The ITO, Ward-1(4), RAJKOT-GUJARAT V. Shri Jayendrasinh Kiritsinh Vala, RAJKOT-GUJARAT

ITA 504/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0128 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-12-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 04-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DM RINDANI
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI B.R.JAIN, AM ITA NO.504/RJT/2012. / ASSESSMENT YEARS 2009-10 INCOME TAX OFFICER, WARD 1(4), AAYAKAR BHAVAN, 5TH FLOOR, ROOM NO.507, RACE COURSE, RING ROAD RAJKOT -360001 ( / APPELLANT) VS. SHRI JAYENDRA KIRITSINH VALA PROP. M/S RAVI ENTERPRISE, MAIN BAZAR, AT PRANSLA. TAL. UPLETA. DIST RAJKOT.. PAN:AEYPV9999M / RESPONDENT / REVENUE BY SHRI AVINASH KUMAR ' / ASSESSEE BY SHRI D.M.RINDANI & /DATE OF HEARING 5.12.2012 & / DATE OF PRONOUNCEMENT 7.12.2012 / / / / ORDER & && &. .. . . . . . , ,, , / T. K. SHARMA, J. M. THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DATED 25.2.2012 OF CIT(A)-I, RAJKOT FOR THE ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE REVENUE IN THIS APPEAL READS AS UNDER : 1. THE LD. CITA)-I, HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.46,64,549/- U/S SECTION 40 (A)(IA) MADE BY THE AO ON ACCOUNT OF TAX NOT BEEN DEPOSITED OR PAID DURING THE PREVIOUS YEAR. 3. FACTS RELATING TO CONTROVERSY RAISED IN THIS GROUND ARE THAT THE ASSESSEE IS ENGAGED IN CONSTRUCTION ACTIVITIES VIZ DRAINAGE, WIND FOUNDATION, SMALL BRIDGE ETC. DURING THE YEAR UND ER CONSIDERATION, THE ITA NO.504/RJT/2012. 2 AO MADE DISALLOWANCE U/S 40(A)(IA) AMOUNTING TO RS.46 ,64,549/- AS THERE WAS VIOLATION OF THE PROVISIONS OF SECTION 194C OF THE IN COME TAX ACT, 1961(THE ACT) IN MAKING PAYMENTS TO DIFFERENT PARTIE S ON VARIOUS DATES AND AS DISCUSSED IN PARAGRAPHS 4 OF THE ASSESSMENT ORDER. O N APPEAL, BEFORE THE LD. CIT(A), THE LD. AR OF THE ASSESSEE POI NTED OUT THAT THE HONBLE HIGH COURT OF THE CALCUTTA IN THE CASE OF C IT V/S VIRGIN CREATIONS IN ITA NO.302 OF 2011, DATED 23.11.2011 HAS HELD THAT : MOREOVER, THE SUPREME COURT, AS HAS BEEN RECORDED BY THE LEARNED TRIBUNAL, IN THE CASE OF ALLIED MOTORS PVT. LTD. AND ALSO IN THE CASE OF ALOM EXTRUSIONS LTD., HAS ALREADY DECIDED THA T THE AFORESAID PROVISION HAS RETROSPECTIVE APPLICATION. AGAIN , IN THE CASE REPORTED IN 82 ITR 570, THE SUPREME COURT HELD THA T THE PROVISION, WHICH HAS INSERTED THE REMEDY TO MAKE THE PROVISION WOR KABLE, REQUIRES TO BE TREATED WITH RETROSPECTIVE OPERATION SO THAT REASONABLE DEDUCTION CAN BE GIVEN TO THE SECTION AS WELL BEFORE THE LD. CI(A), IT WAS FURTHER SUBMITTED THAT T HE ISSUE UNDER CONSIDERATION STANDS DECIDED IN FAVOUR OF THE ASSESSEE IN VIEW OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CAS E OF VIRGIN CREATIONS, WHICH HAS BEEN FOLLOWED IN THE FOLLOWING CASE S: I. PIYUS C MEHTA V. ACIT ITA NO.3121/MUM/2009 DAT ED 11.4.2012 II. ACIT V. M.K.GURUMURTHY IRA NO.717/BANG/2011 DA TED 10.5.2012 III. ITO V. TARU LEADING EDGE P.LTD. ITA NO.3582 /DEL/2011 DATED 22.5.2012 IV. ITO V. SK.MOFIZUL ALI- ITA NO.1153/KOL/20 11 DATED 15.5.2012 4. AFTER CONSIDERING THE AFORESAID SUBMISSIONS, THE LD. CIT(A) DELETED THE SAME BY FOLLOWING THE DECISION OF THE HONBLE CALC UTTA HIGH COURT IN THE CASE OF VERGIN CREATION (SUPRA) WHILE DELETING THE SAID ADDITION, THE LD. CT(A) OBSERVED THAT THE AMENDMENT TO THE PROVISI ONS OF SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010 IS RETR OSPECTIVE FROM 1.4.2005. CONSEQUENTLY, ANY PAYMENT OF TAX DEDUCTED AT SOURCE DURING THE ITA NO.504/RJT/2012. 3 PREVIOUS YEAR RELEVANT TO AND FROM AY 2005-06 CAN BE MADE TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING RET URN OF INCOME U/S 139(1) OF THE ACT. IF PAYMENTS ARE MADE AS AFORESAID, THEN NO DEDUCTION U/S 40(A(IA) OF THE ACT CAN BE MADE. ADMITTEDLY, IN TH E PRESENT CASE THE APPELLANT HAD DEPOSITED THE TAX DEDUCTED AT SOURCE ON O R BEFORE THE DUE DATE FOR LING RETURN OF INCOME U/S 139(1) OF THE ACT AND THEREFORE THE IMPUGNED DISALLOWANCE DESERVES TO BE DELETED AND ACCORD INGLY HE DELETED THE AMOUNT OF RS.46,64,549/-. 5. WE HAVE HEARD BOTH THE SIDES. BEFORE US, THE LD. DR COULD NOT POINT OUT ANY CONTRARY JUDGMENT OF ANY OTHER HIGH C OURT TO NULLIFY THE FINDING AND CONCLUSION SO REACHED BY THE LD. CIT(A) IN THIS CASE.. WE ARE, THEREFORE, OF THE VIEW THAT THE LD. CIT(A) IS LEGAL LY AND FACTUALLY CORRECT IN FOLLOWING THE STATUTORY DECISION OF THE HONBLE CALCUTT A HIGH COURT IN THE CASE OF VERGIN CREATIONS (SUPRA) IN DELETING THE DISAL LOWANCE OF RS. RS.46,64,549/-.MADE BY THE AO U/S 40(A)(IA) OF THE ACT. THE GROUND TAKEN BY THE REVENUE IS THEREFORE REJECTED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( B.R.JAIN) (T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER -/ ORDER DATE 7.12.2012. /RAJKOT SRL ITA NO.504/RJT/2012. 4 / / / / 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-, 2. / RESPONDENT- 3. 5 / CONCERNED CIT. 4. 5- / CIT (A). 5. / , , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.