SHRI SURAJ SINGH, Dewas V. THE DCIT-1(1), Ujjain

MA 110/IND/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5574 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Section: 145

Judgement Text

SHRI SURAJ SINGH GOUD/M.A.NO.110/IND/16/ ARISING OU T OF I. T. A. NO. 648/IND/2016/A.Y.:11-12 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER SHRI SURAJ SINGH GOUD DEWAS V. DCIT-1(1) UJJAIN / APPELLANT / RESPONDENT . . ./ PAN: ACNPG 3266 H / APPELLANT BY SHRI S.S. DESHPANDE, CA / RESPONDENT BY SHRI MOHD. JAVED, SR. DR. / DATE OF HEARING 31-03-2017 / DATE OF PRONOUNCEMENT 17-04-2017 / O R D E R PER O.P. MEENA, ACCOUTANT MEMBER. 1. THROUGH THIS MISC. APPLICATION, THE ASSESSEE HAS BR OUGHT TO OUR NOTICE THAT THERE IS MISTAKE APPARENT FROM RECORDS IN THE ORDER OF TRIBUNAL IN I.T.A. NO. 648/IND/2015 DATED 02-08-20 16. 2. THE LEARNED COUNSEL SUBMITTED THAT THE GROUND NO. 1.2 HAS REMAINED TO BE UNDECIDED WHEREAS GROUND NO. 1.1 HAS BEEN DECIDED M.A. NO. 110/IND/2016 ARISING OUT OF .../ I.T.A. NO.648/IND/2016 &( ( / ASSESSMENT YEAR:2011-12 SHRI SURAJ SINGH GOUD/M.A.NO.110/IND/16/ ARISING OU T OF I. T. A. NO. 648/IND/2016/A.Y.:11-12 PAGE 2 OF 3 AND DISMISSED. THE LEARNED COUNSEL SUBMITTED THAT W HILE DECIDING GROUND NO. 1.1, THE ADDITION SUSTAINED BY THE CIT(A ) ON ACCOUNT OF DISALLOWANCE OF RS. 5,26,223/- UNDER SECTION 40(A)( IA) OF THE ACT WERE UPHELD BY THE TRIBUNAL BY HOLDING THAT DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT CAN BE MADE EVEN WHERE BOOKS O F ACCOUNTS ARE REJECTED UNDER SECTION 145 OF THE ACT AND ADDITION IS MADE BY APPLYING NET PROFIT RATE. HOWEVER, WITH REFERENCE TO GROUND NO. 1.2, THE A.R. OF THE ASSESSEE SUBMITTED A CERTIFICATE WAS FILED DURI NG APPELLATE PROCEEDING, FROM CHARTED ACCOUNTANT (PAPER BOOK PAG E NO. 28-29) TO THE EFFECT FROM M/S. SUNDRAM FINANCE, THAT THE RECI PIENT OF INTEREST HAS DULY DISCLOSED ITS INCOME IN ITS CASE AND PAID TAXES THEREON. THEREFORE, SECOND PROVISO TO SECTION 40(A)(IA) OF T HE ACT INTRODUCED BY FINANCE ACT, 2012 FROM 1.4.2013 APPLICABLE IN THEIR CASE THEREFORE, NO DISALLOWANCE UNDER SECTION 40(A)(IA) COULD HAVE BEE N MADE ON THIS ISSUE, OR MAY HAVE BEEN RESTORED TO THIS FILE OF THE AO FOR ALLOWING DEDUCTION AFTER VERIFICATION. FOR THE PROPOSITION THAT SECOND PROVISO IS RETROSPECT IN NATURE, THE LD. AR RELIED ON VARIOUS DECISIONS. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE H AVE NOTICED, THAT THE ISSUE IS COVERED, IN PRINCIPLE, IN FAVOR OF THE ASSESSEE BY HONBLE DELHI HIGH COURTS JUDGEMENT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD. [2015] 377 ITR 635(DEL)/ [2015] 6 1 TAXMANN.COM 45 (DELHI), WHEREIN THEIR LORDSHIPS HAVE HELD THAT AS LONG AS THE SHRI SURAJ SINGH GOUD/M.A.NO.110/IND/16/ ARISING OU T OF I. T. A. NO. 648/IND/2016/A.Y.:11-12 PAGE 3 OF 3 RECIPIENT OF THE INCOME HAS PAID THE DUE TAX IN RES PECT OF THE INCOME EMBEDDED IN THE PAYMENTS, DISALLOWANCE UNDER SECTIO N 40(A) (IA) OF THE ACT CANNOT BE MADE. HOWEVER, AS THIS ASPECT OF THE MATTER HAS NOT BEEN EXAMINED BY ANY OF THE AUTHORITIES BELOW, THER EFORE, WITH THE CONSENT OF LD. DEPARTMENTAL REPRESENTATIVE, THE MAT TER IS REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION DENOVO IN THE LIGHT OF ABOVE OBSERVATIONS AND IN THE LIGHT OF LAW LAID DOW N BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD. [2015] 377 ITR 635 (DEL) /[2015] 61 TAXMANN.CO M 45 (DELHI). THUS, THE IMPUGNED ORDER IN I.T.A. NO. 648/IND/2015 DATED 02.08.2016IS MODIFIED TO THIS EXTENT. 2. IN THE RESULT, MISC. APPLICATION FILED BY THE AS SESSEE STANDS ALLOWED. 3. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17-04 -2017. SD/- SD/- ( .. ) /(C.M. GARG) (..) /(O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17-04-2017