The ACIT, 5(1), Indore V. M/s Indira Export Pvt. Ltd., Indore

ITA 66/IND/2012

• Counselvise Citation: 6622714 RSA 2012
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Section: 43B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AAACI3883Q I.T.A.NO. 66 /IND/201 2 A.Y. : 2007 - 08 ACIT, M/S.INDIRA EXPORT PVT.LTD., 5(1), INDORE. VS 302, SILVER ARC PLAZA, NEW PALASIA, INDORE APPELLANT RESPONDENT APPELLANT BY : SHRI ARUN DEWAN, SR. DR RESPONDENT BY : NONE DATE OF HEARING : 06 .0 6 .2012 DATE OF PRONOUNCEMENT : 08 . 0 6 .201 2 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 28.11.2011 FOR THE 2007-08, IN TH E MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME-TAX ACT, 1961 . 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE : - -: 2: - 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(A) IS CONTRARY TO THE FACT S AND LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DIRECTING THE DISALLOWA NCE OF RS. 8,77,054/- BY PLACING RELIANCE ON THE DECISI ON OF HON'BLE SUPREME COURT IN THE CASE CITED AS (2009) 319 ITR 306 (S.C.), A DECISION RELATABLE TO THE PROVISIONS ENSHRINED U/S 43B OF THE INCOME-TAX ACT, 1961, FOR EFFECTING THE DISALLOWANCE. 1.1 WHILE HOLDING SO, THE LD. CIT(A) ERRED IN PLAC ING THE RELIANCE ON THE DECISION RENDERED ON THE PECULIAR FACTS OF THAT CASE WHICH WERE NOT IDENTICAL TO THE FACTS IN THE CASE OF THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWAN CE OF RS. 1,50,000/- OUT OF TRAVELLING & CONVEYANCE EXPENSES WHICH WAS DETECTED BY THE ASSESSING OFFICER ON EXAMINATION OF BOOKS OF ACCOUNT. -: 3: - 3 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETION OF THE DISALLOWANCE OF RS. 40,000/- OUT OF BUILDING & MACHINERY REPAIRS EXPENSES WHICH WAS DETECTED BY THE ASSESSING OFFICER IN THE BASIS OF EXAMINATION O F BOOKS OF ACCOUNT. 3. NO BODY APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF SERVICE OF NOTICE. ON THE DATE OF HEARING, THE BENC H DECIDED TO HEAR THE LD. SENIOR DR AND PASS ORDER THEREON. FROM THE RECORD, WE FIND THAT THE ASSESSING OFFICER HAS DECL INED CLAIM OF DEDUCTION BY INVOKING PROVISIONS OF SECTION 36(1)(V A) WITH RESPECT TO EMPLOYEES CONTRIBUTION TO PROVIDENT FUN D. THERE WAS DELAY IN PAYMENT OF EMPLOYEES CONTRIBUTION TO P ROVIDENT FUND, BUT THE SAME WAS PAID BEFORE THE LAST DATE OF FILING RETURN. BY THE IMPUGNED ORDER, THE CIT(A) DELETED T HE DISALLOWANCE BY RELYING ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ALONE EXTRUSIONS LIMITED, 319 ITR 306. IN THIS CASE, THE HON'BLE SUPREME COURT HELD THAT OMIS SION OF SECOND PROVISO TO SECTION 43B AND THE AMENDMENT OF FIRST PROVISO BY FINANCE ACT, 2003, BRINGING ABOUT UNIFOR MITY IN -: 4: - 4 PAYMENT OF TAX, DUTY AND CESS AND FEE ON ONE HAND A ND THE CONTRIBUTION TO EMPLOYEES WELFARE FUNDS, ON THE OT HER HAND, ARE CURATIVE IN NATURE AND, THUS EFFECTIVE RETROSPE CTIVELY W.E.F. 1 ST APRIL, 1988, I.E. THE DATE OF INSERTION OF FIRST P ROVISO. IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT, WE DO NOT FIND ANY INFIRMITY IN DELETION OF DISALLOWANCE OF DELAYED PA YMENT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUND. 4. THE ASSESSING OFFICER HAS MADE DISALLOWANCE OF RS. 1.50 LAKHS OUT OF THE TRAVELLING AND CONVEYANCE EXP ENSES. BY THE IMPUGNED ORDER, THE LD. CIT(A) DELETED THE DISA LLOWANCE AFTER HAVING THE FOLLOWING OBSERVATIONS :- GROUND NO. 2 IS DIRECTED AGAINST DISALLOWANCE OF R S. 1.50 LAKHS, OUT OF TRAVELLING AND CONVEYANCE EXPENSES CL AIMED AT RS. 15,40,089/-. THE ASSESSING OFFICER, HAS MADE SUCH DISALLOWANCE WITH THE BRIEF OBSERVATION THAT THAT CLAIM CANNOT BE TOTALLY INCIDENTAL TO BUSINESS AND THERE IS NO FURTHER FINDINGS ON THE ISSUE. THE DISALLOWANCE SO MADE WOULD FALL IN THE NATURE OF ARBITRARY DISALLOWANCE WITHOUT THERE BEING PROPER FINDINGS TO SUPPORT SUCH DISALLO WANCE. HENCE SUCH DISALLOWANCE IS NOT FOUND TO BE SUSTAINA BLE FOR -: 5: - 5 WANT OF PROPER REASONING AND IS ACCORDINGLY DIRECTE D TO BE DELETED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT NO JUSTIFICATION MUCH LESS A COGEN T JUSTIFICATION HAS BEEN GIVEN BY THE ASSESSING OFFIC ER FOR MAKING THE AD HOC DISALLOWANCE. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY FOR DELETING THE SAME BY THE LD.CIT(A ). 6. THE ASSESSING OFFICER HAS DISALLOWED RS. 40,000/- O UT OF BUILDING AND MACHINERY REPAIR EXPENSES. BY THE I MPUGNED ORDER, THE LD. CIT(A) DELETED THE SAME AFTER HAVING THE FOLLOWING OBSERVATIONS :- THIRD GROUND IS DIRECTED AGAINST DISALLOWANCE OF RS . 40,000/- OUT OF REPAIRS AND MAINTENANCE AND OTHER EXPENSES CLAIMED AT RS. 2,15,885/-. SUCH DISALLOWANCE IS ALSO MADE BROADLY IN THE SIMILAR FASHION AS NOTED IN RESPECT OF TRAVELLING AND CONVEYANCE EXPENSE. HENCE FOR THE REASONS RECORDED ABOVE, SUCH DISALLOWANCE IS ALSO NOT FOUND TO BE SUSTAINABLE AND IS ACCORDINGLY DELETED. -: 6: - 6 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT NO COGENT REASON WAS ASSIGNED BY T HE ASSESSING OFFICER FOR DISALLOWING THE REASONABLE BU SINESS EXPENDITURE INCURRED ON REPAIR AND MAINTENANCE. AC CORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR DELETING THE DISALLOWANCE. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 8 TH JUNE, 2012. SD/ - SD/ - (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 8 TH JUNE, 2012. CPU* 786