M/s Balaji Heavy Lifters, RAJKOT-GUJARAT V. The Asstt. Commr. of Income Tax, Circle, GANDHIDHAM

ITA 722/RJT/2014

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1585 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 11-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

BALAJI HEAVY LIFTERS VS. ACIT, CIRCLE, GANDHIDHAM / ITA NO .722 / R JT /20 14 / A . Y. 20 0 5 - 06 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT . . [ , . . , BEFORE SHRI C. M.GARG , JUDICIAL MEMBER AND SHRI O.P.MEENA , ACCOUNTANT MEMBER . . ./ I.T . A . NO. 722 / RJT / 201 4 [[ / ASSESSMENT YEAR : 20 0 5 - 06 BALAJI HEAVY LIFTERS, C/O.D.R.ADHIA, OM SHRI PADMALAYA, BESIDE TRIKAMRAIJI HA WELI, OPP.IMPERIAL HOTEL, 16 JAGNATH PLOT, DR.YAGNIK ROAD, RAJKOT. [PAN: AACCB 5738 R] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE , GANDHIDHAM. APPELLANT / RESPONDENT [ /ASSESSEE BY WRITTEN SUBMISSION /REVENUE BY SHRI PRAVEEN VERMA SR. D.R. / DATE OF HEARING: 2 2 .11. 2018 /P RONOUNCEMENT ON 26 . 1 1 .2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME T AX (APPEALS) - II , RAJKOT (IN SHORT THE CIT (A)) DATED 13.10.2014 PERTAINING TO ASSESSMENT YEAR 2005 - 06 WHICH IN TURN HAS ARISEN FROM THE ORDER BALAJI HEAVY LIFTERS VS. ACIT, CIRCLE, GANDHIDHAM / ITA NO .722 / R JT /20 14 / A . Y. 20 0 5 - 06 PAGE 2 OF 4 PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE, GANDHIDHAM - KUTCH (IN SHORT THE AO) DATED 14 . 11 .20 07 UNDER SECTION 143(3) R.W.S. 144 OF INCOME TAX ACT,1961 (IN SHORT THE ACT). 2. GROUND NO.1 TO 5 STATES THAT THE CIT(A) ERRED IN LAW AND AS WELL AS ON FACTS IN CONFIRMING THE DISALLOWANCE MADE U/S.40(A)(IA) ON ACCOUNT OF AMOUNT OF RS.13,50,393/ - WHEREAS THE HONBLE GUJARAT HIGH COURT HAS HELD THAT ON C E PAYMENT OF TDS IS MADE BEFORE DUE DATE FOR FILING OF RETURN, NO DISALLOWANCE U/S.40(A)(IA) IS TO MADE, THE DECISION WAS BROUGHT TO THE NOTICE OF THE CIT(A). HOWEVER, HE HAS ERRED IN RELYING ON A DECISION WHICH IS NOT APPLICABLE TO THE FACTS OF THE CASE. 3. THE LD.COUNSEL VIDE WRITTEN SUBMISSION SUBMITTED THAT TDS OF RS.82,88,551/ - AND RS.18,551/ - HAS BEEN MADE ON DUE DATE FOR PAYMENT, AND TDS WAS MADE ON DUE DATE FOR PAYMENT WAS DEDUCTED O N DUE DATE OF PAYMENT ON 07.02.2005, 07.03.2005 RESPECTIVELY ON THE TOTAL AMOUNT OF RS.13,50,393/ - . HOWEVER, THE SAME HAS BEEN PAID ON 31.05.2005 I.E. BEFORE THE DUE DATE OF FILING THE RETURN WHICH IS 31.07.2005. THEREFORE, RELYING ON THE BALAJI HEAVY LIFTERS VS. ACIT, CIRCLE, GANDHIDHAM / ITA NO .722 / R JT /20 14 / A . Y. 20 0 5 - 06 PAGE 3 OF 4 DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT, RAJKOT - 1 VS. VIJAY PRINTERS, TAX APPEAL NO.797 OF 2012 DATED 22.11.2013 (COPY PLACED AT PAPER BOOK PAGE 38 TO 77) IT WAS SUBMITTED THAT NO DISALLOWANCE U/S.40(A)(IA) IS TO BE MADE. I T WAS HELD THAT WHEN THE PAYMENT BEFORE THE DUE DATE OF FILING RETURN OF INCOME, NO DISALLOWANCE CAN BE MADE U/S.40(A)(IA) OF THE ACT. THEREFORE, THE ADDITION MADE BY THE AO IS REQUIRED TO BE DELETED. 4. PER CONTRA, THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE (SR.DR) RELIED ON THE ORDERS OF THE CIT(A). 5. WE HAVE HEARD THE LD.SR.DR AND PERUSED THE WRITTEN SUBMISSIONS FILED BY THE AR OF THE ASSESSEE, WE FIND THAT THE ASSESSEE HAS DEDUCTED TDS O N PAYMENT OF RS.13,50,393/ - . HOWEVER, THE SAID TDS WAS DEPOSITED IN THE GOVERNMENT ACCOUNT ON 31.05.2005. THE HONBLE GUJ ARAT HIGH COURT IN THE CASE OF VIJAY PRINTERS (SUPRA) HAS HELD THAT IF THE TAX IS DEDUCTED AT ANY TIME DURING THE FINANCIAL YEAR AND PAID BEFORE THE DATE OF FILING OF RETURN, THE LEGISLATURE INTENDED TO ALLOW DEDUCTION OF SUCH EXPENDITURE WITH AN INTENTION TO PERMIT ADDITIONAL TIME FOR MOST BALAJI HEAVY LIFTERS VS. ACIT, CIRCLE, GANDHIDHAM / ITA NO .722 / R JT /20 14 / A . Y. 20 0 5 - 06 PAGE 4 OF 4 DEDUCTORS UP TO SEPTEMBER OF THE NEXT FINANCIAL YEAR. IT WAS ALSO HELD THAT THE AMENDMENT BROUGHT IN THE TDS IN SECTION 40(A)(IA) OF THE ACT BY FINANCE ACT 2010 WAS RETROSPECTIVE IN NATURE. I N VIEW OF THESE FACTS, WE F IND THAT THE ASSESSEE HAVING DEPOSITED TDS BEFORE DUE DATE OF FILING OF RETURN. THEREFORE, NO DISALLOWANCE U/S.4 0(A)(IA) OF THE A CT CAN BE MADE, ACCORDINGLY DISALLOWANCE OF RS.13,50,393/ - IS THEREFORE DELETED. ACCORDINGLY APPEAL OF THE ASSESSEE IS ALLOWE D. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 7. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26 .11.2018 . SD/ - SD/ - ( . . /C.M. GARG) ( . . / O.P.MEENA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / RAJKOT, DATED : 26 TH NOVEMBER , 2018/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO: - 1) ASSESSEE 2) A CIT, CIRCLE, GANDHIDHAM 3) CIT(A) - II, RAJKOT 4) ACIT, GANDHIDHAM CIRCLE, GANDHIDHAM 5) ITAT (DR) 6) GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, RAJKOT