Shri Subhash Ramji Shigwan, Ratnagiri V. Dy. CIT Cir Ratnagiri., Ratnagiri

ITA 757/PUN/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9732 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Section: 263

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.757/PN/2012 (ASSTT. YEAR : 2007-08) SUBHASH RAMJI SHIGWAN, SHIGWAN COMPLEX, MANDANGAD, RATNAGIRI. .. APPELLANT PAN: BBJPS4303P VS. DCIT, RATNAGIRI CIRCLE, RATNAGIRI. .. RESPONDENT APPELLANT BY : SHRI M.K.KULKARNI RESPONDENT BY : SHRI S.K.SINGH, CIT(DR) DATE OF HEARING : 10.09.2012 DATE OF PRONOUNCEMENT : 10.09.2012 ORDER PER G.S.PANNU, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX-II, KOLHAPUR (IN SHORT THE COMMISSIONER), DATED 26.03.2012, PASSED U/S.263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), WHEREBY THE ASS ESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 OF THE ACT, DATED 25.1 2.2010, HAS BEEN HELD TO BE ERRONEOUS IN SO FAR IT IS PREJUDICIAL TO THE INTERESTS OF REVENUE WITHIN THE MEANING OF SECTION 263 OF THE AC T. 2. AS PER THE COMMISSIONER, THE ASSESSEE FAILED TO DEDUCT TAX AT SOURCE ON PAYMENTS OF RS.28,01,576/- AND RS.58,64,9 51/- MADE TO TRANSPORT CONTRACTOR AND LABOUR CONTRACTORS RESPECT IVELY, AND THEREFORE, SUCH EXPENDITURE WAS NOT ALLOWABLE WHILE COMPUTING TOTAL INCOME BECAUSE OF THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT. AS PER THE COMMISSIONER, AMOUNT OF SUCH EXPENDITURE DE BITED TO THE PROFIT AND LOSS ACCOUNT WAS REQUIRED TO BE DISALLOW ED WHICH HAS ERRONEOUSLY BEEN ALLOWED BY THE ASSESSING OFFICER I N THE 2 ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 DATED 25.12.2010. FOR THE AFORESAID REASONS, THE COMMISSIONER SET ASI DE THE ASSESSMENT ORDER DATED 25.12.2010 AND DIRECTED THE ASSESSING OFFICER TO RE-EXAMINE THE ENTIRE ISSUE IN VIEW OF S ECTION 40(A)(IA) OF THE ACT AND THEREAFTER MAKE AN ASSESSMENT AFRESH AS PER LAW, AFTER GIVING OPPORTUNITY TO THE ASSESSEE TO FURNISH HIS S AY IN THE MATTER. AGAINST THE AFORESAID ORDER OF THE COMMISSIONER, AS SESSEE IS IN APPEAL BEFORE US. 3. BEFORE US, THE LIMITED PLEA RAISED BY THE LD. CO UNSEL FOR THE ASSESSEE IS THAT THE EXPENDITURES IN QUESTION HAVE BEEN ACTUALLY PAID DURING THE PREVIOUS YEAR UNDER CONSIDERATION A ND NOTHING REMAINS PAYABLE AT THE END OF THE YEAR AND IN THIS VIEW OF THE MATTER, NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT I S CALLED FOR IN TERMS OF DECISION OF THE SPECIAL BENCH OF THE TRIBU NAL IN THE CASE OF MERILYN SHIPPING & TRANSPORTS REPORTED IN 70 DTR (V ISAKHA)(SB) (TRIB) 81. THE LD. COUNSEL FURTHER SUBMITTED THAT T HE ASSESSEE WOULD BE SATISFIED IF THE DIRECTIONS OF THE COMMISS IONER ARE MODIFIED SO AS TO REQUIRE THE ASSESSING OFFICER TO TAKE INTO CONSIDERATION THE RATIO OF THE DECISION OF THE SPEC IAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPOR TS (SUPRA). 4. TO THIS LIMITED PRAYER OF THE ASSESSEE, THE LD. CIT(DR) APPEARING FOR THE REVENUE HAD NO SERIOUS OBJECTION. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS ON THE S HORT POINT RAISED BY THE ASSESSEE, WE DEEM IT FIT AND PROPER T O, IN PRINCIPLE AFFIRM THE ACTION OF THE COMMISSIONER AND DIRECT TH E ASSESSING OFFICER THAT WHILE CARRYING OUT THE DIRECTIONS OF T HE COMMISSIONER 3 CONTAINED IN THE IMPUGNED ORDER DURING THE ENSUING ASSESSMENT PROCEEDINGS, HE SHALL CONSIDER THE POSITION OF LAW CANVASSED BY THE ASSESSEE ON THE BASIS OF THE DECISION OF THE SPECIA L BENCH OF TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS (SUPRA), AS ALSO OTHER SUBMISSIONS AS MAY BE PUT FORTH BY THE ASSESSEE IN SUPPORT OF HIS CLAIM. NEEDLESS TO MENTION, THE ASSESSING OFFICER S HALL CONSIDER THE SUBMISSIONS PUT FORTH BY THE ASSESSEE AND THEREAFTE R ADJUDICATE IN ACCORDANCE WITH LAW. 6. IN THE ABOVE VIEW OF THE MATTER, THE APPEAL OF T HE ASSESSEE IS PARTLY ALLOWED, AS ABOVE. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COUR T IN THE PRESENCE OF BOTH THE PARTIES ON THE CONCLUSION OF T HE HEARING ON 10 TH SEPTEMBER, 2012. SD/- SD/- ( R.S.PADVEKAR ) ( G.S.PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER GSPS PUNE, DATED THE 10 TH SEPTEMBER, 2012 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DCIT, RATNAGIRI CIRCLE, RATNAGIRI. 3. THE CIT-II, KOLHAPUR. 4. THE DR B BENCH, PUNE. 5. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.