M/s Rakesh Kumar & Co., Panipat V. ACIT, Panipat

ITA 4439/DEL/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69634 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 06-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 20-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEEK KUMAR
• Assessee Lawyers: K C ANEJA ITP

Judgement Text

ITA NO. 4439/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 4439/DEL/2009 A.Y. : 200 6 - 0 7 M/S RAKESH KUMAR & CO. NO. 166, MODEL TOWN, PANIPAT PAN: AAGFR0164A) VS. ACIT. PANIPAT CIRCLE, PANIPAT (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. K. C. ANEJA, ITP DEPARTMENT BY : SH. VIVEEK KUMAR, D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), KARNA L DATED 07.9.2009 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED READ AS UNDER:- (I) THAT THE AMENDED PROVISIONS OF SECTION 40(A)(I A) ARE ULTRAVIRES AND ASSESSMENT THUS BAD IS ILLEGAL. (II) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER HAS WRONGLY AND ARBITRARILY ADD THE INCOME SUM OF RS. 1,45,67,595/- FOR THE ALLEGED DEFAULT OF THE PROVISIONS OF SECTI ON 40(A)(IA) READ WITH SECTION 200(1) OF THE I.T. ACT , ITA NO. 4439/DEL/2009 2 1961 AND THE LD. CIT(A) ERRED IN CONFIRMING THE SAME. (III) THAT TAX DEDUCTED AT SOURCE WITH INTEREST WER E DEPOSITED BEFORE FILING OF THE RETURN AS SUCH CREDI T FOR THE SAME AND PROPORTIONATE ADVANCE PAYMENTS FOR S. 63,98,053/- SHOULD HAVE BEEN ALLOWED. (IV) THAT PART PAYMENTS WERE MADE FOR HIRING OF MACHINERY AND TRUCKS. THE LD. AO AND THE LD. CIT(A) IGNORED THESE FACTS AND WITHOUT ANY BASIS MADE ADDITIONS RS. 1,54,67,585/-, WHICH IS WRONG. (V) THE APPELLANT CRAVES FOR LEAVE TO ADD, AMEND OR WITHDRAW ANY GROUNDS OF APPEAL BEFORE THE HEARINGS. 3. AT THE THRESHOLD, WE NOTE THAT ASSESSEE HAS NOT PRESSED THE GROUND NO. 1, HENCE THE SAME IS DISMISSED AS SUCH. 4. IN THIS CASE THE LD. AO ADDED A SUM OF RS. 1,54, 67,595/- TO THE INCOME OF THE ASSESSEE FOR DEFAULT OF THE PROVISION S OF SECTION 40(A)(IA) READ WITH SECTION 200(1) OF THE I.T. ACT. 5. BEFORE THE LD. CIT(A) ASSESSEE INTER-ALIA SUBMIT TED THAT THE TAX HAS DULY BEEN DEPOSITED BEFORE FILING OF THE RETURN IN THIS CASE. FURTHERMORE, IT WAS SUBMITTED THAT DATE OF FILING OF RETURN WAS EXTENDED UPTO OCTOBER. HOWEVER, LD. CIT(A) DID NO T ACCEPT THE SAME. HE OBSERVED THAT ASSESSEE HAS NOT SUBMITTED ANY EVIDENCE IN THIS REGARD. LD. CIT(A) WENT ON TO AFFIRM THE ORDER OF THE LD. AO. 6. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPE AL BEFORE US. ITA NO. 4439/DEL/2009 3 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT ASSESSEES CLAIM IN THIS REGARD IS THAT A SSESSEE HAS DULY COMPLIED WITH THE PROVISIONS OF SECTION 40(A)(IA). THE TAX DEDUCTED HAS BEEN PAD UPTO THE DATE OF FILING OF RETURN. HE NCE, IT IS THE ASSESSEES PLEA THAT NO DISALLOWANCE IN THIS REGAR D SHOULD BE MADE. IT HAS FURTHER BEEN THE SUBMISSION OF THE ASSESSEE THAT DATE OF FILING OF THE RETURN FOR THE ASSTT. YEAR 2006-07 WAS EXTEN DED FROM 31.7.2006 TO 31.10.2006 IN RESPECT OF NON-CORPORATE TAX PAYERS. FOR THIS PURPOSE, ASSESSEE HAS ALSO ENCLOSED COPY O F THE CIRCULAR IN THIS REGARD. 7.1 WE FIND THAT THE ISSUE OF EXTENSION OF DATE OF FILING OF THE RETURN AND THE PAYMENTS OF TAX DEDUCTED BEFORE THE FILING OF THE DATE OF RETURN ARE BOTH FACTUAL MATTERS. WE FIND T HAT ASSESSEE HAS SUBMITTED COPY OF 203 CTR (ST.) 77 IN SUPPORT OF TH E PLEA THAT DATE OF FURNISHING OF RETURN OF INCOME FOR ASSTT. YEAR 2006-07 WAS EXTENDED FROM 31.7.2006 TO 31.10.2006 IN CASES OF NON-CORPORATE TAX PAYERS. IN OUR CONSIDERED OPINION, INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER IS REMITTED TO THE FILE OF TH E LD. AO. ASSESSING OFFICER IS DIRECTED TO EXAMINE AS TO WHETHER THE T AX DEDUCTED HAVE BEEN DEPOSITED BEFORE THE DATE OF FILING OF THE R ETURN. LD. AO HAS TO GIVE CREDIT TO THE ASSESSEE TO THE EXTENT, TAX D EDUCTED, HAS BEEN DEPOSITED BY THE SAID DATE. NEEDLESS TO ADD THAT T HE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEA RD. ITA NO. 4439/DEL/2009 4 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22/11/2013. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE: 22/11/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 4439/DEL/2009 5