The ITO, Ward-5(2), Ahmedabad V. M/S Prarthna Const P Ltd, Ahmedabad

MA 195/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6508 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1997-1998
• Appeal Filed On: 13-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR TEKRIWA LA
• Assessee Lawyers: MEHUL K PATEL
• Section: 143(3)

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI T. K. SHARMA, JM AND D.C.AGRAWAL, AM JT. CIT (SR)-1, AHMEDABAD. VS. PRARTHANA CONSTRUCTION (P) LTD., 10, PRITEM NAGAR, ELLISBRIDGE, AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI SAMIR TEKRIWALA, SR.DR RESPONDENT BY:- SHRI MEHUL K. PATEL, AR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . THIS MISCELLANEOUS APPLICATION ARISING OUT OF ORDE R IN ITA NO.2236/AHD/2010 ASST. YEAR 1997-98 DATED 22.2.2010 , HAS BEEN FILED BY THE REVENUE. IN THIS MISCELLANEOUS APPLICATION T HE REVENUE HAS RAISED THE FOLLOWING CONTENTIONS:- 1.3 THE HON'BLE TRIBUNAL HERD THAT 'THE SECTION [S ECTION 249(4)] CLEARLY JAYS DOWN THAT ADMISSION OF APPEAL BY ID. CIT(A) WI LL DENIED ONLY WHEN TAXES AS PER THE RETURN ARE NOT PAID AT THE TIME OF FIFING OF APPEAR AND NOT AT THE TIME OF FILING OF RETURN. THUS, IT IS INCORR ECT ON THE PART OF LD. CIT (A) TO REFUSE TO ADMIT THE APPEAL WITHOUT CONSIDERI NG THE FACTS THAT ASSESSEE HAS PAID TAXES AS PER RETURN OF INCOME UPT O DECEMBER, 1998, WHEREAS THE APPEAL IS FILED ON 24.02.2000. WE HAVE HELD WHILE DISPOSING OF APPEAL FOR THE SAME YEAR AGAINST LEVY OF PENALTY UNDER SECTION 140A(3) R.W.S 221 THAT TAXES PAID BY THE ASSESSEE IN 1998 A RE FOR ASST. YEAR 1996- M.A. NO.195/AHD/2010 ARISING OUT OF ITA NO.2236/AHD/2002 ASST. YEAR 1997-98 M.A. NO.195/AHD/2010 ARISING OUT OF ITA NO.2236/AHD/2002 ASST. YEAR 1997-98 2 97 THOUGH THEY MIGHT HAVE BEEN ADJUSTED BY THE DEPA RTMENT AGAINST THE DEMAND FOR ASST. YEAR 1996-97. NO CONTRARY MATERIAL HAS BEEN SHOWN BY THE REVENUE AGAINST THE ASSERTION OF THE FACT THAT THE TAXES AS ABOVE, WERE PAID BY THE ASST. YEAR 1997-98. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF MCI T(A) AND RESTORE THE APPEAL TO HIS FILE FOR DECIDING IT ON MERIT.' 1.4 FT APPEARS THAT THE HON'BLE ITAT HAS CONSIDERED THE ARGUMENT OF THE ASSESSEE THAT THE REGULAR PAYMENT MADE BY IT FOR AY 1996-97 SHOULD BE TREATED AS ADVANCE TAX AND SELF ASSESSMENT PAY MEN I FOR AY 1997*98. 1.5 THE ASSESSEE WAS REQUESTED TO PRODUCE THE CHALL ANS FOR VERIFICATION. THE ASSESSEE PRODUCED PHOTOCOPIES OF FOLLOWING CHAL LANS. COPY OF CHALLANS ARE ATTACHED FOR REFERENCE AND FURTHER USE . S. NO TENDERING DATE AMOUNT IN RS. MONTH GROSS TOTAL FOR THE MONTH IN RS. PAID BY THE ASSSESSEE FOR THE AY REMARKS 1 5-6-1998 1 ,00,000 JUNE 98 100000 1996-97 2 1-7-1998 2,00,000 JULY 98 1996-97 3 27-7-1998 1,00,000 JULY 98 1996-97 4 29-7-1998 1,00,000 JULY 98 400000 1996-97 5 17-9-1998 1,00,000 SEPT 98 1996-97 6 17-9-1998 1,00,000 SEPT 98 1996-97 7 17-9-1 99S 5,436 SEPT 98 1996-97 8 17-9-1996 7.438 SEPT 98 1996-97 9 18-9-1998 1,00,000 SEPT 98 1996-97 10 23-9-1998 1,083 SEPT 98 313957 1996-97 11 3-10-1998 2,50,000 OCT 98 1996-97 9-10-1998 50,000 OCT 98 300000 1996-97 TOTAL 1113957 M.A. NO.195/AHD/2010 ARISING OUT OF ITA NO.2236/AHD/2002 ASST. YEAR 1997-98 3 THE ASSESSEE HAS ALSO BEEN REQUESTED TO PRODUCE REM AINING CHALLANS FOR VERIFICATION. 1.6 AS FAR AS SELF ASSESSMENT TAX FOR AY 1997-98 IS CONCERNED THE ASSESSEE HAS PAID ONLY RS.3,13,5QQ/-AS TDS PAYMENT AND NO OTHER CREDIT WAS GIVEN TO THE ASSESSEE IN PROCESSING SHEET U/S 1 43(1)(A) DATED 06-10- 99.[COPY ATTACHED] , CALCULATION SHEET (ITNS-150) F OR THE ASSESSMENT U/S 143(3) DATED 22-03-2000 R [COPY ATTACHED] AND CALCULATION SHEET (ITNS- 150) FOR THE ASSESSMENT U/S 143(3) R.W.S 147DATED D ATED 31-03- 2003.[COPY ATTACHED]. THIS CALCULATION SHEETS SHOWS THAT THERE WAS NO SELF ASSESSMENT TAX PAID BY THE ASSESSEE FOR AY 199 7-06. 1.7 THE CHALLANS CLEARLY SUGGESTS THAT THE PAYMENT WAS MADE AS TAX FOR REGULAR ASSESSMENT FOR THE AV 199G-97, 1,8 MOREOVER, DURING THE PENALTY PROCEEDINGS U/S 22 1(1) R.W.S. 140(A) FOR BOTH THE ASSESSMENT YEARS, THE ASSESSEE HAS NEVER C ONTENDED THAT THE REGULAR TAX PAYMENT FOR AY 1996-97 SHOULD BE TREATE D AS ADVANCE FAX PAYMENT FOR AY 1997-98. SO, THE FACTS AND CONDUCT OF THE ASSESSEE DURING TH E PENALTY PROCEEDINGS SUGGESTS THAT THE REVISED CONTENTION OF THE ASSESSE E IS AFTER THOUGHT AND NOT SUPPORTED BY THE FACTS. HENCE, IT IS HUMBLY SUBMITTED THAT MERE THE ARGUMEN T TO TREAT THE REGULAR PAYMENT FOR AY 1996-97 AS SELF ASSESSMENT TAX FOR A Y 1997-98 DOES NOT MAKE THE ASSESSEE ELIGIBLE TO FIFE THE FIRST APPEAL BEFORE THE CIT(A). 1.9 IN VIEW OF THIS, THE DECISION OF LD. CIT(A) MAY KINDLY BE UPHELD AND THE ORDER OF SET ASIDE THE ORDER TO FILE CIT(A) FOR DECIDING ON MERIT MAY KINDLY BE REVERSED. 2. WE HAVE HEARD THE PARTIES. IN A SIMILAR CASE IN THE CASE OF JT.CIT VS. PRARTHANA CONSTRUCTION P. LTD. THE ISSUE ADJUST MENT OF TAXES PAID WAS CONSIDERED AND IN THE M.A. BEING NO.194/AHD/2010 AR ISING OUT OF ITA NO.194/AHD/2010, WE MADE FOLLOWING OBSERVATIONS :- M.A. NO.195/AHD/2010 ARISING OUT OF ITA NO.2236/AHD/2002 ASST. YEAR 1997-98 4 4. WE HAVE HEARD BOTH THE PARTIES. FROM THE ORDE R OF THE TRIBUNAL REFERRED TO ABOVE, THERE IS NO DIRECTION THAT REGUL AR TAX PAID FOR THE ASSESSMENT YEAR 1996-97 BY THE ASSESSEE SHOULD BE T REATED AS SELF ASSESSMENT LAX FOR THE ASSESSMENT YEAR 1997-98. THE DIRECTIONS ARE VERY CLEAR THAT PENALTY U/S 140A(3) SHOULD BE CALCULATED FORM THE DATE OF FILING OF RETURN TILL THE PAYMENT OF TAXES OR TILL THE DAL E OF REGULAR ASSESSMENT, WHICHEVER IS EARLIER. IN OTHER WORDS, ONLY THAT PAY MENT OF TAXES WILL BE GIVEN CREDIT WHICH IS PAID FOR THE ASSESSMENT YEAR 1997-98 AS PER CHALLANS AND NO CREDIT WILL BE GIVEN FOR TAXES PAID FOR THE ASSESSMENT YEAR 1996-97 FOR WHICH CREDIT WILL BE GIVEN ONLY IN THAT YEAR AND NOT IN THE ASSESSMENT YEAR 1997-98. WHAT IS OBSERVED BY TH E TRIBUNAL IS ONLY ABOUT CALCULATION OF PENALTY AND IT IS NOT A DIRECT ION THAT TAXES PAID FORT THE ASSESSMENT YEAR 1996-97 SHOULD BE TREATED AS SE LF ASSESSMENT TAX PAID FOR THE ASSESSMENT YEAR 1997-98. IT IS A MATTE R OF VERIFICATION, ACCORDING TO WHICH, THE A.O. CAN TAKE APPROPRIATE A CTION FOR CALCULATING PENALTY U/S 140A(3). IN ANY CASE, THERE IS NO CASE FOR INTERFERENCE IN THE ORDER PASSED BY THE TRIBUNAL. 3. IN THE PRESENT CASE ALSO WE DIRECT THE AO TO VER IFY AS TO WHICH YEAR THE TAXES PAID BY THE ASSESSEE PERTAINED. THE PAYME NT OF TAXES MADE FOR ASST. YEAR 1997-98 AS PER CHALLANS WILL BE GIVEN CR EDIT TO AND NOT FOR TAXES PAID FOR ASST. YEAR 1996-97. THE ASSESSEE WIL L SHOW THE DETAILS AND AO WILL TAKE APPROPRIATE ACTION. SINCE IN ITA NO.22 35/AHD/2002 HAS BEEN RESTORED TO THE FILE OF AP TO DECIDE ON MERITS , HE CAN CONSIDER THE ISSUE OF PAYMENT OF TAXES THEREIN. WITH THE ABOVE O BSERVATION WE REJECT THE M.A. FILED BY THE REVENUE. M.A. NO.195/AHD/2010 ARISING OUT OF ITA NO.2236/AHD/2002 ASST. YEAR 1997-98 5 4. IN THE RESULT, THE M.A. FILED BY THE REVENUE IS REJECTED. ORDER WAS PRONOUNCED IN OPEN COURT ON 24/6/2011. SD/- SD/- (T. K. SHARMA) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD, DATED : 24/6/11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 24/6/11. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 27/6/11. /OTHER MEMBER. 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 DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..