Shri Ratilal Keshavlal Nena, Surendranagar V. The Deputy Commissioner of Income Tax, Surendranagar Circle, Surendranagar

ITA 992/RJT/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62789 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 25-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH
• Assessee Lawyers: CHIRAG SHAH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM. ITA NO. 992/RJT/2010. / ASSESSMENT YEAR 2007-08. SHRI RATILAL KESHAVLAL NENA, PROP. OF M/S. R.K. NENA, NR. 34 NO. BUS STAND, RATANPAR, SURENDRANAGAR. ( )/ APPELLANT) D. C. I. T., SURENDRANAGAR CIRCLE, SURENDRANAGAR.. *+)/ RESPONDENT ,- / ASSESSEE BY SHRI CHIRAG SHAH, C.A. - / REVENUE BY SHRI PREM PRAKASH, D.R. - / DATE OF HEARING 16-04-2012. - / DATE OF PRONOUNCEMENT 27-04-2012. / / / / ORDER . .. . . . . . / D. K. SRIVASTAVA: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 08-04-2010, ON THE FOLLOWING GROUNDS:- (1) THE ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER AND PARTLY CONFIRMED BY THE FIRST APPEAL AUTHORITY IS BAD IN L AW AND DESERVES TO BE UNCALLED FOR. (2) THE ASSESSING OFFICER AS WELL AS FIRST APPELLAT E AUTHORITY HAS ERRED IN LAW AND ON FACTS IN MAKING AND CONFIRMING RESPECTIV ELY DISALLOWANCE OF RS.1,00,000/- U/S.40(A)(IA) OF IT ACT PAID TOWARDS ROLLER RENT. THE SAME DESERVES TO BE DELETED. (3) THE ASSESSING OFFICER AS WELL AS FIRST APPELLAT E AUTHORITY HAS ERRED IN LAW AND ON FACTS IN MAKING AND CONFIRMING RESPECTIV ELY DISALLOWANCE OF RS.9,20,000/- U/S.40(A)(IA) OF IT ACT PAID TOWARDS SUBCONTRACT CHARGES TO M/S. GUJARAT CONSTRUCTION. THE SAME DESERVES TO BE DELE TED. (4) THE ASSESSING OFFICER AS WELL AS FIRST APPELLAT E AUTHORITY HAS ERRED IN LAW AND ON FACTS IN MAKING AND CONFIRMING RESPECTIV ELY ADDITION OF RS.40,10,171/- U/S.40(A)(IA) OF IT ACT PAID TOWARDS LABOUR CHARGES. THE SAME DESERVES TO BE DELETED. (5) THE ASSESSING OFFICER AS WELL AS FIRST APPELLAT E AUTHORITY HAS ERRED IN LAW AND ON FACTS IN MAKING AND CONFIRMING RESPECTIV ELY DISALLOWANCE OF ITA 992/2010 2 RS.9,89,000/- U/S.40(A)(IA) OF IT ACT PAID TOWARDS CARTING EXPENSE. THE SAME DESERVES TO BE DELETED. (6) THE APPELLANT CRAVES TO RESERVE HIS RIGHT TO AD D, ALTER, AMEND, OR DELETE ANY GROUND OF APPEAL DURING THE COURSE OF HE ARING. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE T HAT THE ASSESSEE CLAIMED DEDUCTION FOR EXPENSES INCURRED TOWARDS ROLLER RENT (RS.1,00, 000/-), SUBCONTRACT CHARGES (RS.9,20,000/-), LABOUR CHARGES (RS.40,10,171/-) AN D CARTING EXPENSE (RS.9,89,000/-). THE ASSESSING OFFICER EXAMINED TH E CLAIM AND NOTICED THAT THE ASSESSEE HAD NOT DEDUCTED THE TAX AT SOURCE OUT OF THE AFORESAID PAYMENTS AS REQUIRED BY SEC. 40(A)(IA) OF THE I-T ACT. HE THER EFORE, DISALLOWED THE SAME. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE DISALLOWAN CE OF THE AFORESAID EXPENSES. 3. AGGRIEVED BY THE ORDER OF THE C.I.T.(A), THE ASS ESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. AT THE TIME OF HEARING, THE LD. AUTH ORIZED REPRESENTATIVE FOR THE ASSESSEE INVITED OUR ATTENTION TO THE DECISION OF A SPECIAL BENCH OF THIS TRIBUNAL IN M/S. MERILYN SHIPPING & TRANSPORTS V. A.C.I.T., ITA NO.477/VIZ./2008 IN WHICH IT HAS BEEN HELD THAT SEC. 40(A)(IA) WOULD APPLY ONLY TO T HE EXPENDITURE WHICH IS PAYABLE AS ON 31 ST MARCH AND NOT TO THE EXPENSES WHICH HAVE ALREADY B EEN PAID DURING THE YEAR ITSELF. HE CLAIMED THAT THE ASSESSEE HAS NOT S HOWN ANY OF THE AFORESAID EXPENSES AS PAYABLE AS ON 31 ST MARCH OF THE RELEVANT PREVIOUS YEAR AND THEREFORE, NO DISALLOWANCE WAS CALLED FOR. 4. IN REPLY, THE LD. DEPARTMENTAL REPRESENTATIVE SU PPORTED THE ORDER PASSED BY THE CIT(A) IN THIS BEHALF. 5. WE HAVE HEARD BOTH THE PARTIES. THE LD. AUTHORI ZED REPRESENTATIVE FOR THE ASSESSEE HAS NOT MADE ANY SUBMISSION EXCEPT THAT NO NE OF THE AFORESAID EXPENSES WAS PAYABLE AS ON 31 ST MARCH AND THEREFORE, NO DISALLOWANCE WAS CALLED FO R U/S 40(A)(IA) IN TERMS OF THE DECISION OF A SPECIAL BEN CH OF THIS TRIBUNAL IN M/S. MERILYN SHIPPING & TRANSPORTS V. A.C.I.T. (SUPRA). ACCORDI NG TO HIM, ENTIRE EXPENDITURE WAS PAID WITHIN THE YEAR ITSELF. HOWEVER, THE SUBMISSIO N OF THE ASSESSEE THAT ENTIRE EXPENDITURE WAS ACTUALLY PAID BY THE ASSESSEE DURIN G THE PREVIOUS YEAR ITSELF NEEDS VERIFICATION. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE C.I.T.(A) IS SET ASIDE AND THE MATTER IS RESTORED TO HIS FILE FOR A FRESH DECISION IN CONFORMITY WITH LAW AFTER BRINGING RELEVANT FACTS ON RECORD. REASONABLE OPPOR TUNITY OF HEARING SHALL BE GIVEN TO BOTH THE PARTIES. APPEAL FILED BY THE ASSESSEE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSES. - 3 27/04/2012 5 - THIS ORDER PRONOUNCED IN OPEN COURT ON 27-04-2012. SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER RAJKOT, THE 27 TH APRIL 2012 ITA 992/2010 3 - -- - *8 *8 *8 *8 98 98 98 98 / COPY OF ORDER FORWARDED TO:- 1. ) / APPELLANT-SHRI RATILAL KESHAVLAL NENA, PROP.OF M /S. R.K. NENA, SURENDRANAGAR. 2. *+) / RESPONDENT-THE DCIT, SURENDRANAGAR CIRCLE,SUREND RANAGAR. 3. > / CONCERNED CIT-V, AHMEDABAD. 4. >- / CIT (A)-XVI, AHMEDABAD. 5. 8 *, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.