Shri Chamunda Credit Co. Op. Society Ltd., RAJKOT-GUJARAT V. The IncomeTax Officer, Ward-1(3), RAJKOT-GUJARAT

ITA 418/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0171 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 25-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DM RINDANI
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVAST AVA, AM ITA NO.418/RJT/2012. / ASSESSMENT YEAR 2007-08 SHRI CHAMUNDA CREDIT CO-OPERATIVE SOCIETY LIMITED, FAMOUS SHOPPINGCENTER, 150 FEET RING ROAD, NEAR PARIJAT PARTY PLOT, CHANDRA PARK MAIN ROAD, RAJKOT-360002 ( * / APPELLANT) VS. THE INCOME TAX OFFICER, WARD 1(3) RACE COURSE, RING ROAD, RAJKOT +,* / RESPONDENT -. / ASSESSEE BY SHRI. D.M.RINDANI . / REVENUE BY SHRI AVINASH KUMAR . / DATE OF HEARING 17.9.2012 . / DATE OF PRONOUNCEMENT 21.09.2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 19.3.2012 OF CIT(A) FOR THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE IN THIS APPEAL HAS RAISED THE FOLL OWING GROUNDS: 1. THE LD. CITA) ERRED IN SUSTAINING THE DISALLOWA NCE OF COMMISSION EXPENSES OF RS.13,73,254/- U/S 40(A)(IA) FOR NON DE DUCTION OF TDS U/S 194H AND PROFESSIONAL FEES OF RS.67,500/- U/S 40(A )(IA) FOR NON DEDUCTION OF TDS U/S 194J OF THE ACT; 2 THE CIT(A); ERRED IN ONLY DIRECTING THE AO TO ALL OW DEDUCTION U/S 80P AND IN NOT ALLOWING THE SAME HIMSELF 3. APROPOS GROUND NO.1, AT THE TIME OF HEARING, SHRI. D.M.RINDANI, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT BOTH THE PA YMENTS I.E. RS.13,73,254/- AND RS.67,500/- ON ACCOUNT OF COMMISSION EXPENSES AND PROFESSIONAL FEES 2 ITA NO.418/RJT/2012. RESPECTIVELY, HAVE BEEN PAID DURING THE YEAR AND HENCE THE PROVISIONS OF SECTION 40(A)(IA,) OF THE INCOME TAX ACT 1961 DOES NOT APPLY TO THESE PAYMENTS. MOREOVER, THIS ISSUE STANDS COVERED IN FAVOUR OF TH E ASSESSEE AND AGAINST THE REVENUE BY THE JUDGMENT OF INCOME TAX APPELLATE T RIBUNAL, VISAKHAPATNAM, SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TR ANSPORTS V/S ADDITIONAL COMMISSIONER OF INCOME-TAX, RANGE-1, VISAKHAPATNAM [2012] 20 TAXMANN.COM 244 (VISAKHAPATNAM - TRIB.) (SB). 4. ON THE OTHER HAND, SHRI AVINASHKUMAR, THE LD. DR APPEARED ON BEHALF OF THE REVENUE AND CONTENDED THAT THE MATTER NEEDS VER IFICATION AT THE END OF THE AO, THEREFORE, THE ISSUE MAY BE RESTORED TO THE FIL E OF THE AO FOR FRESH ADJUDICATION. 5. HAVING HEARD BOTH THE PARTIES, WE HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ISSUE RAISED IN THIS GROUND STANDS COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORTS V/S ADDITIONAL COMMIS SIONER OF INCOME- TAX,(SUPRA). WE ALSO FIND MERITS IN THE CONTENTION OF THE LD.DR THAT THE ISSUE NEEDS VERIFICATION AT THE LEVEL OF AO. ACCORDINGLY, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE BACK THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER GIVING OPPORTUNITY OF HEAR ING TO THE ASSESSEE. THEREFORE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND DIRECT THE AO TO VERIFY THE ISSUE AND DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. RESULTANTLY, GROUND NO.1 IS ALLOWE D FOR STATISTICAL PURPOSE. 6. APROPOS GROUND NO.2, AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THIS GROUND, THEREFORE, T HE SAME IS DISMISSED AS NOT 3 ITA NO.418/RJT/2012. PRESSED. EVEN OTHERWISE, THE PLEA RAISED IN THIS GR OUND IS RENDERED INFRUCTUOUS IN VIEW OF OUR ABOVE DECISION IN GROUND NO.1. 7. APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE D ATE MENTIONED HEREINABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 21-09-2012. /RAJKOT SRL . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-, 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A). 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL , RAJKOT.