ACIT, Ghaziabad V. Pankaj Bhargava, Ghaziabad

ITA 4665/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65769 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRISILLA SINGCIT
• Assessee Lawyers: ASHWANI TANEJA
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NO.4665/DEL./2012 (ASSESSMENT YEAR : 2009-10) ACIT, CIRCLE 2, VS. PANKAJ BHARGAVA, GHAZIABAD. RDC-69, RAJ NAGAR, GHAZIABAD. (PAN/GIR NO.AFFPB9109R) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA, FCA. REVENUE BY : MS. PRISILLA SINGCIT, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER PASSED BY THE CIT(A), GHAZIABAD DATED 14.06.2012, RELEVANT TO ASSESSMENT YEAR 2009-10, WHEREBY ACTION OF THE CIT(A) IN DELETING THE DISALLOWANCE MADE U/S 40A(IA ) OF THE I.T. ACT, 1961 HAS BEEN CHALLENGED. 2. FACTS INDICATE THAT THE ASSESSEE IS A PROVIDING ENGINEERING CONSULTANCY SERVICES UNDER THE NAME AND STYLE OF PROPRIETORSHIP CONCERN M/S ALPS ENGINEERS. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN TOTAL T URNOVER OF RS.1,14,09,900/- AS AGAINST TOTAL TURNOVER OF RS.1,14,03,987/- IN THE IMMEDIATE LY PRECEDING YEAR. ASSESSEE HAS SHOWN HIS NET PROFIT OF RS.24,55,782/- AT N.P. RATE OF 21.52% AS AGAINST RS.13,96,649/- AT N.P. RATE OF 12.25% IN THE IMMEDIATELY PRECEDING YE AR. ASSESSING OFFICER NOTICED FROM THE PERUSAL OF THE DOCUMENTS SUBMITTED BY THE ASSES SEE THAT THE ASSESSEE HAS CLAIMED MAJOR EXPENSES UNDER THE HEADS COMMISSION PAID, DES IGN CHARGES AND SURVEY CHARGES. THE ASSESSEE HAS DEDUCTED TAX FOR THESE PAYMENTS U/ S 194C & 194H OF THE I.T. ACT, I.T.A. NO.4665/DEL./2012 (A.Y. : 2009-10) 2 1961. IN ORDER TO ENQUIRE ABOUT THE APPLICABILITY OF SECTION 194C AND SECTION 194H OF THE ACT, THE ASSESSING OFFICER ASKED THE ASSESSEE TO PR ODUCE SOME OF THE PARTIES TO WHOM THE DESIGN CHARGES AND SURVEY CHARGES AND COMMISSION HA D BEEN PAID CONSIDERING THE FACT THAT SURVEY WORK AND DESIGN WORK ATTRACT SPECIALIZE D/PROFESSIONAL AND TECHNICAL INPUT AND CANNOT BE CLUBBED WITH NORMAL CONTRACT WORK U/S 194 C OF THE I.T. ACT, 1961. THE ASSESSEE FAILED TO PRODUCE ANY OF THE PARTIES. AF TER THAT SUMMONS WERE INDEPENDENTLY ISSUED BY THE ASSESSING OFFICER ON 21.12.2011 FOR T HEIR PRESENCE ON 26.12.2011. IN PURSUANCE OF THESE SUMMONS, ONLY ONE PARTY, NAMELY, M/S KAMAL ENGINEERS ATTENDED THE PROCEEDINGS. SMT. KAMAL TYAGI, PROP. OF M/S KAMAL ENGINEERS STATED ON OATH THAT SHE HAS WORKED FOR THE ASSESSEE. SHE IS POST GRADUATE IN ART AND A GRADUATE. SHE HAS RECEIVED MAP FROM SHRI PANKAJ BHARGAVA AND AFTER TH AT SHE MADE A CHART WITH THE LEVEL, NOD, POPULATION, HEAD/TAIL ETC. PRESENT ON THE MAP. VIDE QUESTION NO.5, SHE WAS SPECIALLY ASKED IF SHE HAD FILLED THE DATA HERSELF. SHE REPLIED THAT SHE FILED THE SAID DATA WITH THE HELP OF HER HUSBAND, SHRI PRAMOD KUMAR TYA GI, WHO IS RETIRED ENGINEER. ASSESSING OFFICER CONSIDERING THE REPLY OF THE SAID , SMT. KAMAL TYAGI AND EARLIER YEARS PROCEEDINGS HAS CONCLUDED TO HOLD THAT ASSESSEE HAS DEDUCTED THE TAX AT SOURCE U/S 194C AT 1% WHEREAS IT OUGHT TO HAVE BEEN DEDUCTED U/S 19 4J AT 10%. SO, THE DIFFERENCE CALCULATED ON THE BASIS OF RATE HAS BEEN DISALLOWED U/S 40A(IA) OF THE ACT. 3. ASSESSEE TOOK UP THE MATTER IN APPEAL AND CIT(A) WHILE FOLLOWING HIS EARLIER ORDER FOR THE ASSESSMENT YEAR 2008-09, HAS CONCLUDE D TO DELETE THE IMPUGNED ADDITION AFTER THOROUGHLY DISCUSSING RELEVANT PROVISIONS OF LAW AND OTHER MATERIAL FACTS IN THE LIGHT OF VARIOUS DECISIONS. 4. AGGRIEVED BY THIS ORDER OF CIT(A), DEPARTMENT HA S COME UP IN APPEAL AND WHILE RELYING UPON ASSESSING OFFICERS ORDER, IT WAS PLEA DED FOR SETTING ASIDE THE CIT(A)S ORDER AND RESTORING THAT OF THE ASSESSING OFFICER. WHEREAS LD.COUNSEL FOR THE ASSESSEE WHILE STRONGLY OPPOSING THE PLEA OF THE DEPARTMENT HAS FILED COPY OF F BENCH ORDER OF THE TRIBUNAL IN HIS OWN CASE FOR THE ASSESSMENT YEA R 2008-09, WHEREBY REVENUES APPEAL ON SIMILAR ISSUE HAS BEEN DISMISSED. SO, HE HAS FI LED COPY OF THE ORDER PASSED IN ITA NO.86/DEL./2012 FOR ASSESSMENT YEAR 2008-09 DATED 2 6.10.2012 TO PLEAD FOR CONFIRMATION OF CIT(A)S ORDER, AS THERE IS NO CHANGE OF FACTS A ND ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN EARLIER YEARS APPEAL BEF ORE ITAT. THEREFORE, THIS BEING COVERED I.T.A. NO.4665/DEL./2012 (A.Y. : 2009-10) 3 MATTER, BY DISMISSING THE APPEAL OF THE REVENUE, OR DER OF THE CIT(A) MAY BE CONFIRMED. AT THIS JUNCTURE, LD.DR WAS ASKED TO COMMENT, BUT S HE JUST RELIED UPON ORDER OF ASSESSING OFFICER WITHOUT CONTROVERTING THE FACTS T HAT ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 5. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MAT ERIAL ON RECORD AND FIND THAT ISSUE RAISED IN THIS APPEAL IS SIMILAR TO THE ISSUE INVOLVED FOR THE ASSESSMENT YEAR 2008-09 AND IN THAT CASE AGAINST ORDER OF CIT(A) DELETING T HE IMPUGNED ADDITION U/S 40A(IA), DEPARTMENT HAS COME UP IN APPEAL WHICH HAS BEEN DIS MISSED. THEREFORE, WHILE FOLLOWING THE PRECEDENT, WE UPHOLD THE ORDER OF CIT(A) AS ISS UE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND DISMISS THE APPEAL OF THE REVENUE. 6. AS A RESULT, THE APPEAL FILED BY THE DEPARTMENT GETS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 09.11.2012. SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : NOV. 09, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), GHAZIABAD. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT