CHIRANJI LAL GAGDISH NARAIN, Dausa V. ITO, Dausa

MA 148/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5212 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM M.A. NO.148/JP/16 (ARISING OUT OF ITA NO. 936/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 M/S. CHIRANJI LAL JAGDISH NARAIN, NEW MANDI, DAUSA. CUKE VS. INCOME TAX OFFICER, WARD, DAUSA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAEFC 1424 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/01/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 11/01/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE SUBJECT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE REVENUE WHICH IS ARISING OUT OF THE ORDER PASSED BY THE COORDINATE BENCH IN I.T.A. NO.936/JP/2013 DATED 30.11.2015. IN ITS APPLICATION, THE REVENUE HAS DRAWN REFERENCE TO THE PARA-5 OF THE SA ID ORDER DATED 30.11.2015 WHEREIN THE COORDINATE BENCH WHILE DISPOSI NG OFF THE GROUND RELATING TO DISALLOWANCE U/S 40(A)(IA) HAS HE LD AS UNDER:- M.A. NO.148/JP/16 SHRI CHIRANJI LAL JAGDISH NARAIN, DAUSA 2 2.5 LD. DRS PROPOSITION DESERVES MERIT, CONSEQUENTLY THE GROUND ABOUT APPLICABILITY OF SEC. 40(A)(IA) IS SET ASIDE AND RESTORED BACK TO LD. AO TO VERIFY AND APPLY SEC. 40(A)(IA) ONLY TO AMOUNTS REMAINING PAYABLE TO RSWC AT THE YEAR END AND NOT ON AMOUNT ACTUALLY PAID. 2. FURTHER, IT WAS SUBMITTED THAT THE CBDT IN PARA 4 OF THE CIRCULAR NO.10/DV/2013 CIRCULATED VIDE LETTER F.NO.279/MISC. /M-61/2012-ITJ (VOL.II) DATED 16 TH DECEMBER, 2013 ON SEC. 40(A)(IA) OF THE I.T. ACT, 1961 HAS DIRECTED AS UNDER:- AFTER CAREFUL EXAMINATION OF THE ISSUE, THE BOARD IS OF THE CONSIDERED VIEW THAT THE PROVISION OF SECTION 40(A)(IA) OF THE ACT WOULD COVER NOT ONLY THE AMOUNT S WHICH ARE PAYABLE AS ON 31 ST MARCH OF A PREVIOUS YEAR BUT ALSO AMOUNTS WHICH ARE PAYABLE AT ANY TIME DURI NG THE YEAR. THE STATUTORY PROVISIONS ARE AMPLY CLEAR A ND IN THE CONTEXT OF SECTION 40(A)(IA) OF THE ACT THE TER M PAYABLE WOULD INCLUDE AMOUNTS WHICH ARE PAID DURI NG THE PREVIOUS YEAR. 3. IN THE LIGHT OF ABOVE, IT WAS SUBMITTED THAT THE AFORESAID CIRCULAR IS EQUALLY APPLICABLE IN THIS CASE ALSO AND IT IS P RAYED THAT THE DEPARTMENTAL APPEAL MAY BE HEARD AND DECIDED ON MER ITS. 4. THE COORDINATE BENCH HAS DISCUSSED THE ISSUE REGA RDING DISALLOWANCE UNDER SECTION 40(A)(IA) IN PARA NO.2.3 & 2.4 OF ITS ORDER WHICH ARE REPRODUCED AS UNDER:- M.A. NO.148/JP/16 SHRI CHIRANJI LAL JAGDISH NARAIN, DAUSA 3 2.3. APROPOS GROUND NO.3 LD. COUNSEL CONTENDS RELI ED ON HONBLE ALLAHABAD HIGH COURT JUDGMENT IN THE CASE O F CIT V VECTOR SHIPPING SERVICES 262 CTR 545 FOR THE PROPOSI TION THAT SEC. 40(A)(IA) AS IT STOOD AT THAT TIME WAS APP LICABLE TO ONLY PAYABLE I.E. OUTSTANDING AMOUNTS. THE RENT IS A CTUALLY PAID TO RSWC AND THERE WAS NO AMOUNT PAYABLE AT THE END OF THE YEAR. SUBSEQUENTLY A LEGISLATIVE AMENDMENT I N IT ACT HAS ALSO BEEN MADE W.E.F. 01.04.2013 TO THIS EFF ECT. THEREFORE, DISALLOWANCE U/S 40(A)(IA) IS UNCALLED FOR . 2.4. LD. DR QUA 3 RD GROUND CONTENDS THAT FROM THE RECORD THE FACT THAT RENT WAS ACTUAL PAID TO RSWC IN THE YEAR A ND THERE WAS NOTHING PAYABLE IS NOT EMERGING FROM THE R ECORD, THEREFORE, THIS ISSUE MAY BE SET ASIDE FOR NECESSAR Y VERIFICATION TO AO. LD. COUNSEL FOR ASSESSEE HAS NO OBJECTION. LD. DRS PROPOSITION DESERVES MERIT, CONSEQUENTLY THE GROUND ABOUT APPLICABILITY OF SEC. 40(A)(IA) IS SET ASIDE AND RESTORED BACK TO LD. AO TO RSWC AT THE YEAR END AND NOT ON AMOUNT ACTUALLY PAID. 5. FROM THE PERUSAL OF THE COORDINATE BENCH DECISIO N, IT IS CLEAR THAT IT HAS RELIED ON THE DECISION OF ALLAHABAD HIGH COU RT IN CASE OF CIT(A) VS. VECTOR SHIPPING SERVICES(SUPRA). FURTHER, THER E IS NOTHING ON RECORD TO SHOW THAT THE CIRCULAR NO.10/DV/2013 DATED 16 TH DECEMBER, 2013 WAS BROUGHT TO THE NOTICE OF THE COORDINATE BENCH. IN ANY CASE, THE VIEW EXPRESSED IN THE CIRCULAR IS A DEPARTMENTAL VIE W WHICH IS NOT M.A. NO.148/JP/16 SHRI CHIRANJI LAL JAGDISH NARAIN, DAUSA 4 BINDING ON THE TRIBUNAL. GIVEN THAT THE COORDINATE B ENCH HAS RELIED ON THE DECISION OF VECTOR SHIPPING SERVICES (SUPRA), WE DO NOT THINK THERE IS ANY MISTAKE WHICH IS APPARENT ON RECORD, WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE I.T. ACT, 1961. IN THE LIGHT OF ABOVE, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS D ISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:-11/01/2017. * SANJEEV. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO WARD DAUSA, DAUSA. 2. IZR;FKHZ@ THE RESPONDENT- SHRI CHIRANJI LAL JAGDISH NARAIN, DA USA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {M.A. NO.148/JP/16 } VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR