Sahyog Roadway, Surat V. The ACIT, Circle -6, Surat

ITA 3328/AHD/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2092 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 02-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P RASTOGI
• Keywords: Condonation of delay
• Section: 54; 154; 143(3); 40(a)(ia)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.3328/AHD/2015/SRT / ASSESSMENT YEAR: 2005-06 SAHYOG ROADWAYS, PLOT NO.H/12, H.V. NO.19, JAYBHARAT TRANSPORT NAGAR, ANJANA, BHATHENA, SURAT- 394 210. [PAN: AAKFS 0609R] VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE-6, SURAT. ( / APPELLANT) ( !' /RESPONDENT) / ASSESSEE BY : SHRI HIREN VEPARI, C.A /REVENUE BY : SHRI R.P. RASTOGI, SR. D.R /DATE OF HEARING : 19-04-2018 /DATE OF PRONOUNCEMENT : 25-04-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-4, SURAT (CIT (A) FOR SHORT) DATED 01.10.2015 FOR THE ASSESSMENT YEAR (A.Y) 2005-06 PA SSED UNDER SECTION 143(3) R/W S. 254 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: (I) CONDONATION OF DELAY: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS P ER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE CONDONED THE DELAY IN FILING THE APPEAL. 2 ITA NO.3328/AHD/2015/SRT (A.Y: 2005-06) SHRI SAHYOG ROADWAYS (II) DISALLOWANCE U/S. 40(A)(IA): (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN NOT DELETING A SUM OF RS.15,98,646 PAID TO SAHYOG TRANS PORT CO. WITHOUT DEDUCTION OF TAX PARTICULARLY WHEN SAHYOG TRANSPORT CO. HAS ALREADY PAID TAX THEREON. (2) THE APPELLANT SUBMITS THAT ON THE BASIS OF THE AMENDMENT MADE BY THE FINANCE ACT IN INSERTING SECOND PROVISO TO SUB-SECTION (IA) IN SECTION 40 AS ALSO BY INSERTING PROVISO TO SUB-SECTION (I) TO SECTION 201, NO DISALLOWANCE U/S.40(A)(IA) SHOULD H AVE BEEN MADE. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES ON THE ISSUE OF DENIAL OF CONDONATION OF DELAY BY LD. CIT(A) AND CAREFULLY PE RUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE FIRST APPELL ATE AUTHORITY DENIED CONDONATION OF 11 MOTHS DELAY IN FILING APPEAL BEFO RE HIM BY HOLDING THAT IN THE CIRCUMSTANCES OF NEGLIGENCE OF PARTY CANNOT BE ACCEPTED AS SUFFICIENT CAUSE FOR CONDONATION OF DELAY AND HE DISMISSED APP EAL OF THE ASSESSEE IN LIMINE . THE LD. AR SUBMITTED THAT THE ITAT ORDER DATED 3 1.08.2012 DELETED THE ADDITION OF RS. 28,84,856/- AND BALANCE ADDITIO N OF RS. 21,52,696/- WAS SET ASIDE TO THE FILE OF THE A.O TO DECIDE THE ISSU E OF PAYMENT TO THE OTHER TRUCK OPERATORS IN THE LIGHT OF JUDGMENT OF ITAT, V ISAKHAPATNAM IN THE CASE OF MARILYN SHIPPING & TRANSPORT REPORTED AT 146 TTJ 1 (ITAT, VIZAG). THE LD. AR FURTHER SUBMITTED THAT DURING REASSESSMENT P ROCEEDINGS, THE AO AGAIN DISALLOWED THE ENTIRE AMOUNT OF RS. 50,37,670 /- U/S. 40(A)(IA) OF THE ACT BY ORDER DATED 23.12.2013 BY APPLYING RATIO OF THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF SIKANDAR KHAN TANVAR 357 ITR 312 (GUJ) . SUBSEQUENTLY, THE AO VIDE ORDER DATED 21.02.2014 U/ S. 154 OF THE ACT THE AO RESTRICTED THE DISALLOWANCE TO RS. 21,52,696/- A ND THE LD. CIT(A) VIDE 3 ITA NO.3328/AHD/2015/SRT (A.Y: 2005-06) SHRI SAHYOG ROADWAYS ORDER DATED 28.11.2014 AGAINST SAID ORDER U/S. 154 OF THE ACT DID NOT ENTERTAIN BALANCE OF RS. 28,84,856/-. THE LD. AR F URTHER SUBMITTED THAT THE LD. CIT(A) DID NOT CONDONE DELAY IN FILING APPEAL D ESPITE THERE WAS A BONAFIDE AND SUFFICIENT REASON FOR CONDONING THE DELAY. TH E LD. AR PLACING RELIANCE ON THE RATIO OF THE DECISION OF HON'BLE AL LAHABAD HIGH COURT IN THE CASE OF SUBHASH MALIK REPORTED AT 187 TAXMANN 88 (ALL) SUBMITTED THAT WHEN ON THE ADVICE OF COUNSEL AN APPLICATION U/S. 1 54 OF THE ACT FOR RECTIFICATION IS FILED AND SAME WAS DISMISSED AND T HE LD. CIT(A) ALSO DISMISSED APPEAL AGAINST THE ORDER U/S. 154 OF THE ACT THEN, DELAY IN FILING APPEAL AGAINST THE ORIGINAL ASSESSMENT ORDER MAY BE CONDONED AND THE LD. CIT(A) SHOULD HEAR THE APPEAL. 4. IN THE PRESENT CASE, DURING SECOND ROUND OF PROC EEDINGS THE AO MADE ADDITION OF ENTIRE AMOUNT AND SUBSEQUENTLY BY WAY OF RECERTIFICATION U/S. 154 OF THE ACT HE DELETED THE AMOUNT OF ADDITI ON WHICH WAS DELETED BY THE TRIBUNAL AND UPHELD THE SAME AMOUNT WHICH WAS R ESTORED HIS FILE BY THE TRIBUNAL. ON ADVICE OF COUNSEL, THE ASSESSEE INSTE AD OF PREFERRING ANY APPEAL AGAINST THE ORIGINAL ASSESSMENT ORDER DATE 2 3.11.2013 FILED APPEAL AGAINST THE 154 ORDER DATED 21.02.2014 WHICH WAS DI SMISSED ON 28.11.2014 BY THE LD. CIT(A) AND THEREAFTER, THE AS SESSEE WAS IN A COMPELLING SITUATION TO FILE APPEAL AGAINST THE ORI GINAL ASSESSMENT ORDER DATED 23.12.2013 WHICH WAS FILED BY DELAY OF 11 MON THS DUE TO TIME SPEND IN THE APPEAL AGAINST 154 ORDER. THE TIME CONSUMED IN THE WRONG APPEAL PROCEEDINGS WAS THE CAUSE OF DELAY IN FILING APPEAL BEFORE LD. CIT(A) AND IN 4 ITA NO.3328/AHD/2015/SRT (A.Y: 2005-06) SHRI SAHYOG ROADWAYS THIS SITUATION, THE LD. CIT(A) OUGHT TO HAVE CONDON E THE DELAY AND DECIDE THE APPEAL ON MERITS BUT HE DISMISS THE APPEAL IN LIMINE DENYING CONDONATION OF DELAY. 5. IN THE BACKDROP OF ABOVE FACTS AND CIRCUMSTANCES , WE ARE OF THE CONSIDERED VIEW THAT IN DELAY IN FILLING APPEAL BEF ORE LD. CIT(A) OF 11 MONTHS DESERVE TO BE CONDONED AND WE DIRECT THE FIRST APPE LLATE AUTHORITY TO CONDONE THE DELAY AND TO ADJUDICATE THE APPEAL ON M ERITS. ACCORDINGLY GROUND NO.1 OF ASSESSEE IS ALLOWED. 6. SINCE, BY THE EARLIER PART OF THIS ORDER WE HAVE HELD THAT DELAY IN FILING APPEAL BEFORE LD. CIT(A) DESERVES TO BE CONDONED AN D WE HAVE DIRECTED THE LD. CIT(A) ACCORDINGLY TO ADJUDICATE THE APPEAL ON MERITS. THEREFORE, WE ARE NOT ADJUDICATING OTHER GROUNDS OF APPEAL ON MERITS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 5 TH APRIL, 2018. / SURAT ; DATED : 25 TH APRIL, 2018 EDN ! $ / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. # ( ) / THE CIT (A) - 4, SURAT; 4. PRL. CIT-2, SURAT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // ) / ASSISTANT REGISTRAR , / ITAT, SURAT SD/ - SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER