Shri Mukesh Bhimraj Gupta, Baroda V. The Addl.CIT.,Range-1, Baroda

ITA 4089/AHD/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50638 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 15-09-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 19-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y C SURTI
• Assessee Lawyers: M J SHAH
• Section: 43B

Judgement Text

ITA.NO.4089/AHD/2008. A SSTT.YEAR 2005- 06 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH,AH MEDABAD. (BEFORE SHRI BHAVNESH SAINI AND SHRI A. MOHN ALANK AMONY) I.T.A. NO. 4089/AHD/2008 (ASSESSMENT YEAR 2005-06) SHRI MUKESH BHIMRAJ GUPTA, C/O. M/S. MUKESH ENGINEERS, 28, SHIVDAS NAGAR, MAKARPURA, BARODA. (APPELLANT) VS. ADDITIONAL COMMISSIONER OF INCOME TAX,RANGE-1, AAYKAR BHAVAN, NEAR RACE COURSE CCIRCLE, BARODA. (RESPONDENT) PAN: ACXPG 1516C APPELLANT BY : SHRI M.J.SHAH RESPONDENT BY : SHRI Y.C.SURTI DATE OF HEARING : 15-9-2011 DATE OF PRONOUNCEMENT : ( (( ( )/ )/)/ )/ ORDER PER: SHRI A. MOHAN ALANKAMONY,A.M. THIS APPEAL IS FILED BY THE ASSESSEE FOR THE ASSES SMENT YEAR 2005-06 DIRECTED AGAINST THE ORDER OF LD. CIT (A)-II, BAROD A IN APPEAL NO CAB/II- 702/07-08 DATED 13-8-2008. 2. THE ASSESSEE HAS RAISED TWO GROUNDS WHEREIN GROU ND NO.2 IS GENERAL IN NATURE AND DOES NOT REQUIRED TO BE ADJUDICATED. GROUND NO.1 IS STATED IN ITA.NO.4089/AHD/2008. A SSTT.YEAR 2005- 06 2 THREE ELABORATE PARAS VIZ 1.1 TO 1.3, HOWEVER THE C RUX OF THE ISSUE IS THAT THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.44,31,334/- MADE U/S. 43B OF THE ACT SINCE THE APPELLANT HAD NOT PRODUCED THE PRESCRIBED CERTIFICATE IN FORM D FROM THE SPECIFIED MENTIONED INSTITUTION IN COMPLIANCE WITH THE SALES TAX DEPARTMENT SCHEME. 3. AT THE OUTSET OF THE HEARING LD. D.R. SUBMITTED THAT IN THE ASSESSEES CASE FOR ASSESSMENT YEAR 2003-04 AND 2004-05 THE SA ME ISSUE HAD CROPPED UP AND THE HONBLE BENCH OF THE ITAT AHMEDABAD HAD REMITTED BACK THE ISSUE TO THE FILE OF LD. AO FOR HIM TO VERIFY THE C ERTIFICATE AND GRANT RELIEF TO THE APPELLANT IF THE CERTIFICATE IS FOUND TO BE IN ORDER. THE LD. A.R. PRODUCED THE COPY OF THE ORDER OF THE TRIBUNAL IN ITA NO.121 8 & 810/AHD./2008 FOR A.Y. 2003-04 & 2004-05 DATED 22-7-2011. THE RELEVAN T PARA OF THE ITATS ORDER MENTIONED (SUPRA) IS REPRODUCED HEREUNDER:- THE LD. A.R. SHRI J.P. SHAH SUBMITTED THAT THE ASS ESSEE WAS IN POSSESSION OF THE SALES TAX DEPARTMENT CERTIFICATE FROM THE SALES TAX AUTHORITIES BUT HE HAD NOT OBTAINED THE CERTIFICATE FOR CONVERSION OF LOAN BEFORE FILING OF THE RETURN OF INCOME. SUCH CE RTIFICATE OF LOAN IS ONLY A MERE FORMALITY AND THE SPECIFIED FINANCIAL I NSTITUTIONS ARE NOT INVOLVED IN ANY MANNER. THE DEFERRED PAYMENT IS DIR ECTLY PAID TO SALES TAX AUTHORITIES AND NOT THROUGH ANY FINANCIAL INSTITUTIONS. LD. A.R. FURTHER PRAYED THAT ADDITION BY WAY OF STRICT INTERPRETATION IS NOT WARRANTED AS THESE LAWS WERE ENACTED TWENTY YEARS B ACK. LD. A.R. FURTHER PRESENTED BEFORE THE BENCH THE REQUISITE FO RM-D DATED 12/1/10 AND EXPLAINED THAT THERE WAS A DELAY IN OBT AINING THE FORM DUE TO GOVERNMENT PROCEDURES. LD. A.R. PRAYED THAT THE DELAY MAY BE CONDONED AND THE FORM NO.0-6655/12.1.10 MAY BE CONS IDERED AND RELIEF GRANTED. WE HAVE PERUSED THE COPY OF FORM D IN REGIONAL LANGUAGE FILED ALONG WITH THE ENGLISH TRANSLATION. IN THE INTEREST OF JUSTICE WE DEEM IT FIT FOR THE MATTER TO BE REMANDE D BACK TO THE FILE OF THE LD. A.O. FOR HIM TO VERIFY THE CERTIFICATE AND GRANT RELIEF TO THE APPELLANT IF THE CERTIFICATE IS FOUND TO BE IN ORDE R. ITA.NO.4089/AHD/2008. A SSTT.YEAR 2005- 06 3 4. THE LD. A.R. PRAYED THAT THE IDENTICAL ISSUE ARI SING IN THIS APPEAL FOR THE ASSESSMENT YEAR 2005-06 MAY ALSO BE REMITTED BA CK TO THE FILE OF THE AO FOR SUCH VERIFICATION. THE LD. D.R. MAGNANIMOUSLY E XPRESSED HIS CONSENT FOR THE MATTER TO BE REMITTED BACK TO THE FILE OF T HE LD. AO FOR SUCH VERIFICATION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDER OF THE TRIBUNAL PRODUCED BY THE LD. A.R.. THE ISSUE RAISED IN THE PRESENT APPEAL APPEARS TO BE IDENTICAL WITH THAT FOR THE EARLIER A SSESSMENT YEARS AS SUBMITTED BY THE LD. A.R. SINCE THE LD. A.R. CLAIM S THAT THE APPELLANT IS IN POSSESSION OF FORM D THOUGH BELATEDLY OBTAINED FROM THE SPECIFIED FINANCIAL INSTITUTIONS, IN THE INTEREST OF JUSTICE WE ARE OF THE CONSIDERED VIEW THAT THE MATTER NEEDS TO BE REMITTED BACK TO THE FILE OF THE LD. A.O AS DIRECTED IN OUR EARLIER ORDER MENTIONED SUPRA. IT IS ORDERED ACCORD INGLY. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 23 - 9 - 2011. SD/- SD/- (BHAVNESH SAINI) ( A. MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. DATED: 23 -9- 2011. S.A.PATKI. ITA.NO.4089/AHD/2008. A SSTT.YEAR 2005- 06 4 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-II, BARODA. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 16 - 9 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 16 / 9 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 23 -9 -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 23 - 9 -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 23 - 9 -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 3 - 9 -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..