT DEPOSIT THE SAME UP TO 31-03-20 08. THE AO VIDE ORDER- SHEET DATED 29-11-2010 REQUESTED THE ASSESSEE TO SH OW-CAUSE AS TO WHY RS.11,40,085/- SHOULD NOT BE DISALLOWED. IN RESPONS E THERETO, THE ASSESSEE MADE A DETAILED REPLY AND ONE OF THE SUBMISSION OF THE ASSESSEE WAS THAT THE PROVISIONS OF SECTION 40(A)(IA) HAS BEEN AMENDED WI TH EFFECT FROM ASSESSMENT YEAR 2008-09, AND ACCORDINGLY WOULD APPL Y RETROSPECTIVELY LOOKING TO THE INTENTION BEHIND AMENDMENT IN THIS S ECTION. HOWEVER, THE ASSESSING OFFICER DID NOT AGREE WITH T HE SUBMISSION MADE BY THE ASSESSEE AND DISALLOWED THE EXPENSES U/S.40(A)( IA). THE ASSESSEE FEELING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER PRE FERRED APPEAL BEFORE LD. CIT(A). THE LD. CIT(A) RELYING UPON THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE MATTER OF KANUBHAI RAMJIBHAI V ITO IN ITA NO.3983/AHD/2008 ORDER DATED 03-12-2010 ALLOWED THE APPEAL OF THE ASSESSEE. 4. THE REVENUE FEELING AGGRIEVED BY THE ORDER OF LD . CIT(A) HAS RAISED THE FOLLOWING GROUND OF APPEAL:- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION OF RS.11,42,085/- MADE BY THE ASSESSING OFFICER U/S.40(A)(IA) OF THE ACT. 5. WE HAVE HEARD THE LD. SR-DR FOR THE REVENUE PERU SED THE RECORDS AND ORDERS PASSED BY THE AUTHORITIES BELOW. THE ISS UE INVOLVED IN THE PRESENT ITA NO.2826/AHD/2011 A.Y. 2008-09 ITO WD-9(4) ABD V. SH SANJAY G PATEL PAGE 3 APPEAL HAS NOW BEEN DECIDED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. VIRGIN CREATORS IN GA NO.3200/2011 DATED 23-11-2011 AGAINST THE REVENUE. HOWEVER, IT IS NOTEWORTHY THAT THE SPECIAL BENCH OF ITAT MUMBAI IN THE CASE OF BHARATI SHIPYARD LTD. V. DCIT IN ITA NO.2404/MUM/2009 IN ORDER DATED 12-09-2011 HAS TAKEN A VIEW THAT THE AMENDMEN T IS PROSPECTIVE IN NATURE AND WOULD APPLY FROM THE YEAR WHEN AMENDMENT IS MADE. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE CALCUTTA HIGH COU RT IN THE CASE OF VIRGIN CREATORS (SUPRA) WE FIND NO INFIRMITY INTO THE ORDE R OF LD. CIT(A). HENCE, THIS GROUND OF REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23/03 /2012 SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP - 23/03/2012 '() * +, +, +, +, --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. )-1 + +2 / CONCERNED CIT 4. + +2- / CIT (A) 5. .56 ---1, + -1 , '() / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ +, , /TRUE COPY/ =/ ' > + -1 , '() *