The DCIT,(OSD), Circle-9, Ahmedabad V. M/s. V.K. Patel & Co., Ahmedabad

ITA 330/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0691 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 04-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMIT KUMAR
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER THE DCIT(OSD) CIRCLE-9, AHMEDABAD (APPELLANT) VS M/S V.K. PATEL & CO., AHMEDABAD PAN NO. ABAFS6354G (RESPONDENT) REVENUE BY: SRI SUMIT KUMAR, D.R. ASSESSEE BY: SRI HARDIK VORA, A.R. DATE OF HEARING : 04-04-2013 DATE OF PRONOUNCEMENT : 19-04-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XV, AHMEDABAD DATED 29-11-2012. ITA NO. 330/AHD/2013 ASSESSMENT YEAR:-2008-2009 I.T.A NO.330/AHD/2013 A.Y. 2008-09 PAGE NO DCIT VS. M/S. V.K. PATEL & CO. 2 2. IN THIS APPEAL TWO EFFECTIVE GROUNDS TAKEN BY TH E REVENUE READ AS UNDER:- 1) THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN DELETING THE ADDITION OF RS. 29,84,586/- MADE ON ACCOUNT OF CESSATION OF LIABILITY U/S 41(1) OF THE ACT. 2). THE LD. COMMISSIONER OF INCOME-TAX (A)-XV, AHME DABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 33,866/- MADE ON ACCOUNT OF LATE PAYMENT OF PROVIDENT FUND AND EM PLOYEES CONTRIBUTION TO PROVIDENT FUND. 3. GROUND NO. 1 RELATES TO ADDITION OF RS. 29,84,58 6/- MADE BY A.O. ON ACCOUNT OF CESSATION OF LIABILITY U/S 41(1) OF THE ACT. AT THE TIME OF HEARING LEARNED COUNSEL OF THE ASSESSEE AT THE OUTSET SUBMI TTED THAT THIS ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON THE PRESUMPTI ON THAT THERE IS CESSATION OF TAX LIABILITY MERELY BECAUSE THIS AMOUNT WAS OUT STANDING FOR SOME TIME. IT WAS FURTHER STATED THAT THE ASSESSEE COULD NOT M AKE PAYMENT TO VARIOUS PARTIES IN TIME BECAUSE OF THE FINANCIAL DIFFICULTI ES. ON SIMILAR FACTS HONBLE ITAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 DELETED THE ADDITION MADE BY ASSESSING OFFICER AND SUSTAINED BY LD. CIT(A). THEREFORE, THIS YEAR ALSO THE ORDER PASSED BY LD. CIT(A) DELET ING THESE ADDITIONS MAY KINDLY BE UPHELD. LD. D.R. DID NOT SERIOUSLY OBJEC T TO THIS SUBMISSION MADE ON BEHALF OF THE ASSESSEE. I.T.A NO.330/AHD/2013 A.Y. 2008-09 PAGE NO DCIT VS. M/S. V.K. PATEL & CO. 3 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT ON IDENTICAL FACT HONBLE ITAT VIDE ITS ORDER DATED 16 TH SEP, 2001 IN ITA NO. 3106/AHD/2010 A.Y. 2007-08 IN ASSESSEES OWN CASE D ELETED THE ADDITION MADE U/S 41(1) OF THE ACT BY A.O. AND SUSTAINED BY LD. CIT(A) FOLLOWING THE DECISION OF ITAT IN THE CASE OF G.K. PATEL & C O. AND IN THE CASE OF M/S SUPRIYA TEXTILE INDUSTRIES VS. ITO, ITA NO. 3228/AH D/2001. RESPECTFULLY FOLLOWING THE SAME THE ORDER PASSED BY LD. CIT(A) D ELETING THE ADDITION MADE BY THE A.O. U/S 41(1) OF THE ACT IS HEREBY UPH ELD. THIS GROUND OF THE REVENUE IS DISMISSED. 5. SECOND GROUND RELATES TO ADDITION OF RS. 33,866/ - ON LATE PAYMENT OF PROVIDENT FUND. THE A.O. HAS NOT DISCUSSED THE SPE CIFIC DATE ON WHICH PAYMENT OF PROVIDENT FUND WAS MADE BY THE ASSESSEE BUT HAD ADDED THIS AMOUNT WITH THE REMARK THAT ON BEING SHOW CAUSED AS SESSEE AGREED TO THIS ADDITION. IN APPEAL BEFORE LD. CIT(A) THIS FINDING OF THE A.O. WAS CONTESTED AND ON THE BASIS OF DETAILS OF PAYMENT OF PROVIDENT FUND IT WAS PRAYED THAT SINCE PAYMENT WAS MADE EITHER IN GRACE PERIOD OR MI NOR DELAY OF SIX DAYS BUT IN ALL THESE CASES BEFORE FILING OF INCOME, NO ADDITION U/S 43B OF THE ACT WAS CALLED FOR. LD. CIT(A) ACCEPTED THIS CONTENTIO N OF THE ASSESSEE IN VIEW OF THE HONBLE SUPREME COURT DECISION IN THE CASE O F CIT VS. ALOM EXTRUSION LTD. (SUPRA) AND DELHI HIGH COURT DECISI ON IN THE CASE OF CIT(A) VS. AIML LTD (SUPRA) AND DELETED THE ADDITION MADE BY THE A.O. U/S 43B. WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) AND THE SAME IS HEREBY UPHELD. THIS GROUND OF THE REVENUE IS ALSO DISMISS ED. I.T.A NO.330/AHD/2013 A.Y. 2008-09 PAGE NO DCIT VS. M/S. V.K. PATEL & CO. 4 6. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K.TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 19/04/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. ! , ' , #$ / DR, ITAT, AHMEDABAD 6. %& '( / GUARD FILE. BY ORDER/ , ) / # * ' , #$