M/S. ACHARYA BROTHERS, Nagpur V. DY.COMMISSIONER OF INCOME TAX,CIRCLE-8, Nagpur

ITA 74/NAG/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9568 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 12-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MILIND BHUSARI
• Assessee Lawyers: M MANI

Judgement Text

ITA NO. 74/NAGPUR/2010 M/S. ACHARYA BROTHERS, NAGPUR IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , NAGPUR BEFORE: SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI D.T. GARASIA , JUDICIAL MEMBER ITA NO. 74 / NAG / 20 10 ASSESSMENT YEAR : 2006 - 07 M/S. ACHARYA BROTHERS NAGPUR VS. DCIT CI RCLE - 8 NAGPUR (APPELLANT) (RESPONDENT) PAN NO.AAKFA 4998H APPELLANT BY: SHRI M. MANI, ADVOCATE RESPONDENT BY: DR. MILIND BHUSARI, CIT(DR) DATE OF HEARING: 11.10.2012 DATE OF PRONOUNCEMENT: 15.10.2012 ORDER PER P.K. BANSAL, ACCOUNTANT MEMBER: - THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATE TO THE SUSTENANCE TO THE DISALLOWANCE U/S 40(A)(IA) BY THE CIT(A) IN RESPECT OF THE PAYMENT MADE BY THE ASSESSEE TO THE TRANSPORTERS. AT THE OUTSET, THE LD. A.R. CONTENDED THAT DUE TO THE DECISION OF THE S PECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS, VISAKHAPATNAM VS. ADDITIONAL CIT IN ITA NO.477/VIZAG/2008 DATED 9.4.2012 , U/S 40(A)(IA) ONLY THAT EXPENDITURE CAN BE DISALLOWED WHICH IS PAYABLE AS ON 31 ST MARCH OF THE PREVIOUS YEAR RELEVANT TO TH E ASSESSMENT YEAR. IT WAS POINTED OUT THAT IN THE CASE OF THE ASSESSEE, ONLY A SUM OF RS.3,20,547/ - WAS PAYABLE AS ON 31.3.2006. SINCE AS ON 31.3.2006, ONLY A SUM OF RS.3,20,547/ - WAS PAYABLE, THEREFORE, AT THE MOST THE DISALLOWANCE CAN BE MADE ONLY FOR RS.3,20,547/ - AND NOT OF RS.56,86,316/ - . THE LD. D.R. ON THE OTHER HAND RELIED ON THE ORDER OF THE CIT(A) AND CONTENDED THAT THE ASSESSING OFFICER HAS NOT VERIFIED HOW MUCH AMOUNT REMAINS PAYA B LE AS ON 31.3.2006 AS THE DECISION OF THE SPECIAL BENCH WAS NO T AVAILABLE WHEN THE ORDER WAS PASSED. 2. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. ON A QUERY FROM THE LD. A.R., HE WAS FAIR ENOUGH TO ACCEPT THE POSITION THAT THE DETAILS OF EXPENSES PAYABLE AS ON 31.3.2006 WERE NOT VERIFIED BY THE ITA NO.74/NAGPUR/2010 M/S. ACH ARYA BROTHERS, NAGPUR 2 ASSESSING OFFICER AND THESE WERE ALSO NOT FILED BEFORE HIM AS THIS PLEA WAS ONLY TAKEN NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE CIT(A). THE DECISION OF THE SPECIAL BENCH AS GIVEN RECENTLY AND THIS PLEA HAS BEEN TAKEN FOR THE FIRST TIME BEFO RE THIS TRIBUNAL. IN VIEW OF THIS FACT AND THE DECISION OF THE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS (SUPRA) , WE FEEL IT APPROPRIATE TO SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THIS ISSUE TO THE ISSUE OF THE ASSESSING OFFICER WIT H THE DIRECTION THAT THE ASSESSING OFFICER SHALL RE - DECIDE THIS ISSUE AFRESH AFTER CONSIDERING THE DECISION OF THE SPECIAL BENCH OR ANY OTHER DECISION WHICH MIGHT HAVE GIVEN SUBSEQUENTLY IN ACCORDANCE WITH LAW AFTER VERIFYING THE AMOUNT PAYABLE BY THE ASSE SSEE AS ON 31.3.2006. NEEDLESS TO SAY THAT THE ASSESSING OFFICER SHALL GIVE PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBMIT ALL THE NECESSARY PAPERS AND DOCUMENTS AS HE MAY DESIRE TO PROVE HIS CLAIM. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A). 3. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15.10 .20 1 2 SD/ - SD/ - ( D.T. GARASIA ) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER VG/SPS NAGPUR DATED 15 TH OCTOBER , 20 1 2 COPY TO 1 M/S. ACHARYA BROTHERS, R.B. BHUSARI & CO. CHARTERED ACCOUNTANTS, FIRST FLOOR, VALI MANZIL, GADDI GODAM SQUARE, KAMPTEE ROAD, NAGPUR - 440 001. 2 DCIT CIRCLE - 8, NAGPUR 3 THE CIT (A) , NAGPUR 4 THE DR, ITAT, NAGPUR 5 GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL NAGPUR