The ITO, Ward-5(4), Surat V. Shri Ugrasen Ramraj Yadav, Surat

ITA 2882/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0505 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 26-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KR
• Assessee Lawyers: TARIN SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI D.K. TYAGI JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTAN T MEMBER I T O, WARD-5(4), SURAT ROOM NO. 316, AAYAKAR BHAVAN, MAJURAGATE, SURAT (APPELLANT) VS. SHRI UGRASEN RAMRAJ YADAV. 8/9, KARUNA SAGAR SOCIETY, OPP.: TVS AUTO POINT, DUMBHAL, SURAT PA NO. AALPY3211C (RESPONDENT) REVENUE BY : SRI RAHUL KR., SR. D.R. ASSESSEE BY : SRI TARIN SHAH, A.R. DATE OF HEARING : 18-02-2013 DATE OF PRONOUNCEMENT : 22-02-2013 / ORDER PER : D.K TYAGI, JUDICIAL MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF L D. CIT(A)-I SURAT DATED 30/10/2012. 2. THE ONLY EFFECTIVE GROUND TAKEN BY THE REVENUE R EADS AS UNDER:- ITA NO. 2882/AHD/2012 A.Y.:-2009-10 ITA NO. 2882/AHD/2012 A.Y. 2009-10 PAGE NO ITO VS. UGRASEN RAMRAJ YADAV 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 13 ,04,551/- MADE ON ACCOUNT OF NON DEDUCTION OF TDS, TOWARDS FREIGHT AN D HIRING CHARGES EXPENSES AND DISALLOWED EXPENSES, AS PER PROVISION ON SECTION40(A)(IA) OF THE INCOME TAX ACT. 3. THE ASSESSING OFFICER WHILE MAKING ADDITION OF R S. 13,04,551/- HAS OBSERVED AS UNDER:- 10. AS REGARDS ADDITION OF RS. 13,04,551/- THE ASS ESSING OFFICER GAVE THIS FINDINGS IN PARA 5 OF THE ASSESSMENT ORDE R WHICH IS REPRODUCED HEREIN UNDER:- 5. I HAVE CAREFULLY GONE THROUGH THE SUBMISSION OF THE ASSESSEE AND THE SAME IS DEVOID OF MERITS AND EYE O F LAW. ON VERIFICATION OF THE RECORD, IT IS SEEN THAT ASSESSE E HAS SUBMITTED FORM NO. 15 J IN THE OFFICE OF THE COMMISSIONER OF INCOME TAX ON 01.12.2011. ACCORDING TO SUB RULE 4 OF THE RULE 29D OF THE INCOME TAX RULE 1962 THE PARTICULARS REFERRED TO I N SUB-RULE (3) SHALL BE FURNISHED- (I) TO THE COMMISSIONER OF INCOME TAX, SO DESIGNATE D BY THE CHIEF COMMISSIONER OF INCOME TAX, WITHIN WHO SE AREA OF JURISDICTION, THE OFFICE OF THE CONTRACTOR REFERRED TO IN SUB-RULE (3) IS SITUATED. (II) ON OR BEFORE THE 30 TH JUNE FOLLOWING THE FINANCIAL YEAR. LOOKING TO THE ABOVE FACTS THE ASSESSEE IS REQUIRED TO FURNISHING FORM NO. 15J IN THE OFFICE OF THE COMMISSIONER OF I NCOME TAX ON OR BEFORE 30 TH JUNE, 2009. HOWEVER, IN THIS CASE, THE ASSESSEE HAD SUBMITTED THE FORM NO 15J ON 01.12.201 1 WHICH IS BEYOND THE PRESCRIBED DATE IN THE INCOME TAX RULE, 1962. THEREFORE, THE SAME IS NOT ACCEPTED. FURTHER, ASSE SSEE HAS RELIED ON THE DECISION OF THE HONBLE ITAT AHMEDABA D BENCH A AHMEDABAD IN ITA NO. 2228/AHD/2009 A.Y. 2006-07 WHERE THE HONBLE ITAT HELD IN FORM NO. 15J HAVE BEEN REC EIVED DURING THE YEAR, AND FORM NO 15J IS FILED. THERE I S NO VIOLATION ITA NO. 2882/AHD/2012 A.Y. 2009-10 PAGE NO ITO VS. UGRASEN RAMRAJ YADAV 3 OF PROVISO U/S 40A(A)(IA). SINCE THE DEPARTMENT HA S NOT ACCEPTED THE ABOVE JUDGMENT OF THE HONBLE ITAT, TH E ASSESSEES THESE CONTENTION IS ALSO NOT ACCEPTED. THEREFORE, THE ASSESSEES PLEA REGARDING SUBMISSION OF 15 J IN THE COMMISSIONER OF INCOME TAX IS NOT ACCEPTED AND EXP ENSES OF RS. 77,959/- AS FREIGHT PAID AND RS. 12,26,592/- PA ID AS TRUCK HIRING CHARGES TOTALING TO RS. 13,04,551/- ARE DISA LLOWED U/S 40(A)(IA) OF THE ACT. THE AMOUNT OF RS. 13,04,551/ - ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- 11. THE APPELLANT DURING THE COURSE OF APPELLATE P ROCEEDINGS SUBMITTED THAT THE APPELLANT HAD RECEIVED THE FORM NO. 15J FROM THE TRANSPORTS AND ONLY FORM NO. 15J WAS SUBMI TTED LATE, WHEN THE ASSESSMENT PROCEEDINGS WERE UNDER PROGRESS . THE APPELLANT RELIED UPON THE JUDGMENT OF AHMEDABAD TRI BUNAL REFERRED TO IN PAGE 5 OF THE ASSESSMENT ORDER AND R EPORTED IN 46 SOT 469(AHD). IN THE SAID JUDGMENT, THE HONBLE IT AT AHMEDABAD HELD THAT IF THE FORM NO. 15J WAS RECEIV ED DURING THE YEAR AND THE TAX IS NOT DEDUCTIBLE. 12. THE ASSESSING OFFICER HAS MENTIONED THAT THE SA ID JUDGMENT OF THE HONBLE ITAT HAS NOT BEEN ACCEPTED BY THE DEPARTMENT. HOWEVER, THE ITAT AHMEDABAD BEING THE JURISDICTIONAL TRIBUNAL ITS DIRECT JUDGMENT ON THIS ISSUE REFERRED (SUPRA) IS TO BE FOLLOWED BY THE UNDERSIGNED. CONS EQUENTLY, THE APPEAL IS ALLOWED IN PRINCIPLE. HOWEVER, THE ASSESS ING OFFICER SHALL DELETE THE ADDITION OUT OF RS. 13,04,551/- TO THE EXTENT, TO WHICH THE APPELLANT HAD FURNISHED EVIDENCE OF HAVIN G RECEIVED FROM NO. 15J AT THE TIME OF ASSESSMENT PROCEEDINGS. SINCE THERE IS CATEGORICAL FINDINGS OF THIS ASPECT IN THE ASSESSMENT ORDER, THE EXACT QUANTUM OF RELIEF CANNOT BE QUANTI FIED. 5. SINCE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSE E WHILE PLACING RELIANCE ON THE DECISION OF THIS TRIBUNAL IN THE C ASE OF VALLIBHAI KHANBHAI MANKAD, PROP. ABAD ROADWAYS VS. DCIT(OSD) IN ITA NO . 2228/AHD/2009 ITA NO. 2882/AHD/2012 A.Y. 2009-10 PAGE NO ITO VS. UGRASEN RAMRAJ YADAV 4 FOR A.Y. 2006-07 REPORTED IN 46 SOT 469(AHD), WE FE EL NO NEED TO INTERFERE WITH THE ORDER PASSED BY HIM AND THE SAME IS HEREBY ALLOWED. 6. IN THE RESULT, THE 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 JUDICIAL MEMBER AHMEDABAD : DATED 22 /02/2013 A.K. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#