Eimco Elecon (India) Ltd., Anand V. The ACIT.,Anand Circle, Anand

ITA 3252/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94278 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 31-07-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 23-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADIPKUMAR MAJUMDAR
• Keywords: Depreciation; Revenue expenditure; Capital expenditure
• Section: 143(3); 80G; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND S.S. GODARA JUDICIAL MEMBER I.T.A. NO. 3101/AHD/2011.(A.Y.2008-09) I.T.A. NO.3252/AHD/2011.(A.Y. 2002-03) EIMCO ELECON (INDIA) LTD., ANAND SOJITRA ROAD, VALLABH VIDYANAGAR ANAND. PAN AAACE 4645 C V/S. ASSISTANT COMMISSION ER OF INCOME TAX, ANAND CIRCLE, ANAND. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI SUNIL TALATI, A.R. REVENUE BY SHRI PRADIPKUMAR MAJUMDAR, SR. D.R. / DATE OF HEARING :31-07-2015 / DATE OF PRONOUNCEMENT: 14/08/2015 / O R D E R PER ANIL CHATURVEDI ACCOUNTANT MEMBER: THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST TWO SEPARATE ORDERS OF CIT (A)-IV, BARODA DATED 07-10-2011 AND 0 8-11-2011 FOR ASSESSMENT YEARS 2008-09 AND 2002-03 RESPECTIVELY. WE FIRST TAKE UP ITA NO.3252/AHD/2011 A.Y. 2002-0 3 ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI AL ON RECORD ARE AS UNDER. 3. THE ASSESSEE IS A COMPANY STATED TO BE ENGAGED I N THE BUSINESS OF MANUFACTURING OF MINING MACHINERY FOR UNDERGROUN D OPEN CAST AND METAL MINES. THE ASSESSEE FILED ITS RETURN OF INCO ME FOR A.Y. 2002-03 ON 25-10-2002 DECLARING TOTAL INCOME OF RS.9,05,97, 700/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESS MENT WAS FRAMED U/S. 143(3) VIDE ORDER DATED 31-03-2005 AND THE TOT AL INCOME WAS DETERMINED AT RS.9,55,29,578/- INTERALIA BY MAKING VARIOUS ADDITIONS. AGAINST THE QUANTUM ADDITION MADE, ASSESSEE PREFERR ED APPEAL BEFORE THE LD. CIT (A) AND THEREAFTER THE SECOND APPEAL WA S PREFERRED BEFORE THE HONBLE TRIBUNAL. OUT OF THE VARIOUS ADDITIONS THAT WERE MADE BY THE ASSESSING OFFICER, ADDITIONS THAT WERE CONFIRME D BY HONBLE TRIBUNAL WAS WITH RESPECT TO THE DISALLOWANCE OF COMMISSION PAID TO GSA COMMERCIAL PVT. LTD., (RS.11,87,682), DISALLOWANCE OF REGISTRATION CHARGES OF VEHICLES (RS.1,22,627/-) AND WRONG DEDUC TION U/S. 80G OF RS.2,50,000/-. ON THE AFORESAID DISALLOWANCES THAT WERE CONFIRMED BY TRIBUNAL AND WHICH HAD ATTAINED FINALITY, ASSESSING OFFICER VIDE ORDER DATED 30-7-2010 HELD THAT ASSESSEE HAS FURNISHED IN ACCURATE PARTICULARS OF INCOME AND THEREBY CONCEALED THE INCOME WHICH LE ADS TO THE ATTRACTION OF PROVISIONS OF SEC. 271(1)(C) OF THE A CT AND ACCORDINGLY LEVIED PENALTY OF RS.4,67,780/- U/S. 271(1)(C) OF T HE ACT. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED TH E MATTER BEFORE THE CIT (A) WHO VIDE ORDER DATED 8-11-2011 DISMISSED TH E APPEAL OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF CIT (A), ASSESSEE IS N OW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 3 1. THE LD.CIT (A) HAS ERRED IN CONFIRMING THE PENAL TY LEVIED BY THE A.O. U/S. 271(1)(C) OF THE INCOME TAX ACT OF RS.4,67,780/-. IT IS SUBMITTED THAT ON THE FACTS AN D CIRCUMSTANCES OF THE CASE THE ASSESSEE HAS NEITHER CONCEALED THE INCOME NOR HAS SUBMITTED ANY INACCURA TE PARTICULARS OF INCOME. IN VIEW OF THIS THE PENALTY LEVIED OF RS.4,67,780/- AS CONFIRMED BY THE LD. CIT (A) BE DE LETED. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE PENALTY INSPITE OF THE FACT THAT OUT OF VARIOUS EXPENDITURE DISALLOWED BY THE ASSESSING OFFICER TO THE TUNE OF RS.7,37,20,307/-, ONLY RS.11,87,682/- HAD BEEN DISALLOWED BY THE ASSESSING OFFICER AND CONFIRMED B Y THE TRIBUNAL. THUS EFFECTIVELY ONLY ONE ITEM OUT OF VAR IOUS 12 ITEMS OF DISALLOWANCES HAD BEEN CONFIRMED BY HONBL E ITAT I.E. COMMISSION PAID TO GSA COMMERCIAL PVT. LTD. IT IS SUBMITTED THAT FULL PARTICULARS OF THE EXPENDITURE BEING COMMISSION PAID, SERVICES RENDERED AND ALLOWABILITY THEREOF WERE FURNISHED. MERELY BECAUSE THE SAME DID NOT FIN D TO THE SATISFACTION OF APPELLATE AUTHORITIES, MERELY BECAU SE THE EXPENDITURE WAS DISALLOWED, PENALTY CANNOT BE LEVIE D. IT IS SUBMITTED THAT IDENTICAL COMMISSIONS WERE PAID AND ALLOWED AND DISALLOWANCE OF EXPENDITURE ON TECHNICAL GROUND CANNOT LEAD TO THE FACT THAT THE ASSESSEE HAS FILED INACCU RATE PARTICULARS OF INCOME. IT IS SUBMITTED THAT IN VIEW OF THIS, THE PENALTY LEVIED AND CONFIRMED OF RS.4,67,780/- B E DELETED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE APPELLANT SU BMITS THAT BASED ON VARIOUS DECISIONS OF HONBLE SUPREME COURT AND OTHER HIGH COURTS, CONFIRMATION OF ADDITION CANNOT IPSO FACTO LEAD TO THE CONCLUSION THAT THE ASSESSEE HAS CONCEA LED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOM E. IN VIEW OF THIS, THE PENALTY LEVIED AND CONFIRMED OF RS.4,67,780/- BE DELETED. 4. THE ORDER PASSED BY THE LD. CIT (A) IS BAD IN LA W AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS. IT IS SUBMITTED THAT THE SAME BE HELD SO NOW. ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 4 5. BEFORE US THE LD. A.R. AT THE OUTSET SUBMITTE D THAT THOUGH THE ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE ONLY IS SUE IS WITH RESPECT TO LEVY OF PENALTY U/S. 271(1) (C) OF THE ACT. 6. BEFORE US THE LD. A.R. SUBMITTED THAT AGAINST VA RIOUS ADDITIONS MADE BY A.O., ONLY 3 ADDITIONS WERE CONFIRMED BY HO NBLE ITAT NAMELY, DISALLOWANCE U/S. 80G, DISALLOWANCE OF COMMISSION A ND DISALLOWANCE OF REGISTRATION CHARGES. WITH RESPECT TO THE DISALLOWA NCE U/S. 80G SUBMITTED THAT ASSESSEE HAD CLAIMED DEDUCTION OF RS .32,50,000/- U/S. 80G AS PER THE COMPUTATION OF INCOME WHICH COMPRISE D OF TWO ITEMS NAMELY PAYMENT OF RS.24 LAC TO CHAROTAR AROGYA MAND AL AND RS.5 LAC TO BIHAR SCHOOL OF YOGA. ASSESSING OFFICER NOTICED THA T THE PAYMENT TO CHAROTAR AROGYA MANDAL WAS QUALIFYING FOR EXPENDITU RE U/S. 35 (1)(III) AT 125% AND ON BEING POINTED OUT BY THE ASSESSING OFFICER, ASSESSEE SUBMITTED THAT THE DEDUCTION U/S.80G WAS INCORRECTL Y CLAIMED AND THAT THE EXPENDITURE BE ALLOWED U/S. 35(1)(III) OF THE A CT AND ACCORDINGLY ASSESSING OFFICER ALLOWED DEDUCTION OF RS.30LACS U/ S. 35(1)(III) OF THE ACT. WITH RESPECT TO THE DEDUCTION ON THE BALANCE A MOUNT OF RS.5 LAC, ASSESSING OFFICER WAS OF THE VIEW THAT ASSESSEE WAS ELIGIBLE TO DEDUCTION AT 50% OF THE QUALIFYING AMOUNT AND ACCOR DINGLY ALLOWED RS.2,50,000/-. THE A.O. THUS ALLOWED THE DEDUCTION OF RS.32,50,000/- BUT UNDER DIFFERENT HEAD. LD. A.R. THEREFORE, SUBMI TTED THAT THE ASSESSEES CLAIM WAS FOR RS.32,50,000/- AND HAS ALS O BEEN ALLOWED AT RS.32,50,000/- BUT UNDER DIFFERENT HEAD AND IN SUCH CIRCUMSTANCES THERE IS NO FURNISHING OF INACCURATE PARTICULARS NO R ANY CONCEALMENT OF INCOME. WITH RESPECT TO THE DISALLOWANCE OF COMMISS ION, LD. A.R., SUBMITTED THAT DURING THE COURSE OF ASSESSMENT ASSE SSEE HAS FURNISHED ALL THE REQUIRED DETAILS AND ONLY ON FAILURE OF THE ASSESSEE TO SUBMIT THE AGREEMENT ENTERED BY THE ASSESSEE WITH THE AGENT, I T CANNOT BE SAID THAT THERE HAS BEEN CONCEALMENT OF INCOME OR FURNIS HING OF INACCURATE ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 5 PARTICULARS OF INCOME, MORE SO, WHEN THE PAYMENTS H AVE BEEN MADE BY ACCOUNT PAYEE CHEQUES AND THE IDENTITY OF THE PARTI ES ARE PROVED. WITH RESPECT TO THE DISALLOWANCE OF REGISTRATION CHARGES IT WAS SUBMITTED THAT ASSESSEE CONSIDERED THE PAYMENT MADE FOR REGISTRATI ON OF VEHICLES AS A REVENUE EXPENDITURE BUT A.O. HELD IT TO BE CAPITAL EXPENDITURE AND THEREAFTER ALLOWED THE DEPRECIATION FOR THESE EXPEN SES. HE SUBMITTED THAT ASSESSEE HAD FURNISHED ALL THE REQUIRED DETAIL S CALLED FOR BY THE ASSESSING OFFICER AND THERE WAS NO FURNISHING OF IN ACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. HE FURTHER SUBM ITTED THAT MERELY BECAUSE ASSESSEE HAS CLAIMED EXPENDITURE AND THE CL AIM HAS NOT BEEN ACCEPTED WOULD NOT LEAD TO LEVY OF PENALTY U/S. 271 (1) (C) OF THE ACT. HE PLACED RELIANCE ON THE DECISION OF CIT V/S. RELIANC E PETROPRODUCTS P. LTD., (2010) 322 ITR 158 (SC) AND OTHER DECISIONS N AMELY DCIT V/S. GUJARAT INSECTICIDES LTD. ITA.NO.1006/AHD/2010 ITAT AHD.); SHRI SAURABH BANSAL VS. ITO ITA NO.351/AHD/2008 (ITAT AH D.); & DCIT V/S. M/S. TRANSPORT CORPORATION ITA NO.152/HYD/2014 (ITA T HYD.). HE THEREFORE SUBMITTED THAT PENALTY BE DELETED. THE LD . D.R. ON THE OTHER HAND, SUPPORTED THE ORDER OF A.O. AND LD. CIT (A). 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESP ECT TO LEVY OF PENALTY U/S. 271(1)(C) ON THREE ADDITIONS/DISALLOWANCES MAD E. AS FAR AS DISALLOWANCE WIT RESPECT TO THE PAYMENT OF DONATION IS CONCERNED, WE FIND THAT ASSESSEE HAD CLAIMED DEDUCTION U/S.80G BU T A.O. ALLOWED THE CLAIM U/S. 35(1)(III) AND THE QUANTUM OF THE EXPEND ITURE ALLOWED REMAINED SAME BUT UNDER A DIFFERENT HEAD. IN SUCH A SITUATION, WE ARE OF THE VIEW THAT THERE COULD BE NO INTENTION OF THE ASSESSEE TO EVADE THE TAX. WITH RESPECT TO THE OTHER EXPENSES THAT WE RE DISALLOWED, WE FIND THAT ASSESSEE HAS FURNISHED THE REQUIRED PARTI CULARS AND DETAILS BEFORE THE A.O. IT IS ALSO NOT A CASE WHERE ASSESSE E HAS FURNISHED ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 6 ACCURATE PARTICULARS OF INCOME OR CONCEALED THE PAR TICULARS OF INCOME. FURTHER, FOR LEVY OF PENALTY THERE HAS TO BE EVIDEN CE OR MATERIAL TO SHOW THAT THE ASSESSEE HAS DELIBERATELY FURNISHED INACCU RATE PARTICULARS OF INCOME. IT ALSO A SETTLED LAW THAT PENALTY PROCEEDI NGS ARE ENTIRELY DISTINCT FROM ASSESSMENT PROCEEDINGS AND HOWSOEVER RELEVANT AND GOOD THE FINDINGS IN ASSESSMENT PROCEEDINGS MAY BE, THEY ARE NOT CONCLUSIVE AS FAR AS PENALTY PROCEEDINGS ARE CONSIDERED. IT IS ALSO WELL SETTLED THAT THE PARAMETERS OF JUDGING THE JUSTIFICATION FOR ADD ITION MADE IN ASSESSMENT CASE OF AN ASSESSEE IS DIFFERENT FROM TH E PENALTY IMPOSED ON ACCOUNT OF CONCEALMENT OF INCOME OR FILING INACC URATE PARTICULARS OF INCOME AND THAT CERTAIN DISALLOWANCES/ADDITIONS COU LD LEGALLY BE MADE IN ASSESSMENT PROCEEDINGS ON THE PREPONDERANCE OF P ROBABILITIES BUT NO PENALTY COULD BE IMPOSED U/S. 271 (1)(C) OF THE ACT ON THE PREPONDERANCE OF PROBABILITIES AND THE REVENUE HAS TO PROVE THAT THE CLAIM MADE BY THE ASSESSEE WAS NOT GENUINE. CONSIDE RING THE TOTALITY OF FACTS, WE ARE OF THE VIEW THAT THE PRESENT CASE IS NOT A FIT CASE FOR LEVY OF PENALTY AND WE THEREFORE DIRECT ITS DELETION. TH US THE GROUND OF ASSESSEE IS ALLOWED. 8. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWED. NOW WE TAKE UP ITA NO.3101/AHD/2011 A.Y.2008-09. 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSE SSING OFFICER NOTICED THAT ASSESSEE HAS MADE PAYMENTS TO EXPRESS TRANSPORT PVT. LTD., OF RS.16,40,926/- AND RS.93,133/- TO FLYJAC L OGISTIC PVT. LTD., AND WHILE MAKING AFORESAID PAYMENTS, NO TDS U/S. 194C W AS DEDUCTED BY THE ASSESSEE. IT WAS ASSESSEES SUBMISSION THAT THE AFORESAID PAYMENTS WERE TOWARDS REIMBURSEMENT EXPENSES AND THEREFORE A SSESSEE WAS NOT LIABLE TO DEDUCT TDS. THE SUBMISSION OF THE ASSESSE E WAS NOT FOUND ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 7 ACCEPTABLE TO THE ASSESSING OFFICER AS HE WAS OF TH E VIEW THAT THE PAYMENTS MADE FOR CLEARING AND FORWARDING CHARGES E VEN IF IT IS ON ACCOUNT OF REIMBURSEMENT WOULD BE SUBJECT TO THE TD S AND FOR WHICH A.O. RELIED ON BOARDS CIRCULAR NO.715 DATED 8-8-19 95 AND ACCORDINGLY DISALLOWED THE AGGREGATE PAYMENT OF RS.17,08,059/- U/S. 40(A)(IA) OF THE ACT. AGGRIEVED BY THE ORDER OF ASSESSING OFFICE R, ASSESSEE CARRIED THE MATTER BEFORE THE CIT (A), WHO UPHELD THE ORDER OF ASSESSING OFFICER BY HOLDING AS UNDER:- 6.3. AT THIS PLACE IT MAY BE MENTIONED THAT THE LD . CIT (A)IV, BARODA I.E. MY PREDECESSOR HAS DECIDED SIMILAR ISSU E (I.E. DISALLOWANCE OF PAYMENTS U/S. 40(A)(IA) AS MADE O C USTOM CLEARING AND FORWARDING AGENT) IN THE CASE OF APPEL LANT ITSELF FOR A.Y. 2007-08 IN FAVOUR OF DEPARTMENT,. WHILE DECIDI NG THE ISSUE, THE LD. CIT (A) HAS HELD SECTION194C AND 194J REFER TO ANY SUM PAID AND THEREFORE TAX AT SOURCE UNDER THESE SECTIO NS IS TO BE DEDUCTED FROM THE SUM PAID AND REIMBURSEMENT CANNOT BE SEPARATED OUT OF BILL AMOUNT FOR THE PURPOSE OF DED UCTION OF TAX AT SOURCE. BUT AT THIS PLACE I DO NOT FULLY AGREE WITH THE DECISION/OBSERVATION OF MY LD. PREDECESSOR. IN MY O PINION IF ANY PAYMENTS ARE MADE BY THE APPELLANT TOWARDS CUSTOM D UTY OR ANY OTHER GOVERNMENT DUES THROUGH CUSTOM CLEARING AND F ORWARDING AGENT FOR CLEARING THE IMPORTED GOODS ETC., THEN IT IS NOT REQUIRED TO DEDUCT THE TAX AT SOURCE ON SUCH PAYMENTS AS NO ELEMENT OF INCOME IS EMBEDDED IN REIMBURSEMENT OF SUCH EXPENSE S. IN THIS REGARD THE HONBLE DELHI ITAT IN APPEAL NO.1208/200 9 IN THE CASE OF ACIT VS. GRAND PRIX FAB P. LTD. HAS CLEARLY HELD THAT APPELLANT IS NOT OBLIGED TO DEDUCT TAX AT SOURCE FROM THE PAY MENTS MADE BY IT TO THE CLEARING AGENT TOWARDS CUSTOMS DUTY AND O THER EXPENSES PAID BY THEM LATER WHILE CLEARING THE IMPORTED OR E XPORTED GOODS ON BEHALF OF THE APPELLANT AS NO ELEMENT OF INCOME IS EMBEDDED IN REIMBURSEMENT OF EXPENSES AND THEREFORE IMPUGNED PAYMENTS COULD NOT BE DISALLOWED U/S. 40(A)(IA). IN VIEW OF THIS JUDGMENT OF HONBLE DELHI HIGH COURT, THE APPELLANT IS NOT REQU IRED TO MAKE TDS ON REIMBURSEMENTS OF PAYMENTS WHICH HAVE BEEN M ADE ON ACCOUNT OF CUSTOM DUTY. WITH REGARD TO OTHER PAYMEN T INCLUDING SHIPPING LINE BILLS WHICH ARE NOT IN THE NATURE OF ANY CUSTOM DUTY ETC., MADE TO CUSTOM DEPARTMENT, THE TAX IS REQUIRE D TO BE MADE ON THE SAME. IN VIEW OF THESE FACTS, THE A.O. IS DI RECTED TO EXCLUDE THE PAYMENTS WHICH ARE MADE TO CUSTOM DEPAR TMENT ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 8 THROUGH CLEARING AND FORWARDING AGENTS ON ACCOUNT O F DUTY ETC., FROM THE TOTAL PAYMENTS OF RS.17,08,059/- AS DISALL OWED U/S. 40(A)(IA) AND THE BALANCE PAYMENTS AS DISALLOWED UN DER THIS SECTION IS CONFIRMED. 10. AGGRIEVED BY THE ORDER OF LD. CIT (A), ASSESSEE IS NOW IN APPEAL BEFORE US. 11. BEFORE US THE LD. A.R. REITERATED THE SUBMISSIO NS MADE BEFORE THE A.O. AND THE LD.CIT (A) AND FURTHER SUBMITTED THAT ON IDENTICAL FACTS IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2007-08 THE TRIBUNAL VIDE ORDER DATED 21-9-2012 HAD SET ASIDE THE ISSUE TO TH E FILE OF ASSESSING OFFICER. HE PLACED ON RECORD THE COPY OF THE AFORES AID ORDER OF TRIBUNAL. HE THEREFORE, SUBMITTED THAT SINCE THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF EARLIER YEARS , THE ISSUE MAY BE REMITTED BACK TO THE FILE OF THE A.O. IN THE ALTER NATE HE SUBMITTED THAT THE ADDITION MADE BY A.O. BE DELETED. THE LD. D.R. ON THE OTHER HAND, SUPPORTED THE ORDER OF A.O. AND THE LD. CIT (A). 12. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPE CT TO THE DEDUCTION OF TDS ON THE AMOUNT WHICH ARE CLAIMED TO BE IN THE NA TURE OF THE REIMBURSEMENT OF EXPENDITURE. BEFORE US IT IS ASSES SEES SUBMISSION THAT THE EXPENDITURE IS REIMBURSEMENT OF EXPENDITUR E MADE TO CLEARING AND FORWARDING AGENTS, BUT WE FIND THAT THERE IS NO FINDING OF A.O. OR THE LD. CIT (A) ON THE SAME. BEFORE US LD. A.R. HAS ALSO SUBMITTED THAT THE FACTS OF THE CASE ARE IDENTICAL TO THAT OF ASSE SSMENT YEAR 2007-08 AND THE AFORESAID SUBMISSION HAS NOT BEEN DISPUTED BY LD. D.R. WE FIND THAT THE CO-ORDINATE BENCH OF ITAT WHILE DECIDING T HE APPEAL OF ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 9 ASSESSEE, IN ITA NO.931/AHD/2010 DATED 21-09-2012 F OR A.Y. 2007-08 OBSERVED AS UNDER:- 6.4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PE RUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW AND THE DECISION CITED BY THE LD. A.R. IN THE CASE OF OM SATYA EXIM PVT. LTD. (SUPRA), IT WAS HEL D BY THE TRIBUNAL THAT IF BILLS FOR REIMBURSEMENT OF EXPENDI TURE HAVE BEEN RAISED BY THE COMMISSION AGENT SEPARATELY, TDS WAS NOT REQUIRED TO BE DEDUCTED FOR REIMBURSEMENT AND AS A CONSEQUEN CE, SECTION 40(A)(IA) IS NOT APPLICABLE WITH REGARD TO SUCH REI MBURSEMENT. IN THE PRESENT CASE, SUCH DETAILS, ARE NOT AVAILABLE B EFORE US AS TO WHETHER THE AMOUNT OF REIMBURSEMENT IS EXACT AMOUNT OF EXPENDITURE INCURRED BY THE C&F AGENT AND WHETHER S EPARATE BILLS WERE RAISED BY THE C & F AGENTS IN RESPECT OF REIMB URSEMENT OF EXPENDITURE AND IN RESPECT OF SERVICE CHARGES PAYAB LE TO THEM. WE THEREFORE, FEEL THAT IN THE INTEREST OF JUSTICE, THIS MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. WE ORDER ACCORDINGLY. THE ASSESSEE SHALL BRING ON RECO RD THE RELEVANT BILLS RAISED BY EACH C & F AGENT AND IT HAS TO BE S HOWN THAT EXACT AMOUNT OF EXPENDITURE INCURRED BY EACH AGENT WAS RE IMBURSED BY THE ASSESSEE AND BILLS WERE SEPARATELY RAISED BY TH E C & F AGENT FOR THE REIMBURSEMENT OF EACH EXPENDITURE AND FOR S ERVICE CHARGES PAYABLE TO THEM AND IF THE ASSESSEE IS ABLE TO ESTABLISH THESE TWO INGREDIENTS THEN SECTION 40(A)(IA) IS NOT APPLICABLE IN RESPECT OF REIMBURSEMENT OF EXPENDITURE AND THE A.O . SHALL DECIDE THIS ISSUE AFRESH AND PASS NECESSARY ORDER A S PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 13. IN VIEW OF THE FACT THAT THE ISSUE IN THE YEAR IS IDENTICAL TO THAT OF A.Y. 2007-08 WE ARE OF THE VIEW THAT THE MATTER BE REMITTED TO THE FILE OF A.O. AS DONE IN A.Y. 2007-08. WE THEREFORE WITH SIMILAR DIRECTIONS AS GIVEN BY THE COORDINATE BENCH WHILE DECIDING THE AP PEAL FOR A.Y.2007- 08, SET ASIDE THE MATTER TO THE FILE OF A.O. TO DEC IDE THE ISSUE AFRESH ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN ACCO RDANCE WITH LAW. NEEDLESS TO STATE THAT A.O. SHALL GIVE ADEQUATE OPP ORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE DETAILS ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 10 CALLED FOR BY THE ASSESSING OFFICER. IN THE RESULT THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 15. THUS THE APPEAL IN ITA NO.3252/AHD/2011 FOR A.Y . 2002-03 IS ALLOWED AND IN ITA NO.3101/AHD/2011 FOR A.Y.2008-09 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON FRIDAY,THE 14 TH AUGUST,2015 AT AHMEDABAD. SD/- SD/- (S.S. GODARA) (ANIL CH ATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. DATED 14/08 /2015 PATKI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! () / THE CIT(A), AHMEDABAD 5. $%& '', , )*++ / DR, ITAT, AHMEDABAD 6. &,- . / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD ITA NO. 3101/ AHD/2011 ASSESSMENT YEAR 2008-09 ITA NO. 3252/AHD/2011 ASSESSMENT YEAR 2002-03 EIMCO ELECON(INDIA) LD. 11 1. DATE OF DICTATION- 31-7-2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER :4-8-2015 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P .S./P.S. - 6-8-2015/10-8- 2015/11-8-2015./12-8-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 14-8-2015 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14- 8-2015 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER