ITO 22(2)1, NAVI MUMBAI V. JAI ROADWAYS, MUMBAI

ITA 57/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8419 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2006-2007
• Appeal Filed On: 05-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V KRISHNAMOORTY
• Assessee Lawyers: DEEPAK S SUKHIJA

Judgement Text

0IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (J.M.) AND SHRI N.K. BILLAIYA (A.M.) ITA NO. 57/MUM /2011 ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER 22(2)(1), ROOM NO. 419, 4 TH FLOOR, TOWER NO. 6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI 400 705. VS. M/S JAI ROADWAYS, OPP. H.P. REFINERY, GAVANPADA, CHEMBUR, MUMBAI 400074. PAN AAAFJ0986A (APPELLANT) (RESPONDENT) REVENUE BY: SHRI V. KRISHNAMOORTY ASSESSEE BY : SHRI DEEPAK S. SUKHIJA DATE OF HEARING 07-11-2012 DATE OF PRONOUNCEMENT 09-11-2012 O R D E R PER DINESH KUMAR AGARWAL, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER DTD. 27-09-2010 PASSED BY THE LD. CIT(A) 33, MUMB AI FOR THE A.Y. 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE FIRM IS ENGAGED IN THE BUSINESS OF TRANSPORT WITH ITS OWN T ANKERS AND ASSOCIATED TANKERS. DURING THE COURSE OF ASSESSMENT PROCEEDIN G IT WAS, INTER ALIA, OBSERVED BY THE A.O. THAT THE ASSESSEE HAS PAID TRA NSPORT EXPENSES TO OTHER PARTIES RS. 1,58,68,536/-. THE ASSESSE WAS A SKED TO SUBMIT THE ITA NO. 57/MUM/2011 2 DETAILS OF TDS DEDUCTED, DATE OF PAYMENT MADE TO GO VERNMENT ACCOUNT, WORKING OF DISALLOWANCE U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 (THE ACT) AND COPY OF TDS RETURN FILED. THE A.O. FROM T HE DETAILS FILED BY THE ASSESSEE OBSERVED THAT THE ASSESSEE HAS NOT DEPOSIT ED TDS ON TRANSPORT CHARGES OF RS. 84,85,701/- WITHIN THE TIME ALLOWED UNDER THE ACT AND ACCORDINGLY HE DISALLOWED THE SAME U/S 40(A)(IA) OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL THE LD . CIT(A) WHILE OBSERVING THAT THE ASSESSEE HAS MADE THE PAYMENT OF TDS BEFORE THE DUE DATE OF FILING OF THE RETURN AS PER AMENDMENT MADE U/S 40(A)(IA) OF THE ACT, DELETED THE ADDITION MADE BY THE A.O. WITH THE DIRECTION THAT IF THE CREDIT FOR THIS PAYMENT HAS BEEN GIVEN BY THE A.O. IN SUBSEQUENT ASSESSMENT YEAR I.E. 2007-08, THE SAME MAY BE WITHD RAWN. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US TAKING FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN INTERPRETING THE AMENDMENTS MADE TO THE SECTION 40(A)(IA) W.E.F. 1.4.2005 WITHOUT APPRECIATING THE FACT THAT THE AMENDMENTS IS RELATED TO THE PAYMENTS MADE DURING THE MONTH OF MA RCH ONLY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN GIVING THE RELIEF OF RS. 84,85,701/ -, WITHOUT ASCERTAINING THE FACT AS TO WHETHER THE ASSESSEE HAS CLAIMED THE DEDUCTION IN THE SUBSEQUENT ASSESSMENT YEAR ON THE BASIS OF ACTUAL P AYMENT AS PER CLAUSE A OF SECTION 40(A)(IA). 4. AT THE TIME OF HEARING THE LD. D.R. SUPPORTS THE ORDER OF THE A.O. ITA NO. 57/MUM/2011 3 5. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESS EE WHILE RELYING ON THE ORDER OF THE LD. CIT(A) SUBMITS THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESS EES OWN CASE IN ITA NO. 5342/MUM/2011 FOR A.Y. 2007-08 DTD. 8-6-2012 WH EREIN THE TRIBUNAL FOLLOWING THE DECISION OF THE HONBLE CALC UTTA HIGH COURT IN THE CASE OF VIRGIN CREATIONS IN ITAT NO. 302 OF 2011 DT D. 23-11-2011 AND THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL I N THE CASE OF SHRI PIYUSH C. MEHTA VS. ACIT IN ITA NO. 1321/M/2009, FO R A.Y. 2005-06 ORDER DTD. 11-4-2012 HAS DELETED THE DISALLOWANCE M ADE BY THE A.O. HE ALSO PLACED ON RECORD THE COPY OF THE SAID DECISION . HE, THEREFORE, SUBMITS THAT THE ORDER PASSED BY THE LD. CIT(A) IN DELETING THE DISALLOWANCE BE UPHELD. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUT E THAT THE ASSESSEE HAS MADE THE PAYMENT OF TDS BEFORE THE DUE DATE OF FILI NG OF THE RETURN U/S 139(1) OF THE ACT. 7. IN CIT VS. VIRGIN CREATIONS IN ITAT NO. 302 OF 2 011, GA 3200/2011 JUDGMENT DTD. 23-11-2011 IT HAS BEEN HELD THAT THE AMENDMENT MADE U/S 40(A)(IA) REQUIRES TO BE TREATED WITH RETROSPEC TIVE OPERATION. 8. THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA) AND IN THE CASE OF SHRI PIYUSH C. MEHTA (SUPRA) AFTER RELYING ON THE ABOVE DECISION DELETED THE ITA NO. 57/MUM/2011 4 SIMILAR DISALLOWANCE ON THE GROUND THAT THE ASSESSE E HAS DEPOSITED TAX AT SOURCE ON OR BEFORE THE DUE DATE OF FILING OF TH E RETURN U/S 139(1) OF THE ACT. 9. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS AND T HE CONSISTENT VIEW OF THE TRIBUNAL WE DECLINE TO INTERFERE WITH THE OR DER PASSED BY THE LD. CIT(A) IN DELETING THE DISALLOWANCE MADE BY THE A.O . THE GROUNDS TAKEN BY THE REVENUE ARE, THEREFORE, REJECTED. 10. IN THE RESULT, REVENUES APPEAL STANDS DISMISSE D. ORDER PRONOUNCED ON 09-11-2012 SD/- (N.K. BILLAIYA ) ACCOUNTANT MEMBER SD/- (DINESH KUMAR AGARWAL) JUDICIAL MEMBER MUMBAI, DATED :09-11-2012 RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 33, MUMBA I 4. COMMISSIONER OF INCOME TAX 22, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI