The ITO, Ward-9(2), Ahmedabad V. Shri Bhaveshbhai Nathabhai Patel, Ahmedabad

ITA 67/AHD/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2084 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-05-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA SR D R
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI, PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.67/AHD/2013 ASSESSMENT YEAR :2009-10 I.T.O., WARD-9(2), A-2- 2, 2 ND FLOOR, PRATAYAKASH KAR BHAVAN, NR. SAHAJANAND COLLEGE, PANJARAPOLE, AMBAWADI AHMEDABAD -380025 V/S . BHAVESHBHAI NATHABHAI PATEL PROP OF BAHUCHAR CORPORATION, 24, SHIVDARSHAN SOCIETY, NR. NAVYUG SCHOOL, NARODA, AHMEDABAD 380025 [ PAN NO.AERPP 0095 D ] PAN NO. / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI Y.P. VERMA, SR-DR /BY RESPONDENT NONE /DATE OF HEARING 01-05-2013 /DATE OF PRONOUNCEMENT 10-05-2013 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORD ER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD (CIT(A) FOR SHORT) DATED 03-10-2012 FOR THE ASSESSMENT YEAR (AY) 2009-10. THE REVENUE H AS RAISED THE FOLLOWING EFFECTIVE GROUNDS:- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDIT ION OF RS.14,40,030/- MADE ON ACCOUNT OF WAGES & CARTAGE EXPENSES US. 40( A)(IA) OF THE ACT. 2) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE A DDITION UNDER PROVISION ITA NO.67/AHD/2013 A.Y. 2009-10 ITO WD-9(2) ABD V. BHAVESHBHAI N PATEL PAGE 2 OF SECTION 40(A)(IA) OF THE ACT, WOULD BE ATTRACTED ONLY IN RESPECT OF THE PAYABLE AMOUNT OF EXPENDITURE AS ON 331 ST MARCH OF THE RELEVANT PREVIOUS YEAR. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEVER , NOTICE OF HEARING IS DULY SERVED. THEREFORE, THIS APPEAL IS TAKEN UP FOR HEARING IN THE ABSENCE OF ASSESSEE. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND CIVIL LABOUR WORK OF G OVERNMENT AND SEMI- GOVERNMENT OFFICES. THE CASE OF ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S. 143(3) OF THE IN COME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED T HEREBY THE ASSESSING OFFICER MADE ADDITION U/S. 40(A)(IA) OF THE ACT, CAPITAL GA IN AND ALSO DISALLOWED EXPENSES TOWARDS CONSTRUCTION PENALTY. THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF ASS ESSEE PARTLY ALLOWED THEREBY THE DISALLOWANCE OF RS.15,49,138/- MADE U/S . 40(A)(IA) OF THE ACT WAS REDUCED TO RS.1,09,100/- AND ALSO DELETED THE DISAL LOWANCE OF RS.2,30,883/- MADE ON ACCOUNT OF CONSTRUCTION PENALTY. 4. WE HAVE HEARD LD. SR-DR OF THE REVENUE AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. THE ONLY EFFECTIVE GROUND AGAI NST THE DELETION MADE U/S. 40(A)(IA) OF THE ACT. WE FIND THAT LD. CIT(A) HAS D ELETED THE DISALLOWANCE RELYING ON THE DECISION OF HONBLE SPECIAL BENCH RE NDERED IN THE CASE OF M/S MERILYIN SHIPPING AND TRANSPORTS V. ACIT IN I TA NO. 477/VIS/2008 DATED 29- 03-2012 IN 136 ITD 23 (VIS) AND LD. CIT(A) AND HAS ACCEPTED THE CONTENTION OF ASSESSEE THAT IT IS ONLY THE AMOUNT OF SUCH EXPE NSES WHICH REMAINED PAYABLE AS ON THE LAST DATE OF THE PREVIOUS YEAR IN TERMS OF RATIO LAID DOWN CITED IN VARIOUS CASE LAWS IS LIABLE TO BE DISALLOW ED. SINCE THE DECISION OF THE TRIBUNAL RENDERED IN THE CASE OF MERILYIN SHIPPING AND TRANSPORTS (SUPRA) HAS BEEN RESERVED BY THE HONBLE JURISDICTIONAL HIGH CO URT IN A RECENT CASE. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH IS MATTER BE REMITTED BACK ITA NO.67/AHD/2013 A.Y. 2009-10 ITO WD-9(2) ABD V. BHAVESHBHAI N PATEL PAGE 3 TO THE FILE OF LD. CIT(A) TO DECIDE AFRESH IN THE L IGHT OF LATEST POSITION OF LAW AS LAID BY THE HONBLE JURISDICTIONAL HIGH COURT OF AF TER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THIS GROUND OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF ABOVE DIRECTION. 5. IN THE RESULT, REVENUES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (PRAMAD.KUMAR) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 10/05/2013 *+, - ../ ../ ../ ../ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ','.2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. /56 ...2, .2 , *+, / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ , /TRUE COPY/ =/* '> .2 , *+, - STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07/05 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 07/05 4) DATE OF CORRECTION 09/05 5) DATE OF FURTHER CORRECTION 10/05, 10/05 6) DATE OF INITIAL SIGN BY MEMBERS 10/05 7) ORDER UPLOADED ON 10/05 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 10/05