Bajaj Steel, Lakhimpur V. Assistant Commissioner of Income Tax, Circle-Tezpur, Tezpur

ITA 79/GTY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8503 (ITAT-GUWAHATI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 04-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K BHARDWAJ
• Keywords: Retrospective amendment; Corroborative evidences; TDS
• Section: 40(a)(ia); 201(1); 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH SMC GUWAHATI BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.79/GAU/2019 ASSESSMENT YEAR:2012-13 BAJAJ STEEL N.T. ROAD, P.O. NORTH LAKHIMPUR, DIST. LAKHIMPUR-787001 [ PAN NO.AABFB 8410 A ] / V/S . ACIT, CIRCLE-TEZPUR AAYKAR BHAWAN, EX POLICE LINE, TEZPUR PIN-784001 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI A.K. BHARDWAJ, ADDL. CIT-DR /DATE OF HEARING 11-07-2019 /DATE OF PRONOUNCEMENT 10-10-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-1, GUWAHATIS ORDER DATED 12.11.2018 PASSED IN CASE NO. TEZ-03/2015-16/178, INVOLVING PROCEEDIN GS U/S. 144 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARED AT ASSESSEES BEHE ST. I PROCEED EX PARTE AGAINST THE ASSESSEE IN THE INSTANT APPEAL. 2. THE ASSESSEES FORMER SUBSTANTIVE GROUND CHALLEN GES BOTH THE LOWER AUTHORITIES ACTION DISALLOWING 10% OF THE EXPENSES CLAIMED UND ER THE HEAD CARRIAGE INWARDS AMOUNTING TO 13,25,660/- TO A PERUSAL OF THE ASSESSMENT ORDER DA TED 18.03.2015 SUGGESTS THAT THIS ASSESSEE; WHO IS ENGAGED IN WHOL ESALE AND RETAILER BUSINESS OF HARDWARE AND CEMENT, HAD CLAIMED THE IMPUGNED PAYME NT(S) TO TRUCK DRIVERS FOR ITA NO.79/GAU/2019 A.Y .2012-13 BAJAJ STEEL VS. ACIT CIR-TEZ PAGE 2 TRANSPORTATION OF GOODS FROM GUWAHATI TO NORTH LAKH IMPUR. THE ASSESSING OFFICER CONCLUDED IN HIS ASSESSMENT THAT SINCE THE ASSESSEE HAD FAILED TO PRODUCE THE RELEVANT BILLS ALONGWITH EXPLANATION, 10% OF THE SAID AMOUNT COMING TO THE IMPUGNED SUM OF 1,32,56,607/- DESERVED TO BE DISALLOWED. THE CIT(A) HAS AFFIRMED THE SAME. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THE CLIN CHING FACT THAT NEITHER OF THE LOWER AUTHORITY HAS DRAWN ANY COMPARATIVE ANALYSIS OF ASS ESSEES SIMILAR CLAIM IN EARLIER OR LATTER ASSESSMENT YEARS. THERE IS ALSO NO EXPLANATI ON COMING FROM THE ASSESSEES SIDE ACCOMPANIED BY THE RELEVANT SUPPORTING EVIDENCE. I THEREFORE DEEM IT APPROPRIATE THAT A LUMP SUM DISALLOWANCE OF 5 LAC OUT OF THAT MADE BY THE LOWER AUTHORITIES OF 13,256,660/- WOULD BE JUST AND PROPER WITH A RIDER THAT SAME SHALL NOT BE TREATED AS A PRECEDENT IN ANY OTHER ASSESSMENT YEAR. THIS FORMER SUBSTANTIVE GROUND IS PARTLY ALLOWED. 3. NEXT COMES SEC. 40(A)(IA) DISALLOWANCE OF RENT P AYMENTS MADE TO THE ASSAM STATE WAREHOUSING CORPORATION (ASWC) ON ACCOUNT OF NON-DEDUCTION OF TDS. SECTION 40(A)(IA) 2 ND PROVISO INSERTED IN THE ACT WITH EFFECT FROM 01.04 .2013 STIPULATES THAT THE IMPUGNED DISALLOWANCE DOES NOT COME INTO P LAY IN CASE THE ASSESSEES CONCERNED IS NOT AN ASSESSEE IN DEFAULT U/S 201(1) AND THE PAYEE HAS BEEN ASSESSED QUA THE SAME IN ISSUE. HON'BLE DELHI HIGH COURT IN CIT VS. ANSAL LAND MARK TOWNSHIP PVT. LTD. (2015) 377 ITR 635 (DEL) HOLDS THAT THE ABOVE PRO VISO APPLIES WITH RETROSPECTIVE EFFECT BEING CURATIVE IN NATURE. I THEREFORE DEEM I T APPROPRIATE TO RESTORE THE INSTANT ISSUE BACK TO THE ASSESSING OFFICER FOR NECESSARY F ACTUAL VERIFICATION AS TO WHETHER THE ASSESSEES PAYEE HAS BEEN ASSESSED TO TAX QUA THE IMPUGNED RENTAL INCOME AS PER LAW. 4. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(3) OF THE ITAT RULES BY PUTTING ON NOTICE BOARD 10 /10/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R GUWAHATI *DKP/SR.PS ' - 10/10/2019 ITA NO.79/GAU/2019 A.Y .2012-13 BAJAJ STEEL VS. ACIT CIR-TEZ PAGE 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-BAJAJ STEEL, N.T. ROAD, P.O. NORTH LAKHI MPUR, DIST. LAKHIMPUR ASAM-787001 2. /RESPONDENT-ACIT, CIR-TEZPUR, AAYKAR BHAWAN, EX POL ICE LINE, TEZPUR PIN-784001 3. & ' , / CONCERNED CIT GUWAHATI 4. ' - / CIT (A) 5. - //& , & , / DR, ITAT, GUWAHATI 6. 1 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY (ON TOUR) &,