SHRI TULSI BUILDCON, Aurangabad V. ACIT, Aurangabad

ITA 704/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66873 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER, AND SHRI R.S.PADVEKAR, JUDICIAL MEMBER. ITA.NO.704/PN/2012 (ASSTT. YEAR : 2008-09) SHRI TULSI BUILDCON, SHOP NO.C-1, C-2, SAMYAK ARCADE, CANNAUGHT, CIDCO, AURANGABAD. .. APPELLANT PAN: ABIFS5311H VS. ACIT, CIRCLE-2, AURANGABAD. .. RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO DEPARTMENT BY : SHRI RAJESH DAMOR DATE OF HEARING : 25.04.2013 DATE OF PRONOUNCEMENT : 29.04.2013 ORDER PER R.S.PADVEKAR, JM : IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD. CIT(A), AURANGABAD, DATED 14.02.2012 FOR THE A.Y. 2008-09. THE ASSESSEE HAS TAKEN THE FOLLOWING GROU NDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HON OURABLE CIT(A) AURANGABAD HAS ERRED IN CONFIRMING THE ADDIT ION MADE BY THE ASSESSING OFFICER TO THE TUNE OF RS.44,95,31 2/- U/S.43B OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HON OURABLE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER WITHOUT ANY CORROBORATIVE EVIDENC E THAT THE ASSESSEE DID NOT HANDED OVER THE CHEQUE TO THE BANK ER BEFORE THE STATUTORY DATE OF PAYMENT U/S.43B. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HON OURABLE CIT(A) DID NOT RELIED ON THE FACTS THAT 30 TH SEPT. WAS HALF YEARLY CLOSING DAY OF THE BANK AND 2 ND OCT. WAS BANK HOLIDAY BEING GANDHI JAYANTI AND HENCE THE CHEQUE WAS CLEARED ON 3 RD OCTOBER. IN THIS SITUATION, THE CHEQUE WAS CLEARED BY 2 ASSESSEES BANKER AXIS BANK ON 3 RD OCTOBER. CONSEQUENTLY THE SBI HAS PUT A STAMP OF CLEARING ON 4 TH OCTOBER. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) DID NOT REALIZED THAT THE ASSESSEE WAS PREVENTED BY SUFFICI ENT CAUSE THAT THE PAYMENT WAS ACTUALLY REALISED ON 4 TH OCT. 2. THE SOLITARY ISSUE IS IN RESPECT OF THE DISALLOW ANCE MADE U/S.43B OF THE ACT. THE FACTS WHICH ARE REVEALED F ROM THE RECORD ARE AS UNDER. THE ASSESSEE IS A PARTNERSHIP FIRM A ND ENGAGED IN THE BUSINESS OF READYMADE CONCRETE AND CONSTRUCTION WORK. ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT RS.11,67,400/- FOR THE A.Y. 2008-09. IT WAS NOTICE D BY THE ASSESSING OFFICER THAT ASSESSEE HAS SHOWN THE PROVI SION FOR VAT PAYABLE AND NET AMOUNT OF THE VAT LIABILITY WAS TO THE EXTENT OF RS.44,95,312/- AS PER THE BALANCE SHEET PREPARED BY THE ASSESSEE AS ON 31.03.2008. AS OBSERVED BY THE ASSESSING OFF ICER, AS PER THE PROVISIONS OF SECTION 43B OF THE ACT, ANY TAX LIABI LITY PAYABLE AS ON 31.03.2008 SHOULD BE PAID ON OR BEFORE THE DUE DATE OF FILING OF THE RETURN AND THE SAID DATE IN THE CASE OF THE ASSESSE E WAS 30.09.2008. BUT ACTUALLY AS PER THE RECORD, MORE P ARTICULARLY ON EXAMINING THE COPY OF THE CHALLAN, THE PAYMENTS ARE RECEIVED BY THE BANK ON 04.10.2008. THE ASSESSEE STATED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEE MADE THE PAYMENT BY CHEQU E ON 29.09.2008 BUT DUE TO HALF YEARLY CLOSING OBSERVED BY THE BANK ON 30.09.2008, THE CHEQUE WAS CLEARED ON 03.10.2008. ASSESSEE ALSO RELIED ON THE DECISION IN THE CASE OF CIT VS. OGALE GLASS WORKS LTD. (1954) 25 ITR 529 (SC). THE ASSESSING OFFICER OBSE RVED THAT THE ASSESSEE SHOULD HAVE PAID THE AMOUNT ON OR BEFORE T HE DUE DATE OF FILING OF THE RETURN, I.E., ON 30.09.2008. THE ASS ESSING OFFICER, THEREFORE, ADDED BACK THE AMOUNT OF RS.44,95,312/-. THE ASSESSEE CHALLENGED THE SAID ADDITION BEFORE THE LD. CIT(A), BUT WITHOUT SUCCESS. THE LD. CIT(A) HAS OBSERVED THAT THE ASSE SSEE COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM THAT IN RESPECT OF THE VAT PAYMENT, CHEQUES WERE DEPOSITED INTO THE BANK ON OR BEFORE 30.09.2008. NOW THE ASSESSEE IS IN AP PEAL BEFORE US ON THE DISALLOWANCE CONFIRMED BY THE LD. CIT(A). 3 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . THE LD. COUNSEL AT THE FIRST INSTANCE SUBMITTED THAT THE AS SESSEE HAS FILED AN APPLICATION WITH PRAYER TO ADMIT THE ADDITIONAL EVIDENCE WHICH IS IN THE FORM OF CERTIFICATE ISSUED BY THE STATE BANK OF INDIA, DATED 20.04.2013. HE PLEADED THAT AS THE SAID CERTIFICAT E IS VERY CRUCIAL TO DECIDE THE ISSUE AND MOREOVER IT IS ISSUED BY TH E NATIONAL BANK, NO PREJUDICE WOULD BE CAUSED TO THE REVENUE. WE HA VE ALSO HEARD THE LD. DR. AFTER GIVING OUR ANXIOUS CONSIDERATION TO THE ORDERS OF BOTH THE AUTHORITIES BELOW, WE FIND THAT BOTH THE P ARTIES HAVE OBSERVED THAT ASSESSEE COULD NOT PRODUCE ANY EVIDEN CE TO SUPPORT THE CONTENTION THAT IN RESPECT OF THE PAYMENT OF VA T, THE CHEQUES WERE HANDED OVER/DEPOSITED IN THE BANKS ON 29.09.20 08 BUT THOSE CHEQUES WERE CLEARED ON 03.10.2008. IN OUR OPINION , TRIBUNAL IS THE LAST FACT FINDING AUTHORITY AND IN THE INTEREST OF JUSTICE, ASSESSEE NEEDS TO BE GIVEN OPPORTUNITY TO FILE THE SAID CERT IFICATE WHICH GOES TO THE ROOT OF THE CONTROVERSY. WE ACCORDINGLY ADM IT THE EVIDENCE FILED BY THE ASSESSEE. 4. IT IS SEEN THAT THE STATE BANK OF INDIA, AURANGA BAD BRANCH, HAS ISSUED A CERTIFICATE DATED 20.04.2013 CERTIFYIN G THAT THE ASSESSEE HAS SUBMITTED MVAT CHALLAN FOR RS.8,92,919 /- VIDE CHEQUE NO.137307 DATED 29.09.2008 WHICH WAS CLEARED ON 03.10.2008. SIMILARLY, ANOTHER CERTIFICATE IS ALSO ISSUED BY THE SAID BANK STATING THAT CHEQUE OF RS.36,09,178/- BEARING NO.137309 DATED 29.09.2008 WAS RECEIVED BY THE BANK ON 29.09. 2008 WHICH WAS CLEARED ON 03.10.2008. FROM THE ABOVE CERTIFIC ATES IT IS CLEAR THAT THE ASSESSEE DEPOSITED THE CHEQUES INTO THE BA NK ON 29.09.2008, BUT THOSE CHEQUES WERE NOT CLEARED ON 3 0.09.2008 AND WERE CLEARED ON 03.10.2008. THE LD. COUNSEL HAS RE LIED ON THE DECISION IN THE CASE OF VARDHAMAN CHEMICALS VS. COM MISSIONER OF CENTRAL EXCISE AND CUSTOMS & ANR. 263 ITR 460 (BOM. ). THE ISSUE WAS IN RESPECT OF THE PAYMENT WHICH WAS TO BE MADE UNDER THE KAR VIVAD SAMADHAN SCHEME. IN THE SAID CASE AGAIN THE ISSUE WAS IF THE CHEQUE WAS DELIVERED TO THE BANK BUT CLEARED LA TER ON, WHETHER THE SAID PAYMENT CAN BE TREATED AS PAID ON DATE ON WHICH CHEQUE IS 4 DEPOSITED, THEIR LORDSHIPS HELD THAT WHEN THE CHEQU E IS DELIVERED TO THE BANK, THEN IT OPERATES AS A PAYMENT. IN THE LI GHT OF THE ABOVE DISCUSSION AND RESPECTFULLY FOLLOWING RATIO IN THE CASE OF VARDHMAN CHEMICALS (SUPRA), WE HOLD THAT THERE IS NO JUSTIFI CATION, SO FAR AS THE FACTS OF THIS CASE IS CONCERNED AND THE EVIDENC E ON RECORD, TO DENY DEDUCTION OF THE VAT AMOUNTING TO RS.44,95,312 /-, AS THE ASSESSEE HAS ESTABLISHED THAT THE CHEQUES WERE DEPO SITED INTO STATE BANK OF INDIA, AURANGABAD BRANCH ON 29.09.2008, BUT THERE WAS A DELAY IN CLEARING. WE ACCORDINGLY DIRECT THE ASSES SING OFFICER TO ALLOW THE DEDUCTION OF THE MVAT TO THE ASSESSEE WHI CH IS OTHERWISE DISALLOWED BY INVOKING THE PROVISIONS OF SECTION 43 B OF THE ACT. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF APRIL, 2013. SD/- SD/- ( G.S.PANNU ) ( R.S.PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 29 TH APRIL, 2013 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ACIT, CIRCLE-2, AURANGABAD. 3. THE CIT(A), AURANGABAD. 4. THE CIT, AURANGABAD. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.