Shri Pannalal Hiralal Bachkaniwala, Surat V. The Dy.CIT.,Circle-1, Surat

ITA 327/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60564 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 03-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 02-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: R N VEPARI
• Section: 194C

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , ! '#, $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.327/AHD/2010 ( ! ) ! ) ! ) ! ) / / / / ASSESSMENT YEAR : 2004-05) SHRI PANNALAL HIRALAL BACHKANIWALA HIRALAL COLONY A.K.ROAD SURAT ! ! ! ! / VS. DCIT CIRCLE-1 SURAT * $% ./+, ./ PAN/GIR NO. : ABAPB 3350 R ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 $ / APPELLANT BY : SHRI R.N.VEPARI, A.R. ./*- 1 0 $ / RESPONDENT BY : SHRI B.L.YADAV, SR.D.R. !2 1 % / / / / DATE OF HEARING : 03/07/2012 34) 1 % / DATE OF PRONOUNCEMENT : 6/7/12 $5 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FR OM THE ORDER OF LEARNED CIT(APPEALS)-I, SURAT DATED 12/01/2010 AND THE GROUNDS RAISED ARE AS FOLLOWS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN CON FIRMING THE ORDER OF LOWER AUTHORITY FOR RE-OPENING THE ASSESSM ENT AND PASSING A TIME BARRED ORDER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LERNED COMMISSIONER OF INCOME TAX APPEALS AHS ERRED IN TRE ATING RS.206000/- AS INCOME ESCAPED FROM ASSESSMENT WHEN ADVANCE ITA NO.327/AHD/ 2010 PANNALAL HIRALAL BACHKANWALA VS. DCIT ASST.YEAR - 2004-05 - 2 - MONEY WAS RECEIVED FROM THE PRINCIPAL AND WAS ADJUS TED IN THE SUBSEQUENT YEAR AGAINST LABOUR BILLS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS ERRED IN NOT APPRECIATING THE PROVISIONS OF SEC 194C AS TDS HAS TO BE DEDUCTE D ON PAYMENT MADE OR CREDITED WHICHEVER IS EARLIER BY THE DEDUCT OR. 2. AT THE OUTSET, LD.AR MR.R.N.VEPARI HAS EXPRESSED NOT TO PRESS GROUND NO.1, HENCE DISMISSED BEING NOT PRESSED. 3. APROPOS TO GROUND NOS.2 & 3, FACTS IN BRIEF AS E MERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) R. W.S. 147 OF THE I.T. ACT, 1961 DATED 29/10/2009 WERE THAT THE ASSESSEE IS A PROPRIETOR OF JAY LAXMI ENGINEERS. IT WAS NOTED BY THE ASSESSING OFF ICER THAT ON AN AMOUNT OF RS.2,06,000/- TDS WAS DEDUCTED BY M/S.BOR SARA MACHINES UNIT OF HIMSON TEXTILE ENGG. STATED TO BE AN ADVANC E PAYMENT MADE IN THE MONTH OF MARCH. THE ASSESSEE HAS EXPLAINED THA T ALTHOUGH THE ADVANCE PAYMENT OF RS.2,06,000/- WAS MADE BY THE SA ID CONCERN, BUT IT WAS SHOWN ITS LIABILITY IN THE BALANCE-SHEET FOR TH E YEAR UNDER CONSIDERATION AND IN THE SUBSEQUENT YEAR THE SAME W AS SHOWN AS INCOME. HOWEVER, THE ASSESSING OFFICER HAS OPINED THAT THE ASSESSEE HAS CLAIMED TDS ON THE SAID AMOUNT DURING THE YEAR UNDER CONSID ERATION, THEREFORE, THE SAID INCOME PERTAINED TO THAT VERY ASSESSMENT Y EAR. ACCORDINGLY, THE IMPUGNED AMOUNT OF RS.2,06,000/- WAS ADDED IN THE T OTAL INCOME OF THE ASSESSEE. 4. WHEN THE ASSESSEE HAD GONE IN APPEAL, LEARNED CI T(APPEALS) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. ITA NO.327/AHD/ 2010 PANNALAL HIRALAL BACHKANWALA VS. DCIT ASST.YEAR - 2004-05 - 3 - 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT THE AUTHORITIES HAVE NOT CORRECTLY APPRECIATED THE PROVISIONS AND IN THIS REGARD WE HEREBY REFER RULE 37BA(3) OF IT RULE S. ALMOST ON IDENTICAL FACTS, THE TRIBUNAL HAS TAKEN A VIEW VIDE ORDER DATED 22/06/2012 (ITAT A BENCH AHMEDABAD IN ITA NO.753/AHD/2010, A .Y. 2007-08) IN THE CASE OF SATISHCHANDRA S.SRIVASTAV VS. ITO, W HEREIN VIDE PARAGRAPH NO.3, TRIBUNAL HAS HELD AS UNDER:- 3. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES SINCE IT WAS AN ADMITTED POSITION THAT THE IMPUGNED AMOUNT WAS T AXED ON THE BASIS OF THE TDS CERTIFICATE BASED UPON THE CORROBO RATIVE CERTIFICATE ISSUED FORM GSPC LTD. RELEVANT FOR THE YEAR UNDER CONSIDERATION, THEREFORE, THERE WAS NO LEGAL BASIS TO DISCLOSE THE IMPUGNED AMOUNT OF RS.1,49,064/- ON CASH BASIS IN A .Y. 2008-09. WE THEREFORE HOLD THAT THE ASSESSING OFFICER HAS RI GHTLY TAXED THIS AMOUNT IN THE ASSESSMENT YEAR UNDER CONSIDERATION, I.E. 2007-08. HOWEVER, IN THE LIGHT OF THE RULE 37BA(3) OF INCOM E TAX RULES, 1962 THE ASSESSEE IS ENTITLED FOR THE TAX BENEFIT FOR THE YEAR UNDER CONSIDERATION; REPRODUCED BELOW:- CREDIT FOR TAX DEDUCTED AT SOURCE FOR THE PURPOSES OF SECTION 199. 37BA (1).. (2).. (3) (I) CREDIT FOR TAX DEDUCTED AT SOURCE AND PA ID TO THE CENTRAL GOVERNMENT, SHALL BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH SUCH INCOME IS ASSESSABLE . (II) WHERE TAX HAS BEEN DEDUCTED AT SOURCE AND PAI D TO THE CENTRAL GOVERNMENT AND THE INCOME IS ASSESSABLE OVER A NUMBER OF YEARS, CREDIT FOR TAX DEDUCTED AT SOURCE SHALL BE ALLOWED ACROSS THOSE YEARS IN THE SAME PROPORTION IN WHICH THE INCOME IS ASSESSABLE TO TAX. AS WELL, SAME INCOME CANNOT BE TAXED TWICE IN TWO A SSESSMENT YEARS. WE THEREFORE DIRECT THE ASSESSING OFFICER T O EXAMINE THIS ASPECT IN THE LIGHT OF THE RETURN FILED FOR A.Y. 20 08-09, WHEREIN TAX ITA NO.327/AHD/ 2010 PANNALAL HIRALAL BACHKANWALA VS. DCIT ASST.YEAR - 2004-05 - 4 - WAS CLAIMED TO HAVE BEEN PAID ON THE SAID INCOME AN D THERE UPON GRANT DUE CREDIT FOR THE YEAR UNDER CONSIDERATION A S PER LAW. WITH THESE DIRECTIONS THIS GROUND IS HEREBY DISMISSED. 5.1. FURTHER, A DECISION OF RESPECTED THIRD MEMBER IN THE CASE OF SMT.VARSHA G.SALUNKE VS. DY.CIT (ITAT MUMBAI BENCH F THIRD MEMBER) REPORTED AT [2006] 98 ITD 147 (MUM.) (TM) O RDER DATED 27/09/2005 HAS ALSO BEEN CITED BEFORE US, WHEREIN I T WAS HELD THAT THE CREDIT OF THE TDS IS TO BE GIVEN IN THE RELEVANT AS SESSMENT YEAR IN WHICH INCOME HAS BEEN SHOWN BY THE ASSESSEE. RESPECTFULL Y FOLLOWING THESE DECISIONS, WE HEREBY DIRECT THAT SINCE THE ASSESSEE HAS SHOWN THE INCOME IN THE NEXT ASSESSMENT YEAR, I.E. A.Y. 2005-06, THE REFORE, THERE IS NO OCCASION TO ASSESS THE SAME INCOME FOR THE YEAR UND ER CONSIDERATION, I.E. 2004-05 AND WE FURTHER DIRECT THAT THE CORRESPONDIN G TDS CREDIT SHOULD ALSO BE GIVEN IN THE ASSESSMENT YEAR 2005-06. GROU ND NOS.2 & 3 ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. SD/- SD/- ( ! '# ) ( ) $% ( ANIL CHATURVEDI ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 6/ 7 /2012 6..!, .!../ T.C. NAIR, SR. PS ITA NO.327/AHD/ 2010 PANNALAL HIRALAL BACHKANWALA VS. DCIT ASST.YEAR - 2004-05 - 5 - $5 1 .7 8$7) $5 1 .7 8$7) $5 1 .7 8$7) $5 1 .7 8$7)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-I, SURAT 5. 7<= .! , , / DR, ITAT, AHMEDABAD 6. = >2 / GUARD FILE. $5! $5! $5! $5! / BY ORDER, /7 . //TRUE COPY// ? ?? ?/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION 3.7.12 (DICTATION-PAD PAGES 5 A TTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 5.7.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S6.7.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6.7.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER