I.T.O., V. M/s Vijay Laxmi Transport,

ITA 71/RAN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85462 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 12-07-2013
• Court: TRIBUNAL
• Section: 154

Judgement Text

1 ITA NO.71/RAN/2013 M/S. VIJAY LAXMI TRANSPORT INCOME TAX APPELLATE TRIBUNAL, CIRCUIT BENCH, RANCHI BEFORE HON'BLE SHRI H.L. KARWA, PRESIDENT , AND HON'BLE SHRI B.R. BASKARAN, ACCOUNTANT M EMBER ITA NO. 71 /RAN/2013 A.Y 200 8 - 09 I.T.O WARD 1( 2 ), D BAD VS. M/S. VIJ AY LAXMI TRANSPORT PAN: AABFV 6426G ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT : SHRI CHOUDHARY ORAM, LD.JCIT/DR FO R THE RESPONDENT /DEPARTMENT : SHRI R . L AGARWAL, ADVOCATE,LD.AR DATE OF HEARING : 26 - 11 - 2014 DATE OF PRONOUNCEMENT: 26 - 11 - 201 4 ORDER SHRI B.R. BASKARAN, ACCOUNTANT MEMBER : THE APPEAL FI LED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 09 - 4 - 2013 PASSED BY LD CIT(A), DHANBAD AND IT RELATES TO THE ASSESSMENT YEAR 2008 - 09. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN DELETING THE DISALLOWANCE OF RS.29,94,442/ - MADE BY THE A SSESSING OFFICER U/S 40(A)(IA) OF THE ACT FOR NOT REMITTING THE TDS AMOUNT BEFORE THE END OF THE FINANCIAL YEAR. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE IS A TRANSPORT CONTRACTOR. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 14 3(3) OF THE ACT ON 28.12.2010, WHEREIN HE DISALLOWED A SUM OF RS.18,93,139/ - U/S 40(A)(IA) OF THE ACT OUT OF THE HIRE CHARGES OF RS.1,32,43,570/ - CLAIMED B Y THE ASSESSEE FOR NON - PAYMENT OF TAX DEDUCTED AT SOURCE BEFORE THE END OF THE FINANCIAL YEAR . THE A SSESSEE HAD PAID THE HIRE CHARGES FOR TAKING THE LORRIES ON HIRE. LATER THE AO NOTICED THAT THE DISALLOWANCE TO BE MADE U/S 40(A)(IA) WORKS OUT TO RS.48,87,581/ - AND ACCORDINGLY INITIATED RECTIFICATION PROCEEDINGS U/S 154 OF THE ACT AND ACCORDINGLY DISALL OWED THE DIFFERENCE AMOUNT OF RS.29,94,442/ - . WE 2 ITA NO.71/RAN/2013 M/S. VIJAY LAXMI TRANSPORT NOTICE THAT THE ASSESSEE HAD FILED APPEAL BEFORE LD CIT(A) AGAINST BOTH THE DISALLOWANCES. THE LD CIT(A) PASSED A COMBINED ORDER AND CONFIRMED THE DISALLOWANCE OF RS.18,93,139/ - MADE IN THE ORIGINAL ASSESS MENT PROCEEDINGS AND DELETED THE DISALLOWANCE OF RS.29,94,442/ - MADE IN THE RECTIFICATION PROCEEDINGS. THE LD CIT(A) ACCEPTED THE CONTENTIONS OF THE ASSESSEE THAT THE AMENDMENT BROUGHT IN SEC. 40(A)(IA) OF THE ACT BY FINANCE ACT 2010 PROVIDING THAT THERE I S NO REQUIREMENT OF MAKING DISALLOWANCE IF THE TDS AMOUNT WAS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME SHALL HAVE RETROSPECTIVE APPLICATION. AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US. 3. WE NOTICE THAT THE ASSESSEE HAD PAID SI GNIFICANT PORTION OF THE TDS AMOUNT BEFORE THE DUE DATE FOR FILING RETURN OF INCOME. THE LD CIT(A) NOTICED THAT THE AMENDMENT BROUGHT IN SEC. 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010 WAS HELD TO BE RETROSPECTIVE IN OPERATION BY THE HON BLE CALCUTTA H IGH COURT IN THE CASE OF VIRGIN CREATIONS (ITA NO.302 OF 2011, GA 3200/2011). THE SAID DECISION WAS SEEN FOLLOWED BY THE VARIOUS BENCHES OF TRIBUNALS. ACCORDINGLY, THE LD CIT(A) DELETED THE DISALLOWANCE OF RS.29,94,442/ - MADE IN THE RECTIFICATION PROCEED INGS ON THE GROUND THAT THE RELEVANT TDS AMOUNT WAS PAID BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME RELATING TO THE ASSESSMENT YEAR 2008 - 09. 4. AT THE TIME OF HEARING, THOUGH THE LD D.R POINTED OUT THAT TDS AMOUNT OF RS.23,704/ - WAS PAID ON 6 .3.2009, I.E., AFTER THE DUE DATE FOR FILING THE RETURN OF INCOME, YET HE COULD NOT CONFIRM AS TO WHETHER THE SAID PAYMENT WAS RELATED TO THE AMOUNT OF RS.29,94,442/ - , REFERRED ABOVE. HENCE, WE HAVE NO OTHER OPTION BUT TO INFER THAT THE SAID TDS PAYMENT W AS NOT RELATED TO THE ADDITON MADE UNDER 154 PROCEEDINGS. 3 ITA NO.71/RAN/2013 M/S. VIJAY LAXMI TRANSPORT 5. SINCE THE LD CIT(A) HAS DELETED THE DISALLOWANCE ON THE BASIS OF THE DECISION RENDERED BY HON BLE CALCUTTA HIGH COURT IN THE CASE OF VIRGIN CREATIONS (SUPRA), WE DO NOT FIND ANY INFIRMITY IN HIS ORDER. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 - 11 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARA N ] PRESIDENT ACCOUNTANT MEMBER DATE: 26.11.2014 PLACE : RANCHI PP, SPS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : I T O W 1(2), D BAD . 2 THE RESPONDENT: M/S. VIJAY LAXMI TRANSPORT , SIJUA, D BAD 3. .THE CIT, 4.THE C IT(A), 5.DR, ITAT CIRCUIT BENCH, RANCHI 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT. REGISTRAR 4 ITA NO.71/RAN/2013 M/S. VIJAY LAXMI TRANSPORT 1. DATE OF DICTATION ............. 26 - 11 - 2014 DICTATED ON MEMBER S LAPTOP. HENCE, SHORTHAND PAGES NOT AVAILAB LE ....................... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ........................OTHER MEMBER ....... 27 - 11 - 2014 ........................ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ................. .... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT................... 26 - 11 - 14 .................................................................. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S ....... ......... 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ......................................... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................................................................................................. 9. DATE OF DESPATCH OF THE ORDER ..............................................................