M/s. Meera Dyestuff Industries, Ahmedabad V. The ITO-Ward- 6(4), Ahmedabad

ITA 910/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94659 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 24-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH D SHAH
• Keywords: Reopening of assessment; Invalid notice
• Section: 143(3); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO: 910/AHD/2012 (ASSESSMENT YEAR: 2006-07) M/S. MEERA DYESTUFF INDUSTRIES C-1/243/2 PHASE-II, VINZOL ROAD, GIDC, ESTATE, VATVA, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 6 (4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABFM1315 K APPELLANT BY : SHRI RAJESH D. SHAH, AR RESPONDENT BY : SHRI SOMOGYAN PAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 28-09-2015 DATE OF PRONOUNCEMENT : 30-10-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-XI, AHMEDABAD DATED 20.03.2012 FOR A.Y. 2006-07. ITA NO. 910/ AHD/2012 . A.Y. 2006-07 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF DYES AND CHEMICALS. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2006-07 ON 05.12.2006 DECLARING TOTAL INCOME OF RS. 1,55,210/- . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAM ED UNDER SECTION 143(3) VIDE ORDER DATED 16.09.2008 AND THE TOTAL INCOME WA S DETERMINED AT RS. 1,87,820/-. SUBSEQUENTLY NOTICE U/S. 148 WAS ISSUED ON 10.03.2010 AND THE CASE WAS RE-OPENED AND THEREAFTER THE ASSESSMENT WA S FRAMED U/S. 144 R.W.S. 147 VIDE ORDER DATED 20.12.2010 AND THE TOTAL INCOM E WAS RE-ASSESSED AT RS. 5,00,967/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSE E CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 20.03.2012 D ISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF L D. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWIN G GROUNDS WHICH HAVE BEEN LATTER REVISED ON 18.08.2015 AND THE REVISED G ROUNDS READS AS UNDER:- 1. THE IMPUGNED ASSESSMENT ORDER U/S 144 R.W.S 147 OF THE ACT IS ALSO BAD IN LAW AND INVALID AS MUCH AS THE SAME BEING BASED ON THE INVALID NOTICE U/S 148 OF THE FACT ISSUED ON MERE CHANGE OF OPINIO N ON THE SAME SET OF FACTS AND EVIDENCES AVAILABLE ON RECORD AND ON THE BASIS OF WHICH THE ORIGINAL ASSESSMENT U/S 143(3) WAS PASSED. 4. BEFORE US, LD. A.R. SUBMITTED THAT IN THE PRESENT C ASE, THE NOTICE FOR RE- OPENING WAS ISSUED ON 10.03.2010 I.E. WITHIN A PERI OD OF 4 YEARS FROM THE END OF THE ASSESSMENT YEAR. HE SUBMITTED THAT THE O RIGINAL ASSESSMENT WAS FRAMED U/S. 143(3) VIDE ORDER DATED 16.09.2008 AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS, VARIOUS DETAILS WERE CALLED FOR BY THE A.O AND THE ITA NO. 910/ AHD/2012 . A.Y. 2006-07 3 SAME WAS VERIFIED. HE SUBMITTED THAT THE REASONS FO R WHICH THE ASSESSMENT WAS RE-OPENED WAS ALREADY EXAMINED BY THE A.O IN TH E ORIGINAL ASSESSMENT PROCEEDINGS AND THUS IT WAS A CASE OF CHANGE OF OPI NION WHICH IS NOT PERMITTED AS PER THE SETTLED LAW. HE ALSO PLACED RE LIANCE ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. KELVINATO R INDIA LTD. (2010) 320 ITR 561 (SC). ON THE MERITS OF THE ADDITION, HE SUB MITTED THAT THE DISALLOWANCE WAS MADE U/S. 40(A)(IA) FOR THE REASON THAT ASSESSEE HAD PAID CLEARING AND FORWARDING CHARGES WITHOUT DEDUCTION O F TDS. FROM THE SUMMARY OF PAYMENT PLACED AT PAGE 54 OF THE PAPER B OOK, HE POINTED AND SUBMITTED THAT ALL THE PAYMENTS WHICH HAVE BEEN DIS ALLOWED BY A.O DID NOT REQUIRE DEDUCTION OF TDS AS THEY WERE BELOW THE SPE CIFIED LIMIT OF PAYMENT AS STIPULATED IN RELEVANT SECTION AND EVEN OTHERWIS E THE PAYEES TO WHOM THE AMOUNTS HAVE BEEN PAID BY THE ASSESSEE, HAVE ALREAD Y CONSIDERED THE PAYMENTS RECEIVED FROM ASSESSEE AS THEIR INCOME AND HAVE ALSO PAID THE TAX ON IT AND THEREFORE RELYING ON THE DECISION OF APEX COURT IN THE CASE OF HINDUSTAN COCO COLA REPORTED IN (2007) (SC) 293 ITR 226 SUBMITTED THAT NO DISALLOWANCE U/S. 40(A)(IA) COULD BE MADE IN ASSESS EES CASE. IN SUPPORT OF HIS CONTENTION OF THE PAYEES HAVING PAID THE TAXES, HE PLACED ON RECORD THE COPY OF THE CERTIFICATES ISSUED BY THE CHARTERED AC COUNTANT WHEREBY IT WAS CERTIFIED THAT THE AMOUNTS RECEIVED FROM ASSESSEE H AVE BEEN CONSIDERED BY THE RESPECTIVE PAYEES AS INCOME FOR THE PURPOSE OF PAYMENT OF TAX. HE HOWEVER FAIRLY CONCEDED THAT THESE CERTIFICATES OF CHARTERED ACCOUNTANTS COULD NOT BE PRODUCED BY HIM BEFORE THE LOWER AUTHO RITIES AND THEREFORE WITHOUT PRESSING ON THE LEGAL ISSUE AND AS AN ALTER NATE SUBMISSION, HE STATED THAT THE MATTER MAY BE REMITTED TO THE FILE OF A.O TO DECIDE THE MATTER ON MERITS IN VIEW OF THE DECISION OF HINDUSTAN COCO CO LA (SUPRA). LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. C IT(A). ITA NO. 910/ AHD/2012 . A.Y. 2006-07 4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE DISALLOWANCE WAS MADE U/S. 40(A)(IA) ON ACCOUNT OF NON DEDUCTION OF TDS. BEFORE US, LD. A.R. WITHOUT PRESS ING ON THE LEGAL ISSUE OR REOPENING OF ASSESSMENT, ON MERITS SUBMITTED THAT T HE PAYEES TO WHOM THE AMOUNTS WAS PAID BY THE ASSESSEE HAVE ALREADY CONSI DERED THE AMOUNTS PAID BY THE ASSESSEE AS THEIR INCOME AND THEREFORE NO DI SALLOWANCE U/S. 40(A)(IA) IS CALLED FOR IN VIEW OF THE DECISION OF HONBLE AP EX COURT IN THE CASE OF HINDUSTAN COCO COLA (SUPRA) AND TO VERIFY THIS ASPE CT HE SUBMITTED THAT THE MATTER BE REMITTED BACK. BEFORE US, LD. A.R. HAS FI LED THE COPIES OF C.A. CERTIFICATES IN SUPPORT OF HIS CONTENTION THAT THE AMOUNTS WHICH HAVE BEEN PAID BY ASSESSEE HAVE BEEN CONSIDERED BY THE RESPEC TIVE PAYEES AS THEIR INCOME. WE FIND THAT THESE CERTIFICATES WERE NOT PR ODUCED BY ASSESSEE BEFORE THE LOWER AUTHORITIES. IN SUCH A SITUATION, WITHOUT EXPRESSING OUR VIEWS ON THE LEGAL ASPECT OF REOPENING BUT ON THE M ERITS OF NO DISALLOWANCE ON ACCOUNT OF THE PAYMENTS BEING CONSIDERED BY THE PAYEES AS THEIR INCOME, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE ISSUE NEEDS TO BE RE- EXAMINED ON MERITS AND DECIDED AFRESH IN THE LIGHT OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF HINDUSTAN COCO CO LA (SUPRA) AND AS PER FACTS AND LAW. WE THEREFORE REMIT THE ISSUE BACK TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH. NEEDLESS TO STATE THAT A.O SHALL GRANT REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THIS G ROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 910/ AHD/2012 . A.Y. 2006-07 5 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 30 - 10 - 2015 . SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD