ARUNA RANI, Jaipur V. ITO, Jaipur

ITA 613/JPR/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5623 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA CIT DHK
• Keywords: Difference of opinion
• Section: 40A(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 613/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. SMT. ARUNA RANI, PROP. M/S. AGARWAL MARBLE IMPEX, 2-GHA-9, JAWAHAR NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAZPR 1621 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI MUKESH VERMA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10.02.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 14 /02/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. SINCE THERE WAS A DIFFERENCE OF OPINION BETWEEN TH E LEARNED MEMBERS, CONSTITUTING A DIVISION BENCH OF I.T.A.T., JAIPUR, THE HONBLE PRESIDENT, I.T.A.T. NOMINATED SHRI BHAVNESH SAINI, JUDICIAL MEMBER AS T HIRD MEMBER. THE HONBLE THIRD MEMBER VIDE ORDER DATED 02.02.2017 CONCURRED WITH THE FINDINGS OF THE HONBLE ACCOUNTANT MEMBER AND HELD AS UNDER :- 2 ITA NO. 613/JP/2015 SMT. ARUNA RANI, JAIPUR. 5. CONSIDERING THE ABOVE FACTS IN THE LIGHT OF TH E ABOVE DECISION, IT IS CLEAR THAT THE NATURE OF BUSINESS OF THE ASSESSE E IS SUCH THAT ASSESSEE IS REQUIRED CONTINUOUS SUPPLY OF ELECTRICI TY FOR WHICH ASSESSEE SHALL HAVE TO MAKE PAYMENT TO JODHPUR VIDYUT VITARA N NIGAM LTD. FOR SMOOTH FUNCTIONING OF THE BUSINESS ACTIVITY OF THE ASSESSEE. IN CASE NO PAYMENT IS MADE IN CASH TO THE ABOVE NIGAM, THEN TH E ELECTRICITY WOULD HAVE BEEN DISCONTINUED. THEREFORE, HAVING REG ARD TO THE NATURE OF BUSINESS ACTIVITY OF THE ASSESSEE AND THAT ASSES SEE DID NOT HAVE BANKING FACILITY WHERE PAYMENT OF ELECTRICITY BILL IS TO BE MADE AND CONSIDERING THE BUSINESS EXPEDIENCY AND OTHER FACTO RS, I AM OF THE VIEW THE CASE OF THE ASSESSEE WOULD CLEARLY FALL IN EXCEPTION TO RULE AND NO DISALLOWANCE SHOULD BE MADE UNDER SECTION 40 A(3) OF INCOME TAX ACT. THE LEARNED ACCOUNTANT MEMBER HAS, THEREF ORE, RIGHTLY FOLLOWED THE DECISION OF THE COORDINATE BENCH ON ID ENTICAL ISSUE IN THE CASE OF SHRI RAHUL PANCHOLI (SUPRA) IN WHICH ON IDE NTICAL FACTS AND ISSUE, THE DEPARTMENTAL APPEAL WAS DISMISSED. INTER ESTINGLY, THE LEARNED JUDICIAL MEMBER WHO HAS DISMISSED APPEAL OF THE ASSESSEE ON THE SAME SET OF FACTS, WAS THE PARTY TO THE ORDER I N THE CASE OF SHRI RAHUL PANCHOLI (SUPRA). THE LEARNED ACCOUNTANT MEMB ER WAS, THEREFORE, RIGHT IN HIS APPROACH IN ALLOWING THE AP PEAL O THE ASSESSEE BY FOLLOWING THE ORDER OF THE COORDINATE BENCH RATH ER OF THE SAME BENCH. THE LEARNED JUDICIAL MEMBER DID NOT DISCUSS IN DETAIL AS TO WHY HE HAS NOT FOLLOWED THE ORDER IN THE CASE O SHRI RA HUL PANCHOLI (SUPRA) TO WHICH HE HIMSELF IS A SIGNATORY. THE LEARNED JUD ICIAL MEMBER DISMISSED THE APPEAL OF THE ASSESSEE ON THE SOLE RE ASON THAT SINCE THE ASSESSEE HAS TO MAKE THE PAYMENT OF ELECTRICITY BIL L REGULARLY, IT SHOULD HAVE MADE SUCH ARRANGEMENT WHICH IS IN ACCORDANCE W ITH THE PROVISIONS OF SECTION 40A(3) OF THE INCOME TAX ACT. I MAY RESPECTFULLY NOTE THAT TRIBUNAL IS CREATED BY LAW AND HAVE TO FO LLOW THE LAW PASSED BY LEGISLATOR. IF SUCH VIEW IS CONSIDERED, IT WOULD MAKE PROVISO TO SECTION 40A(3) REDUNDANT. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, GIVEN AN UNDERTAKING DURING THE COURSE OF HEARING T HAT ASSESSEE, IN FUTURE HAS MADE ALTERNATE ARRANGEMENT TO MAKE PAYME NT FOR ELECTRICITY BILL AS PER PROVISIONS OF LAW SO THAT THERE IS NO V IOLATION O PROVISIONS OF SECTION 40A(3) OF INCOME TAX ACT. 6. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES IN THE LIGHT OF THE ABOVE DISCUSSION, I AGREE WITH THE VIE W OF THE LEARNED ACCOUNTANT MEMBER IN ALLOWING THE APPEAL OF THE ASS ESSEE HOLDING THAT NO DISALLOWANCE3 SHOULD BE MADE UNDER SECTION 40A(3 ) OF THE ACT, IN FACTS AND CIRCUMSTANCES OF THE CASE. I, THEREFORE, AGREE WITH THE VIEW OF LEARNED ACCOUNTANT MEMBER. LET THE FILE BE PLACE D BEFORE THE REGULAR DIVISION BENCH FOR PASSING A CONSEQUENTIAL ORDER. 3 ITA NO. 613/JP/2015 SMT. ARUNA RANI, JAIPUR. 2. THEREFORE, IN ACCORDANCE WITH MAJORITY VIEW, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 .02.2 017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 14 /02/2017. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. ARUNA RANI, JAIPUR. 2. THE RESPONDENT THE ITO WARD 6(1), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 613/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR