M/s. AMA Transport, Baroda V. The Income tax Officer,Ward-2(1), Baroda

ITA 3127/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72919 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-12-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 08-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Assessee Lawyers: M K PATEL
• Keywords: Non-deduction of tax

Judgement Text

, , , , SMC, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, SMC BENCH . .. . . .. . , ! ! ! ! BEFORE SHRI G.C. GUPTA, VICE-PRESIDENT ITA NO.3127/AHD/2011 [ASSTT.YEAR : 2005-2006] M/S.AMA TRANSPORT 3-4, NEW PANCHAYAT SHOPPING CENTRE NEAR BAJWA POST OFFICE BAJWA DSIT. VADODARA 391 310. PAN : AGAPA 0451 B /VS. ITO, WARD-2(1) VADODARA. ( (( (#$ #$ #$ #$ / APPELLANT) ( (( (%&#$ %&#$ %&#$ %&#$ / RESPONDENT) '() * + !/ ASSESSEE BY : SHRI M.K. PATEL -. * + !/ REVENUE BY : SHRI D.K. MISHRA, SR.DR ./ * )01/ DATE OF HEARING : 18 TH DECEMBER, 2013 234 * )01/ DATE OF PRONOUNCEMENT : 03-02-2014 !5 / O R D E R THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-II, BARODA DATED 09.09.2011. 2. THE ONLY GROUND OF THE APPEAL OF THE ASSESSEE IS AS UNDER: 1. THE CIT(A) HAS CONFIRMED THE PENALTY. AGGRIEVE D AGAINST SUCH PENALTY THE ASSESSEE FIRM HAS PREFERRE D THIS APPEAL BEFORE YOUR HONOUR. IN THE PRESENT CASE THE AO HAS NOT ESTABLISHED THE GUILTY MIND OF THE ASSESSEE. BY JU ST NOT DEDUCTING TDS WHILE RECORDING THE EXPENSES THE ASSESSEE AHS N OT CONCEALED INCOME AND SO NO PENALTY SHOULD BE CHARGED FOR IT. ITA NO.3127/AHD/2011 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE DISALLOWANCE WAS MADE IN THE ASSESSMENT OF THE ASSE SSEE UNDER SECTION 40(A)(IA) OF THE ACT DUE TO NON-DEDUCTION OF TDS AT SOURCE ON THE FREIGHT PAYMENT DURING THE COURSE OF TRANSPORT BUSINESS OF THE ASSESSEE. HE SUBMITTED THAT THIS IS THE FIRST YEAR OF APPLICABIL ITY OF SECTION 40(A)(IA) OF THE ACT. ON THIS AMOUNT OF DISALLOWANCE MADE DUE T O DEEMING CLAUSE OF HIGHLY TECHNICAL NATURE, THE DEPARTMENT HAS LEVIED PENALTY FOR CONCEALMENT OF INCOME UNDER SECTION 271(1)(C) OF TH E ACT. HE SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE ITAT, AHMEDABAD BENCH IN THE CASE OF ITO VS. SHRI V ISHAL MADHUSUDANBHAI CHOKSHI, ITA NO.62/AHD/2013 ORDER DA TED 5.7.2013 WHEREIN IN SIMILAR FACTS THE ORDER OF THE CIT(A) DE LETING THE PENALTY LEVIED UNDER SECTION271(1)(C) OF THE ACT WAS CONFIR MED BY THE TRIBUNAL. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO A ND THE CIT(A). 4. I HAVE CONSIDERED RIVAL SUBMISSIONS. I FIND THA T THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS LEVIED ON THE AMOU NT OF DISALLOWANCE MADE ON THE GROUND OF APPLICABILITY OF SECTION 40(A )(IA) OF THE ACT, DUE TO NON-DEDUCTION OF TAX AT SOURCE ON THE FREIGHT PAYME NT MADE BY THE ASSESSEE. THIS IS A CLEAR CASE OF A CLAIM OF EXPEN DITURE, WHICH HAS NOT BEEN ACCEPTED BY THE REVENUE DUE TO APPLICABILITY O F SOME PROVISION OF LAW. ALL THE MATERIAL FACTS WERE BEFORE THE AO AT THE TIME OF ASSESSMENT ITSELF. THE HONBLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD., (2010) 322 ITR 158 (SC) HELD TH AT BY ANY STRETCH OF IMAGINATION, MAKING AN INCORRECT CLAIM IN LAW CANNO T TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS OF INCOME. IN SI MILAR FACTS, THE ITAT, AHMEDABAD BENCH IN ITO VS. SHRI VISHAL MADHUSUDANBH AI CHOKSHI (SUPRA) HAS CONFIRMED THE ORDER OF THE CIT(A) DELET ING THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. IN THESE FACTS OF THE CASE, I HOLD THAT IT ITA NO.3127/AHD/2011 IS NOT A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, WHICH IS ACCORDINGLY DELETED AND THE GROUND OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- ( . .. . . .. . /G.C. GUPTA) /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD