The ACIT, Circle-5(2), Ahmedabad V. M/s. J & J Enterprise, Ahmedabad

ITA 3226/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8468 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 05-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.3226/AHD/2014 ( / ASSESSMENT YEAR : 2011-12) ASST.CIT CIRCLE-5(2) AHMEDABAD / VS. M/S. J & J ENTERPRISE GROUND FLOOR, MRUDUL TOWER B/H. TIMES OF INDIA ASHRAM ROAD AHMEDABAD-380 009 # ./ ./ PAN/GIR NO. : AABFJ 3063 D ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) #&( / APPELLANT BY : SHRI RAJDEEP SINGH, SR.DR '#& )( / RESPONDENT BY : SHRI S.N. DIVATIA, AR *+ ), / DATE OF HEARING 07/09/2017 -./0 ), / DATE OF PRONOUNCEMENT 12 / 09 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-6, AHMED ABAD [CIT(A) IN SHORT] DATED 16/09/2014 FOR THE ASSESSMENT YEAR (AY) 2011-12. 2. THE REVENUE RAISED THE FOLLOWING EFFECTIVE GROU ND OF APPEAL:- ITA NO.3226/AHD /2014 ACIT VS. M/S.J&J ENTERPRISE ASST.YEAR 2011-12 - 2 - THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLO WING THE APPEAL ON THE ISSUE REGARDING THE DISALLOWANCES U/S.40(A)(IA) OF SALES INCENTIVE OF RS.1,55,89,241/- AS NO TDS WAS DEDUCTED U/S.194H OF THE ACT, AND THEREBY ALLOWING RELIEF TO THE AMOUNT OF RS.1,55,89 ,441/-, WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE A.O. THE LD.CIT(A) HAS IGNORED THE V ITAL FACTS OF THE CASE AND THE LEGAL POSITION WITH REGARD TO PROVISION OF SECTION 194H OF THE IT ACT. 3. BRIEFLY STATED, THE ASSESSEE IS A PARTNERSHIP-F IRM AND ENGAGED IN THE BUSINESS AS DEALER OF SHEELA FOAM P.LTD. (SFPL) FOR SALE OF ITS PRODUCTS IN PUF FOAM SHEETS, PILLOW, CUSHIONS, COVERED MATTR ESSES ETC. THE ASSESSEE FILED RETURN OF INCOME FOR AY 2011-12 DECL ARING TOTAL INCOME OF RS.64,50,850/-. THE RETURN OF ASSESSEE WAS SUBJECTE D TO SCRUTINY ASSESSMENT. IN THE COURSE OF THE ASSESSMENT PROCEE DINGS, THE ASSESSING OFFICER (AO) INTER-ALIA MADE DISALLOWANCE U/S.40(A)(IA) OF RS.1,55,89,241/- TOWARDS SALES INCENTIVE EXPENSES O N THE GROUND THAT TDS UNDER S.194H HAS NOT BEEN DEDUCTED AND PAID BY THE ASSESSEE IN TERMS OF STATUTORY OBLIGATION CAST UPON HIM. THE A SSESSEE PREFERRED APPEAL BEFORE THE CIT(A), WHERE THE ACTION OF AO W AS REVERSED. 4. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENU E IS IN APPEAL BEFORE US. 5. THE LD.AR, AT THE OUTSET, RELIED UPON THE ORDER OF THE CIT(A) AND SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT A ITA NO.3226/AHD /2014 ACIT VS. M/S.J&J ENTERPRISE ASST.YEAR 2011-12 - 3 - BENCH AHMEDABAD IN ASSESSEES OWN CASE IN ITA NO.53 6/AHD/2013 FOR AY 2009-10, ORDER DATED 11/10/2013. 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DER OF THE AO. 7. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL AV AILABLE ON RECORD. WE FIND THAT THE CIT(A) HAS FOLLOWED THE DECISION O F THE COORDINATE BENCH OF THIS TRIBUNAL RENDERED IN ASSESSEES OWN C ASE IN ITA NO.536/AHD/2013 FOR AY 2009-10, DATED 11/10/2013. IT IS THE CONTENTION ON BEHALF OF THE ASSESSEE THAT THE FACTS IN THIS YEAR ARE ALSO SIMILAR. THERE BEING NO CHANGE IN FACTS AND CIRCUM STANCES POINTED OUT ON BEHALF OF THE REVENUE, WE DO NOT SEE ANY INFIRMITY IN THE CONCLUSION DRAWN BY THE CIT(A). WE NOTE THAT THE IDENTICAL I SSUE ON FACTS HAVE BEEN RECENTLY DECIDED IN FAVOUR OF THE ASSESSEE IN ITA NO.2748/AHD/2014 ORDER DATED 04/09/2017 ALSO. IN THE LIGHT OF ABOVE OBSERVATIONS, THE GRIEVANCE OF REVENUE CANNOT BE E NTERTAINED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 12 / 09 /2017 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 12 / 09 /2017 4..*,.*../ T.C. NAIR, SR. PS ITA NO.3226/AHD /2014 ACIT VS. M/S.J&J ENTERPRISE ASST.YEAR 2011-12 - 4 - !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 567, 8, / CONCERNED CIT 4. 8, ( ) / THE CIT(A)-6, AHMEDABAD 5. 9:;,*67 , 67 0 , 5 / DR, ITAT, AHMEDABAD 6. ;<+ / GUARD FILE. / BY ORDER, '9,, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 7.9.17 (COPIED MATTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.9.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.12.9.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12.9.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER