M/s Prestige International, Panchkula V. Addl. CIT, Panchkula

ITA 397/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9979 (ITAT-CHANDIGARH)
• Duration Of Justice: 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTALDR
• Assessee Lawyers: PARIKSHIT AGGA RWALCA
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 397/CHD/2016 ASSESSMENT YEAR : 2011-12 M/S PRESTIGE INTERNATIONAL, VS THE ADDL.CIT, 267,INDUSTRIAL AREA,PHASE-I, PANCHKULA RANGE, PANCHKULA. PANCHKULA. PAN: AAIFP2677L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGA RWAL,CA RESPONDENT BY : SHRI S.K.MITTAL,DR DATE OF HEARING : 18.05.2016 DATE OF PRONOUNCEMENT : 18.05.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS), PANCHKULA DATED 09.0 3.2016 FOR ASSESSMENT YEAR 2011-12, CHALLENGING THE ADDITI ON OF RS. 4,50,000/- UNDER SECTION 40(A)(IA) READ WITH SE CTION 194J OF THE INCOME TAX ACT. 2. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED IN RESPECT OF NON DEDUCTION OF TDS ON CERTAIN PAYMENTS. AS PER DETAILS OF TDS AND IN VIE W OF PROVISIONS OF SECTION 194J, THE ASSESSEE WAS REQUIR ED TO DEDUCT TAX ON THE PAYMENT OF RS. 4,50,000/- MADE TO SHRI K.R.BAJPAI. THE ASSESSING OFFICER FOUND THAT TAX W AS DEDUCTED BUT NOT DEPOSITED BEFORE THE DUE DATE ON T HE 2 PAYMENT OF PROFESSIONAL FEES OF RS. 4,50,000/- TO S HRI K.R.BAJPAI. SAME WAS DISALLOWED UNDER SECTION 40(A )(IA) OF THE ACT. THE CONTENTION OF THE ASSESSEE THAT TDS WAS DEPOSITED BEFORE FILING OF THE INCOME TAX RETURN WA S NOT ACCEPTED BECAUSE IN ASSESSEE'S CASE, RETURN WAS FIL ED LATE BEYOND THE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE ACT. FURTHER, THE CONTENTION OF THE ASSESSEE THAT PAYMENT MADE WAS NOT ACTUALLY PROFESSIONAL CHARGES, WAS NOT ACCEPTED BECAUSE THE ASSESSEE HAD ITSELF DEBITE D PAYMENT UNDER THE HEAD PROFESSIONAL CHARGES. THE ASSESSING OFFICER, THEREFORE, DISALLOWED RS. 4,50,0 00/- UNDER SECTION 40(A)(IA) OF THE ACT. 3. THE ASSESSEE AT THE APPELLATE PROCEEDINGS SUBMIT TED THAT ASSESSEE IS A PARTNERSHIP FIRM AND CLAIMED CER TAIN PROFESSIONAL CHARGES IN THE PROFIT & LOSS ACCOUNT. ONE OF THE ITEM IN THE AGGREGATE PROFESSIONAL CHARGES WAS PAYMENT OF RS.4,50,000/- TO SHRI K.R.BAJPAI. THE ASSESSEE DEDUCTED TDS OF RS. 45,000/- UNDER SECTION 194J BUT DEPOSITED TDS ON 27.03.2012 WHICH IS BEYON D THE DUE DATE PRESCRIBED FOR FILING THE RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION. IT WAS SUBMITTED THA T SHRI K.R.BAJPAI DISCLOSED THESE PROFESSIONAL CHARGES AS HIS INCOME FOR THE YEAR IN QUESTION ITSELF AND ASSESSEE RELIED UPON DECISION OF THE DELHI HIGH COURT IN THE CASE O F CIT VS ANSAL LAND MARK TOWNSHIP (P) LTD. 377 ITR 635, REGARDING APPLICABILITY OF PROVISO FROM RETROSPECTI VE EFFECT. THE ALTERNATE CONTENTION OF THE ASSESSEE W AS THAT 3 SINCE TDS HAS BEEN DEPOSITED LATE IN SUCCEEDING YEA R, THE SAME IS ALLOWABLE IN THE NEXT YEAR. 4. THE LD. CIT(APPEALS) DID NOT DECIDE THE QUESTION OF INCOME DECLARED BY SHRI K.R.BAJPAI IN HIS RETURN OF INCOME AND PAID TAXES, HOWEVER, HE HAS ACCEPTED THE ALTERNATE CONSTRUCTION OF THE ASSESSEE AND DIRECTED ASSESSING OFFICER TO ALLOW DEDUCTION OF RS. 4,50,00 0/- IN SUCCEEDING ASSESSMENT YEAR 2012-13. 5. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM OF THE VIEW THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL O F THE LD. CIT(APPEALS). THE LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE ISSUE OF PROFESSIONAL CHARGES DECLARED AS INCOME BY SHRI K.R.BAJPAI IN THE YEAR UNDER APPEAL ITSELF IN THE LIGHT OF DECISION OF THE DELHI HIGH COURT IN THE CA SE OF ANSAL LAND MARK TOWNSHIP (P) LTD. (SUPRA) WAS NOT CONSIDERED AND DECIDED BY THE LD. CIT(APPEALS). TH E LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE RETURN OF INCOME, COMPUTATION OF INCOME, FORM 16A AND FORM 26AS AND FORM 26A IN THE CASE OF SHRI K.R.BAJPAI AS FILED IN THE PAPER BOOK AND SUBMITTED THAT THE SAME WOULD SHOW T HAT SINCE TAXES HAVE BEEN PAID BY SHRI K.R.BAJPAI THERE FORE, SECOND PROVISO TO SECTION 40(A)(IA) IS APPLICABLE T O THIS CASE WHICH IS DECLARATORY AND CURATIVE IN NATURE AN D HAS RETROSPECTIVE EFFECT FROM 01.04.2005. 6. ON CONSIDERATION OF THE ABOVE FACTS AND RIVAL SUBMISSIONS, IT IS CLEAR THAT SHRI K.R.BAJPAI DISCL OSED THE 4 IMPUGNED AMOUNT IN HIS RETURN OF INCOME AND PAID TA XES WHICH IS SUPPORTED BY THE ABOVE DOCUMENTS REFERRED TO BY LD. COUNSEL FOR THE ASSESSEE. THEREFORE, IT WAS DU TY OF THE LD. CIT(APPEALS) TO DECIDE THIS ISSUE IN THE LIGHT OF DECISION OF THE DELHI HIGH COURT IN THE CASE OF ANS AL LAND MARK TOWNSHIP (P) LTD.(SUPRA) WHICH LD. CIT(APPEALS ) HAS FAILED TO DECIDE IN THE PRESENT APPEAL. 7. I, THEREFORE, SET ASIDE THE ORDERS OF LD. CIT(AP PEALS) AND RESTORE THIS ISSUE ONLY TO THE FILE OF LD. CIT( APPEALS) WITH DIRECTION TO DECIDE THIS ISSUE IN ACCORDANCE W ITH LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. I MAKE IT CLEAR THAT THE LD. CIT( APPEALS) ALLOWED THE ALTERNATE CONTENTION OF THE ASSESSEE WI TH REGARD TO ALLOWING RELIEF IN SUBSEQUENT ASSESSMENT YEAR 2012-13 AND SUCH FINDING SHALL NOT BE FURTHER SUBJE CT MATTER IN ISSUE BEFORE HIM IN THE REMAND PROCEEDING S. 8. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 18 TH MAY, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD