SHRI MUKESH PATIDAR, Shajapur V. THE ITO, Shajapur

ITA 862/IND/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4442 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 16-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MOHD JAVED
• Section: 40A(3)

Judgement Text

ITA NO. 862/IND/2016 MUKESH PATIDAR 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO.862/IND/2016 ASSESSMENT YEAR: 2009-10 MUKESH PATIDAR SHAJAPUR PAN ANMPP 5802C :: APPELLANT VS INCOME TAX OFFICER SHAJAPUR :: RESPONDENT REVENUE BY SHRI RAJESH MEHTA ASSESSEE BY SHRI MOHD. JAVED ! ' #$ DATE OF HEARING 5.10.2016 %&'( #$ DATE OF PRONOUNCEMENT 21.10.2016 * O R D E R PER SHRI D.T. GARASIA, JM THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 13.5.2016 OF THE LEARNED CIT(A), UJJAIN. ITA NO. 862/IND/2016 MUKESH PATIDAR 2 2. THE ONLY GROUND IN THIS APPEAL IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION O F RS.4,89,154/- U/S 40A OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS MADE CASH PAYMENT OF RS. 4,89,154/- IN VIOLATION OF SECTION 40A(3) OF THE ACT. THE ASSESSEES INCOME WAS ASSESSED U/S 44FA OF THE ACT. THE ASSESSING OFFICER WAS OF THE VIEW THAT SECTION 40A(3) IS VERY CLEAR AND IF THE PAYMENT IS MADE OTHERWISE THAN CROSSED CHEQUE, IF THE AMOUNT IS IN EXCESS OF RS. 20,000/-, SECTION 40A IS APPLICABLE. THE MATTER CARRIED TO THE LEARNED CIT(A) AND THE LEARNED CIT(A) DISMISSED THE SAME. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IN CONTROVE RSY IS COVERED BY THE DECISION OF THE HIMACHAL HIGH COURT IN THE CASE OF M/S AMRIT SUGAR COMPANY VS. ITO; ITA NO. 31 OF ITA NO. 862/IND/2016 MUKESH PATIDAR 3 2003 WHEREIN IT IS HELD THAT WHEN THE ASSESSEE IS ASSE SSED U/S 44A OF THE ACT, NO DISALLOWANCE UNDER SECTION 40A (3) OF THE ACT CAN BE MADE. THE LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT THIS VIEW IS SUPPORTED BY VARIOUS BENC HES OF THE TRIBUNAL AND ALSO THE HIGH COURT WHEREIN IT IS HELD THAT WHEN THE ASSESSMENT IS COMPLETED U/S 44F, NO DISALLOWANCE CAN BE MADE. 5. HAVING HEARD BOTH THE PARTIES AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE IS SUE IN CONTROVERSY IS COVERED BY VARIOUS DECISIONS OF TH E TRIBUNAL IN THE CASE OF BALAJI CONSTRUCTION ; 66 TTJ P UNE, AHMEDABAD BENCH OF THE TRIBUNAL IN GOPAL; 94 TTJ (AHD. ). IN THE CASE OF AMRIT SUGAR COMPANY (SUPRA), IT WAS OBSERVED AS UNDER :- IN THIS BEHALF, WE ARE FULLY SUPPORTED BY THE JUDG MENT OF THE ALLAHABAD HIGH COURT DELIVERED IN COMMISSION ER OF INCOME TAX VS. BANWARI LAL BANSHIDHAR, 1998 (229 ) ITA NO. 862/IND/2016 MUKESH PATIDAR 4 229 WHEREIN THE ALLAHABAD HIGH COURT HELD AS FOLLOW S :- ALL THE THREE QUESTIONS, REFERRED TO THIS COURT, REVOLVE ROUND THE SAME CONTROVERSY. THE QUESTION FOR CONSIDERATION IS WHEN NO DEDUCTION WAS SOUGHT AND ALLOWED UNDER SECTION 40A(3) AND RULE 6DD(J). WE SEE FORCE IN THE VIEW TAKEN BY THE APPELLATE TRIBUNAL THAT WHEN THE INCOME OF THE ASSESSEE WAS COMPUTED APPLYING THE GROSS PROFIT RATE AND WHEN NO DEDUCTION WAS ALLOWED IN REGARD TO THE PURCHASES OF THE ASSESSEE, THERE WAS NO NEED TO LOOK INTO THE PROVISIONS OF SECTION 40A(3) AND RULE 6DD(J). NO DISALLOWANCE COULD HAVE BEEN MADE IN VIEW OF THE PROVISIONS OF SECTION 40A(3) READ WITH RULE 6DD(J) AS NO DEDUCTION WAS ALLOWED TO AND CLAIMED BY THE ASSESSEE IN RESPECT OF THE PURCHASES. WHEN THE GROSS PROFIT RATE IS ALLOWED, ITA NO. 862/IND/2016 MUKESH PATIDAR 5 THAT WOULD TAKE CARE OF EVERYTHING AND THERE WAS NO NEED FOR THE ASSESSING OFFICER TO MAKE SCRUTINY OF THE AMOUNT INCURRED ON THE PURCHASES BY THE ASSESSEE. 6. THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 21 OCTOBER, 2016. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 21 OCTOBER, 2016. DN/ ITA NO. 862/IND/2016 MUKESH PATIDAR 6