Shree Swami Samarth Gruh Nirman Sansthan, Valsad V. The Income tax Officer,Ward-4, Valsad

ITA 747/AHD/2012

• Counselvise Citation: 74720514 RSA 2012
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIMESH YADAV
• Assessee Lawyers: S N DIVETIA
• Keywords: Principle of natural justice

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' ( & &' ( & &' ( & &' ( & ' ' ' ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.747/AHD/2012 [ASSTT.YEAR : 2006-2007] SHREE SWAMI SAMARTH GRUH NIRMAN SANSTHAN 205, SKAND VINAYAK NR. RAMESHWAR BLDG. HALSAR CROSS ROAD VALSAD. PAN: ABDFS 2704 S /VS. THE ITO, WARD-4 VALSAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : SHRI S.N. DIVETIA ( / 0 &/ REVENUE BY : SHRI NIMESH YADAV 2 / %3'/ DATE OF HEARING : 28 TH MAY, 2012 456 / %3'/ DATE OF PRONOUNCEMENT : 1-06-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS), AHMEDABAD DATED 12.12.2011 FOR THE A SSESSMENT YEAR 2006-2007. ITA NO.747/AHD/2012 -2- 2. THE ONLY EFFECTIVE GROUND OF THE APPEAL OF THE A SSESSEE IS AS UNDER: 1.1 THE ORDER PASSED U/S.250 ON 12.12.2011 FOR A.Y .206-07 BY CIT(A), VALSAD UPHOLDING THE DISALLOWANCE U/S.40 (A)(IA) OF RS.21,27,500 MADE BY AO IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE OF DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISIONS OF THE AHMEDABAD ITAT IN SHRI SURESHBHAI G. PATEL VS. ITO, IN ITA NO.673/AHD/2010 DATED 30-3- 2012 AND M/S.ALPHA PROJECTS SOCIETY P. LTD. VS. DCI T, ITA NO.2869/AHD/2011 DATED 23-3-2012. HE SUBMITTED THA T THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE HONBLE CALCUTTA H IGH COURT IN THE CASE OF CIT VS. VIRGIN CREATIONS IN GA NO.3200/2011 DATED 23-11- 2011 WHEREIN THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO AND TH E CIT(A). HE RELIED ON THE DECISION OF THE SPECIAL BENCH OF ITAT , MUMBAI IN THE CASE OF BHARATI SHIPYARD LTD. VS. DCIT IN ITA NO.24 04/MUM/2009 DATED 12.09.2011 IN SUPPORT OF THE CASE OF THE REVE NUE. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE DECISIONS CITED BY THE PARTIES. WE FIND THAT THE I SSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISIONS OF AHMEDA BAD TRIBUNAL RELIED UPON THE LEARNED COUNSEL FOR THE ASSESSEE. THE TRIBUNAL IN THE DECISIONS RELIED UPON BEHALF OF THE ASSESSEE HAS FO LLOWED THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V S. VIRGIN CREATIONS DATED 23.11.2011 (SUPRA) WHEREIN THE HON BLE HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. W E FIND THAT THE ITA NO.747/AHD/2012 -3- AHMEDABAD TRIBUNAL IN ALPHA PROJECTS SOCIETY P. LTD . FOLLOWING THE DECISIONS OF THE HONBLE HIGH COURT DECISION IN THE CASE OF VIRGIN CREATIONS (SUPRA) HAS HELD THAT THE AMENDMENT OF PR OVISION OF SECTION 40(A)(IA) BY FINANCE ACT, 2010 IS RETROSPECTIVE IN NATURE. WE BEING IN AGREEMENT WITH THE DECISIONS OF THE CO-ORDINATE BEN CHES OF THE ITAT, AHMEDABAD DECIDE THE ISSUE IN FAVOUR OF THE ASSESSE E AND HOLD THAT THE AMENDMENT TO SECTION 40(A)(IA) OF THE ACT IS RE TROSPECTIVE IN NATURE, AND THEREFORE, THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT WAS NOT JUSTIFIED AND WE DELETE THE SAME AND THE GROUND NO.1.1 OF THE ASSESSEES APPEAL IS ALLOWED. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD