The ACIT, Central Circle-2, Baroda V. Shri Avtarsingh M.Ramgadia, Baroda

ITSSA 5/AHD/2013

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9385 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-09-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 01-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , , , . .. . . .. . !'# !'# !'# !'#, , , , $ % $ % $ % $ % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER APPEAL(S) BY APPELLANT VS. RESPONDENT SL. NO(S) . ITA / IT(SS) NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. ITA NO.2/AHD/2013 2010-11 ASST.CIT CENTRAL CIRCLE-2 BARODA (REVENUE) SHRI AVTARSINGH M.RAMGADIA 5, YANTRIKA SOCIETY NEW SAMA ROAD BARODA-390 009 (ASSESSEE) PAN : ABNPR 5802 P 2. IT(SS)A NO.5/AHD/2013 2004-05 REVENUE ASSESSEE 3. IT(SS)A NO.6/AHD/2013 2005-06 REVENUE ASSESSEE 4. IT(SS)A NO.7/AHD/2013 2006-07 REVENUE ASSESSEE 5. IT(SS)A NO.8/AHD/2013 2007-08 REVENUE ASSESSEE 6. IT(SS)A NO.9/AHD/2013 2008-09 REVENUE ASSESSEE 7. IT(SS)A NO.10/AHD/2013 2009-10 REVENUE ASSESSEE REVENUE BY : SHRI T.P.KRISHNA KUMA R, CIT-DR ASSESSEE BY : - NONE- &' ( )$ / / / / DATE OF HEARING : 10/09/2013 +!, ( )$ / DATE OF PRONOUNCEMENT : 16/09/2013 - / O R D E R PER BENCH : ALL THESE APPEALS ARE FILED BY THE REVENUE FOR SEV EN ASSESSMENT YEARS, I.E. AYS 2004-05 TO 2010-11 AND A LL THESE APPEALS ARE DIRECTED AGAINST THE COMBINED ORDER OF THE LD.CIT(A )-IV AHMEDABAD DATED 25/10/2012. SINCE A COMMON ISSUE IS INVOLVED , ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WA Y OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.2/AHD/2013 (AY 2010-11) & IT(SS)A NOS.5 TO 10/AHD/2013 ACIT VS. SHRI AVTARSINGH M.RAMGADIA ASST.YEARS 2004-05 TO 2009-10 (RESPECTIVELY) - 2 - 2. NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY RE GISTERED A.D. AND THE SAME WAS DULY SERVED UPON THE ASSESSEE AS PER T HE ACKNOWLEDGEMENT AVAILABLE ON RECORD AND STILL NOBODY APPEARED ON B EHALF OF THE ASSESSEE ON THE DATE OF HEARING, I.E. ON 10/09/2013 AND THER E IS NO REQUEST FOR ADJOURNMENT AND, HENCE, WE PROCEED TO DECIDE THESE APPEALS EX-PARTE QUA THE ASSESSEE AFTER HEARING THE LD.CIT-DR OF THE REV ENUE. 3. IT WAS SUBMITTED BY THE LD.CIT-DR OF THE REVENUE THAT THIS ISSUE REGARDING DISALLOWANCE MADE BY THE AO U/S.40(A)(IA) OF THE IT ACT WAS DECIDED BY THE LD.CIT(A) ON THE BASIS OF THE DECISI ON OF THE SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF MERIL YN SHIPPING & TRANSPORTS VS. ACIT IN ITA NO.477/VIZ/2008 DATED 29 /03/2012 (ITAT VISAKHAPATNAM BENCH). HE SUBMITTED THAT NOW THIS D ECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IS NO MORE A GOOD LAW BECAUSE VARIOUS HIGH COURTS INCLUDING HONBLE GUJARAT HIGH COURT HA S ALREADY REVERSED THIS DECISION OF SPECIAL BENCH OF THE TRIBUNAL. HE NCE, THE ORDER OF THE LD.CIT(A) SHOULD BE REVERSED AND THAT OF THE AO SH OULD BE RESTORED. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.CIT -DR OF THE REVENUE. WE FIND THAT THE LD.CIT(A) HAS DECIDED THIS ISSUE IN DISPUTE BY FOLLOWING THE DECISION OF SPECIAL BENCH OF THE T RIBUNAL RENDERED IN THE CASE OF MERILYN SHIPPING & TRANSPORTS VS. ACIT (SUPRA). WE ALSO FIND THAT THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL HAS ALREADY BEEN REVERSED BY VARIOUS HIGH COURTS INCLUDING HON BLE GUJARAT HIGH COURT AND, HENCE, THIS DECISION OF THE SPECIAL BENC H OF THE TRIBUNAL IS NO MORE A GOOD LAW. BUT AT THE SAME TIME, WE ALSO FEE L THAT THE DECISION OF ITA NO.2/AHD/2013 (AY 2010-11) & IT(SS)A NOS.5 TO 10/AHD/2013 ACIT VS. SHRI AVTARSINGH M.RAMGADIA ASST.YEARS 2004-05 TO 2009-10 (RESPECTIVELY) - 3 - THE LD.CIT(A) IS CONFINED TO THIS ASPECT ALONE THAT WHETHER THE EXPENDITURE WAS PAID OR PAYABLE AND FOR THIS REASON ALONE THAT THE AMOUNT WAS PAID BEFORE THE LAST DAY OF EACH OF THE PREVI OUS YEARS, IT WAS HELD BY HIM BY FOLLOWING THIS DECISION OF THE SPECIAL B ENCH OF THE TRIBUNAL THAT DISALLOWANCE U/S.40(A)(IA) OF THE ACT IS NOT J USTIFIED. BUT HE HAS NOT EXAMINED THE OTHER ASPECTS OF THE MATTER AS TO WHET HER TDS WAS DEDUCTIBLE OR NOT AND WHETHER THE TDS WAS IN FACT D EDUCTED AND PAID IN THE RELEVANT YEAR OR IN THE SUBSEQUENT YEAR. WE FE EL IT PROPER THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE LD.CIT(A) FOR A FRESH DECISION ON THE MERIT OF THE DISALLOWANCE MADE BY THE AO U/S.40 (A)(IA) OF THE ACT AND, HENCE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE THE ENTIRE MATTER BACK TO HIS FILE FOR A FRESH DECISION. THE BURDEN IS ON THE ASSESSEE TO ESTABLISH BEFORE THE LD.CIT(A) THAT EITHER NO TD S WAS DEDUCTIBLE OR TDS WAS DEDUCTED AND PAID AND THEN ONLY THE ASSESSE E CAN GET RELIEF OUT OF DISALLOWANCE MADE BY THE AO U/S.40(A)(IA) OF THE ACT. 4. IN THE RESULT, ALL THE SEVEN APPEALS OF THE REV ENUE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. SD/- SD/- ( ) ( .. !'# ) $ ( MUKUL KR. SHRAWAT ) ( A. K. GARODIA ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD; DATED 16/ 09 /2013 .)..&, .&../ T.C. NAIR, SR. PS ITA NO.2/AHD/2013 (AY 2010-11) & IT(SS)A NOS.5 TO 10/AHD/2013 ACIT VS. SHRI AVTARSINGH M.RAMGADIA ASST.YEARS 2004-05 TO 2009-10 (RESPECTIVELY) - 4 - - ( /0 10, - ( /0 10, - ( /0 10, - ( /0 10,/ COPY OF THE ORDER FORWARDED TO : 1. 23 / THE APPELLANT 2. /423 / THE RESPONDENT. 3. 5 / CONCERNED CIT 4. 5() / THE CIT(A)-IV, AHMEDABAD 5. 08 /& , , / DR, ITAT, AHMEDABAD 6. #9 :' / GUARD FILE. -& -& -& -& / BY ORDER, 40 / //TRUE COPY// ; ;; ;/ // / < < < < ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION 11.9.13 (DICTATION-PAD 7 PAGES ATTACHED WITH THE FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11.9.13 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.17.9.13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17.9.13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER