Smt. Sitaben Nileshkumar Jagani, RAJKOT-GUJARAT V. The Assistant Commr. Income Tax, Cen.Cir-1, RAJKOT-GUJARAT

ITA 320/RJT/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9026 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 29-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DM RINDANI
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AH MEDABAD] (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 320/RJT/2016 (ASSESSMENT YEAR: 2012-13) SMT. SITABEN NILESHKLUMAR JAGANI 662, TAKSHSHILA SOCIETY-2, NEAR PHULCHHAB PRESS, RAJKOT V/S ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE- 1, RAJKOT (APPELLANT) (RESPONDENT) PAN: ABWPJ0830C APPELLANT BY : SHRI D. M. RINDANI, A.R. RESPONDENT BY : SHRI YOGESH PANDEY, CIT/DR ( )/ ORDER DATE OF HEARING : 30 -05-201 7 DATE OF PRONOUNCEMENT : 31 -05-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- 11, AHMEDABAD DATED 03.06.2016 PERTAINING TO A.Y. 2 012-13. ITA NO. 320/ RJT/2016 . A.Y. 2012-13 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN LAW IN UPHOLDING THE DISALLOWANCE OF INTEREST EXPENDITURE OF RS. 6,73,018/- U/S 40(A)(IA) OF THE ACT. 3. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS AND ON VERIFICATION OF THE P&L ACCOUNT, THE A.O. NOTICED T HAT THE ASSESSEE HAS CLAIMED INTEREST OF RS. 3,04,739/- WHICH WAS PAID T O NILESH DAMODARBHAI (HUF). THE A.O. FURTHER NOTICED THAT THE ASSESSEE H AS ALSO PAID INTEREST OF RS. 3,68,279/- TO M/S. NILKAMAL TRADERS. THE A.O. W AS OF THE FIRM BELIEF THAT SINCE THE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE O N THE ABOVEMENTIONED INTEREST PAYMENT, THE SAME HAS TO BE DISALLOWED U/S . 40(A)(IA) OF THE ACT. 4. THE A.O. RUBBISHED THE CLAIM OF THE ASSESSEE THAT T HE DEDUCTEES HAVE PAID TAX ON SUCH INCOME, THEREFORE, NO DISALLOWANCE IS T O BE MADE U/S. 40(A)(IA) READ WITH SECOND PROVISO. THE A.O. WAS OF THE OPINI ON THAT THE SECOND PROVISO HAS BEEN INSERTED BY THE FINANCE ACT, 2012 WITH EFFECT FROM 01.04.2013. THE A.O. COMPLETED THE ASSESSMENT BY DI SALLOWING RS. 6,73,018/-. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REITERA TED THE APPLICATION OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT. THE LD. D.R. ONCE AGAIN STATED THAT THE SAID PROVISO IS EFFECTIVE FROM 01.04.2013 AND HENCE NOT APPLICABLE TO THE FACTS OF THE CASE IN HAND. ITA NO. 320/ RJT/2016 . A.Y. 2012-13 3 7. WE HAVE CAREFULLY CONSIDERED THE IMPUGNED ISSUE QUA THE RELEVANT PROVISION READ WITH THE PROVISO. THE HONBLE HIGH C OURT OF DELHI IN THE CASE OF ANSAL HOUSING FINANCE & LEASING CO. LTD. 354 ITR 180 HAS HELD THAT THE SECOND PROVISO HAS RETROSPECTIVE EFFECT. THEREFORE, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF DE LHI (SUPRA), WE RESTORE THIS ISSUE TO THE FILES OF THE A.O. THE ASSESSEE IS DIRECTED TO FURNISH ALL THE DETAILS OF THE DEDUCTEES WITH RELEVANT CERTIFICATES AS PER THE PROVISIONS OF THE LAW. THE A.O. IS DIRECTED TO VERIFY AND SATISFY HIMSELF WITH THE DETAILS FURNISHED BY THE ASSESSEE AND DECIDE THE ISSUE AFRE SH IN THE LIGHT OF THE DECISION OF THE HONBLE HIGH COURT OF DELHI (SUPRA) . 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 31- 05 - 2017 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED: 31/05/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKO T