Shri Rajendra V.Mane, Baroda V. The Income tax Officer,Ward-2(2), Baroda

ITA 3934/AHD/2008

• Counselvise Citation: 393420514 RSA 2008
• Duration Of Justice: 3 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-10-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A TINKEY
• Assessee Lawyers: URVASHI SHODHAN

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' ( & &' ( & &' ( & &' ( & ' ' ' ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.3934/AHD/2008 [ASSTT.YEAR : 2005-2006] RAJENDRA V. MANE PROP: MANE ROAD LINES 22, MARUTI COMPLEX PLOT NO.8, GIDC, RANOLI, BARODA. /VS. ITO, WARD-2(2) BARODA. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : MS.URVASHI SHODHAN ( / 0 &/ REVENUE BY : SHRI A TINKEY 2 / %3'/ DATE OF HEARING : 17 TH OCTOBER, 2012 456 / %3'/ DATE OF PRONOUNCEMENT : 02-11-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-2006 IS DIREC TED AGAINST THE ORDER OF THE CIT(A). 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE A S UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONORABLE C.I.T.(A)II. BARODA VIDE HIS ORDER DI RECTED THE INCOME TAX OFFICER TO EXAMINE THE ASSESSEE'S CLAIM AND TO ALLOW THE EXPENSES RELATING TO MARCH, 2005 ON WHICH TDS WAS DEDUCTIBLE IN THAT MONTH, BUT THE ID. INCOME TAX OF FICER ERRED ITA NO.3934/AHD/2008 -2 IN FOLLOWING ORDER OF HONORABLE CIT(A)-II, BARODA A ND NOT ALLOWED THE WHOLE AMOUNT OF FREIGHT EXPENSES DEBITE D ON 31/03/2005 RS.34,05,495/-. 2. APPELLANT HAD CONTENDED BEFORE THE LD.CIT(A) THA T FOR THE FOLLOWING PARTIES FREIGHT EXPENSES WAS DEBITED ON 31/03/2005 AND THEREFORE TDS ON THE SAME WAS TO HE PAID ON 31/05/2005. SR. NAME OF THE PARTY AMOUNT OF FREIGHT NO. DEBITED ON 31 /03/2005 1. M/S AMRITRAJ BULK MOVERS RS. 8,03.719/- 2. M/S MAKHIJA ROAD LINES RS. 5,71,393/- 3. M/S RAJ MOVERS & TRADERS RS. 18,37,783/- 4. M/S S.M. CARRIERS RS. 1,92,600/- TOTAL RS. 34,05,495/- 3. FURTHER, IT WAS CONTENDED BY THE APPELLANT THAT AS PER AMENDMENT OF PROVISIONS. TDS DEDUCTIBLE IN MARCH, 2 005 WAS PAID ON 07/07/2005, I.E. BEFORE THE DUE DATE OF FIL ING OF RETURN OF INCOME AND THEREFORE AMOUNT OF RS.34,05,495/- WAS N OT DISALLOWABLE U/S 40(A)(IA) OF THE I.T. ACT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ID. INCOME TAX OFFICER WHILE FOLLOWING ORDER OF HONORAB LE CIT(A)-II, BARODA OUGHT TO HAVE ALLOWED THE WHOLE A MOUNT OF RS. 34,05,495/-. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS PAID TDS AMOUNT BEFORE THE DUE DATE OF FILING O F THE RETURN, AND THEREFORE RATIO OF DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S.VIRGIN CREATORS DATED 23.11.2011 IN GA NO.3200/2011 WAS APPLICABLE TO THE FACTS OF THE CASE OF THE ASSE SSEE, AND THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. THE LEARNED DR RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE RATIO OF DECISION OF ITA NO.3934/AHD/2008 -3 THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S. VIRGIN CREATORS DATED 23.11.2011 (SUPRA) AND ALSO THE DECISION OF T HE ITAT, AHMEDABAD BENCH IN SHRI RAJ CORPORATION VS. ITO, AH MEDABAD IN ITA NO.44/AHD/2010 DATED 6.7.2012 APPLIES TO THE FA CTS OF THE CASE OF THE ASSESSEE. HOWEVER, IN ALL FAIRNESS TO THE REVE NUE, WE RESTORE THE ISSUE IN THE GROUNDS OF THE APPEAL OF THE ASSESSEE TO THE FILE OF THE AO TO VERIFY THAT WHETHER IN FACT THE ASSESSEE HAS DEP OSITED THE AMOUNT OF TDS BEFORE THE DUE DATE OF FILING OF THE RETURN IN THIS CASE AND DECIDE THE ISSUE ACCORDINGLY IN THE LIGHT OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S.VIRGIN CREAT ORS AND THE ITAT, AHMEDABAD IN THE CASE OF SHRI RAJ CORPORATION (SUPR A), AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD