M/S DOON VALLEY PUMPS INDIA PVT. LTD., JAIPUR V. INCOME TAX OFFICER, WARD-3-2, JAIPUR

ITA 668/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2217 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 22-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA JHA CIT DHK
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 244A; 201(1); 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 668/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 M/S DOON VALLEY PUMPS INDIA PVT. LTD., 144, BHASKER MARG, BANI PARK, JAIPUR. CUKE VS. I.T.O., WARD-3(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACD 6411 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA JHA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 05/01/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 25/07/2017 FOR THE A.Y. 2012-13, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THE IMPUGNED ADDITION AND DISALLOWANCES MADE IN THE ORDER U/S 143(3) OF THE ACT DATED 13.03.2015 ARE BAD IN L AW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VAR IOUS OTHER REASONS AND HENCE, THE SAME KINDLY BE DELETED. ITA 668/JP/2017_ M/S DOON VALEY PUMPS P LTD. VS ITO 2 2. RS.13,24,082/-: THE ID. CIT(A) ERRED IN LAW AS W ELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE U/ S 40(A)(IA) OF THE ACT OF RS. 13,24,082/- ON ACCOUNT OF NON DEDUCT ION OF TDS. THE DISALLOWANCE SO MADE & CONFIRMED BY THE LD. CIT (A), IS CONTRARY TO THE PROVISIONS OF LAW AND FACTS HENCE, KINDLY BE DELETED IN FULL. 3. THE ID. AO FURTHER ERRED IN LAW AS WELL AS ON TH E FACTS OF THE CASE IN CHARGING INTEREST U/S 234B, 234C & 234D OF THE ACT AND AS ALSO IN WITHDRAWING OF INTEREST U/S 244A OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARGING AND WITHDRAWAL OF ANY SUCH INTEREST. THE INTEREST SO CHARGED/WITHD RAWN, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN FULL. 2. THE ASSESSEE COMPANY IS ENGAGED IN PURCHASE AND S ALE OF IMMOVABLE PROPERTIES I.E. LAND AND BUILDING. RETURN DECLARING TOTAL INCOME OF RS. 2,02,110/- WAS FILED ON 28/09/2012. TH E ASSESSEE HAS MADE PAYMENTS TO VARIOUS PARTIES WITHOUT DEDUCTING T DS. THE DETAILS ARE AS UNDER: M/S BHAGCHAND HUF = RS. 45,885/- M/S DHARMENDRA KUMAR HUF = RS. 1,83,541/- M/S GURUMUKH DAS HUF = RS. 45,885/- M/S MANOJ KUMAR HUF = RS. 1,83,541/- M/S OM PRAKASH CHELANI HUF = RS. 1,83,541/- M/S PRADEEP CHELANI HUF = RS. 1,02,907/- M/S KAMAL CHELANI = RS. 87,872/- SHRI KAWITA CHELANI = RS. 1,66,442/- M/S VIJAY LAXMI COMMISSION AG. = RS. 1,44,468/- SHRI BHAWANA RAMNANNI = RS. 30,000/- SHRI JHAMATMAL RAMNANNI = RS. 30,000/- SHRI RAJKUMAR RAMNANNI = RS. 45,000/- SHRI TULSIDAS RAMNANNI = RS. 30,000/- SHRI JIWATRAM RAMNANI = RS. 45,000/- TOTAL = RS. 13,24,082 /- ITA 668/JP/2017_ M/S DOON VALEY PUMPS P LTD. VS ITO 3 THE ASSESSING OFFICER MADE ADDITION BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 (IN SH ORT THE ACT) ON RS. 13,24,082/-. 3. THE LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER BY HOLDING AS UNDER: 3.1.2 DETERMINATION : (I) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE A PPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT HAS PAID INTEREST OF R S. 13,24,082/- TO A NUMBER OF PERSONS AS DETAILED IN THE ASSESSMENT ORD ER WITHOUT DEDUCTING TAX AT SOURCE. THE AO HAS INVOKED THE PRO VISIONS OF SECTION 40(A) (IA) R.W.S 194A OF THE ACT AND HAS DISALLOWED THE SUM OF RS. 13,24,082/- THEREOF. (II) IT WAS THE CONTENTION OF THE APPELLANT THAT TH E AMENDMENT MADE TO THE PROVISIONS OF SECTION 40(A) (IA) OF THE ACT BY THE FINANCE ACT, 2012 WAS HELD TO BE RETROSPECTIVE IN NATURE BY VARIOUS J UDICIAL AUTHORITIES AS THE SAME BEING DECLARATORY AND CURATIVE. IT WAS FUR THER STATED THAT THE AO IN THE ASSESSMENT ORDER HAS STATED THAT IN THE I NSTANT CASE UNDER CONSIDERATION, THE ASSESSEE WAS NOT TO BE TREATED A S ASSESSEE IN DEFAULT IN VIEW OF THE FIRST PROVISO TO SECTION 20 1(1) OF THE ACT. HERE IT MAY BE MENTIONED THAT AS PER THE PROVISO TO SECTION 201 INSERTED W.E.F 01.07.2012, THE APPELLANT WOULD NOT BE TREATED AS A SSESSEE IN DEFAULT IF THE CONCERNED NBFC: (I) HAS FURNISHED ITS RETURN OF INCOME U/S 139; (II) HAS TAKEN INTO ACCOUNT SUCH SUMS FOR COMPUTING INCOME IN SUCH RETURN OF INCOME; AND ITA 668/JP/2017_ M/S DOON VALEY PUMPS P LTD. VS ITO 4 (III) HAS PAID THE TAX DUE ON THE INCOME DECLARED B Y IT IN SUCH RETURN OF INCOME AND THE PERSON FURNISHES A CERTIFICATE TO TH IS EFFECT FROM AN ACCOUNTANT IN SUCH FORM AS MAY BE PRESCRIBED (FORM N. 26A) (IV) IT IS PERTINENT TO MENTION THAT THE APPELLANT HAS N OT FILED ANY CERTIFICATE FROM THE CONCERNED PERSONS TO WHOM INTEREST HAS BEE N PAID WITHOUT DEDUCTING TAX AT SOURCE IN FORM NO. 26A DULY ISSUED BY A CHARTERED ACCOUNTANT AS STIPULATED IN 1 ST PROVISO TO SECTION 201 OF THE ACT AND THUS, NO BENEFIT COULD BE ALLOWED TO THE APPELLANT ON THE BASIS OF THE ABOVE SECTION. (V) THEREFORE, LOOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO WAS JUSTIFIED IN INVOK ING THE PROVISIONS OF SECTION 40(A) (IA) OF THE ACT AND THUS THE DISALLOW ANCE OF RS. 13,24,082/- MADE BY THE AO IS HEREBY UPHELD. 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS SUBMITTED THAT AMENDMENTS IN PROVISO TO SECTION 201 (1) OF THE ACT WAS MADE BY THE FINANCE ACT, 2012 W.E.F. 01/07/2012 HAS BEEN HELD RETROSPECTIVE BY VARIOUS JUDICIAL AUTHORITIES. FURT HER THE ASSESSING OFFICER HIMSELF HAS STATED THAT THE ASSESSEE WAS NOT TREATED AS ASSESSEE IN DEFAULT IN VIEW OF THE PROVISO TO SECTIO N 201(1) OF THE ACT. THIS PROVISO TO SECTION 201 INSERTED W.E.F. 01/07/201 2 WHEREIN IT IS STATED THAT THE APPELLANT WOULD NOT BE TREATED AS AS SESSEE IN DEFAULT IF THE CONCERNED NBFC HAS FURNISHED ITS RETURN OF INCO ME U/S 139 OF THE ACT AND HAS TAKEN INTO ACCOUNT SUCH SUMS FOR COMPUT ING INCOME IN RETURN OF INCOME AND THE PERSONS FURNISHES A CERTIF ICATE TO THIS EFFECT ITA 668/JP/2017_ M/S DOON VALEY PUMPS P LTD. VS ITO 5 FROM AN ACCOUNTANT IN SUCH FORM AS PRESCRIBED IN FO RM NO. 26A. THE LD AR HAS SUBMITTED THAT THESE CERTIFICATE AND FORM NO . 26A ARE FILED IN THE PAPER BOOK AS ADDITIONAL EVIDENCE AND FOR WHICH, THE ASSESSEE HAS PRAYED TO ADMIT THESE ADDITIONAL EVIDENCES IN VIEW OF THE DECISION OF THE HONBLE DELHI AND CALCUTTA HIGH COURT IN THE CA SE OF CIT VS TEXT HUNDRED INDIA (P) LTD. (2011) 239 CTR (DEL) 263 AND ITO VS B.N. BHATTACHARYA (1978) 112 ITR 423 (CAL.) RESPECTIVELY. 5. THE LD SR.DR HAS RELIED ON THE ORDERS OF THE AUTH ORITIES BELOW. 6. AFTER CONSIDERING BOTH THE SIDES ON THIS ISSUE A ND CONSIDERING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HI NDUSTAN COCA COLA BEVERAGES (P) LTD. VS. CIT (2007) 211 CTR (SC) 545 AN D OTHER VARIOUS OTHER JUDICIAL PRONOUNCEMENTS, THE BENCH IS OF THE VIEW THAT THIS MATTER NEEDS TO BE RESTORED BACK TO THE FILE OF THE ASSESS ING OFFICER TO VERIFY THE FULFILLMENT OF TECHNICAL REQUIREMENT OF FURNISH ING CERTIFICATES OF ACCOUNTANT AND ALSO TO VERIFY THE FACT THAT RETURN OF INCOME HAVE BEEN FILED BY PAYEE AND PAID TAXES DUE THEREON IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES (P) LTD. VS. CIT (SUPRA). KEEPING THESE FACTS IN VIE WS, THE ISSUE IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED DE NOVO AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA 668/JP/2017_ M/S DOON VALEY PUMPS P LTD. VS ITO 6 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 05/01/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 TH JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S DOON VALLEY PUMPS INDIA PVT. LTD. , JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-3(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 668/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR