M/s. Ratna Developers, Ahmedabad v. The Income tax Officer,Ward-9(1),, Ahmedabad

ITA 1591/AHD/2011 | 2008-2009
Pronouncement Date: 18-11-2011 | Result: Allowed

Appeal Details

RSA Number 159120514 RSA 2011
Assessee PAN AADFR7450A
Bench Ahmedabad
Appeal Number ITA 1591/AHD/2011
Duration Of Justice 5 month(s) 9 day(s)
Appellant M/s. Ratna Developers, Ahmedabad
Respondent The Income tax Officer,Ward-9(1),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 18-11-2011
Assessment Year 2008-2009
Appeal Filed On 08-06-2011
Judgment Text
/ // / / // / / // / IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD ! ! ! ! .#$ !#$ %& % ' BEFORE SHRI MUKUL KR.SHRAWAT JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER !./ I.T.A. NO.1591/AHD/2011 ( $ ( $ ( $ ( $ ( / / / / ASSESSMENT YEAR : 2008-09) M/S.RATNA DEVELOPERS OPP.NATIONAL HANDLOOM LAW GARDEN AHMEDABAD-380 007 $ $ $ $ / VS. THE INCOME TAX OFFICER WARD-9(1) AHMEDABAD ) %& !./*+ !./ PAN/GIR NO. : AADFR 7450 A ( ) / // / APPELLANT ) .. ( -.) / RESPONDENT ) ) / %/ APPELLANT BY : NONE -.) 0 / % / RESPONDENT BY : SHRI B.L.YADAV D.R. $1 0 &/ // / DATE OF HEARING : 04/11/2011 2#( 0 & / DATE OF PRONOUNCEMENT : 18.11.2011 %3/ O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XV AHMEDABA D DATED 14 TH MARCH-2011. SEVERAL GROUNDS HAVE BEEN RAISED HOWE VER ALL OF THEM REVOLVED AROUND A SINGLE ISSUE OF DISALLOWANCE OF R S.5 45 000/- BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE I.T.ACT. IT IS CONTESTED THROUGH THESE GROUNDS THAT ON PAYMENT OF LABOUR CHA RGES TDS WAS ITA NO. 1591/AHD/2011 M/S.RATNA DEVELOPERS VS. ITO ASST.YEAR - 2008-09 - 2 - DEDUCTED AND ALSO DEPOSITED BEFORE FILING OF RETURN AS PER SECTION 139(1) OF THE I.T.ACT. 2. ON THE DATE OF HEARING NO ONE HAS APPEARED FROM THE SIDE OF THE APPELLANT HOWEVER THE NOTICE OF HEARING WAS DULY SERVED ON THE ASSESSEE AS IS EVIDENT FROM THE ACKNOWLEDGEMENT- DUE OF TH E POSTAL DEPARTMENT BEARING NO.1934 DATED 19/10/11 PLACED ON RECORD. O N THE OTHER HAND FROM THE SIDE OF THE REVENUE LEARNED DEPARTMENTAL REPRESENTATIVE MR.B.L.YADAV APPEARED AND SUPPORTED THE ORDERS OF T HE AUTHORITIES BELOW. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T.ACT DATED 20/12/2010 ARE THAT THE ASSESSEE- FIRM IS IN THE BUSINESS OF CONSTRUCTION OF COMMERCI AL AND RESIDENTIAL PREMISES. IT WAS NOTICED BY THE ASSESSING OFFICER THAT LABOUR CHARGES FOR THE PERIOD AUGUST-2007 TO 30 TH JANUARY-2008 AMOUNTING TO RS.5 45 000/- WERE PAID TO ONE SHRI SHAMBUBHAI R.SONI AND THE TDS WAS DEDUCTED ON 20/03/2008. AS PER ASSESSING OFFICER THE TDS SHO ULD HAVE BEEN DEDUCTED AT SOURCE AT THE TIME OF PAYMENT AND THERE AFTER TDS AMOUNT SHOULD ALSO HAVE BEEN DEPOSITED IN THE GOVERNMENT A CCOUNT WITHIN THE SPECIFIED TIME. ASSESSEES CONTENTION WAS THAT IN THE MONTH OF MARCH-2008 THE LABOUR-BILLS WERE CREDITED IN THE SAID PARTYS ACCOUNT AND ACCORDINGLY TDS WAS DEDUCTED ON 20/03 /2008. IT HAS ALSO BEEN INFORMED THAT THE TDS WAS DEPOSITED WITH THE GOVERNMENT DEPARTMENT IN APRIL-2008 AS PRESCRIBED UNDER LAW BE FORE DUE DATE OF FILING OF THE RETURN. ITA NO. 1591/AHD/2011 M/S.RATNA DEVELOPERS VS. ITO ASST.YEAR - 2008-09 - 3 - 4. AGAINST THE SAID ADDITION THE ASSESSEE HAD GON E IN APPEAL AND LD.CIT(A) HAS AFFIRMED THE ACTION OF THE ASSESSING OFFICER WITH THE FOLLOWING OBSERVATIONS:- 4. IN THE GROUND ITSELF IT HAS BEEN STATED THE TD S WAS DEDUCTED BY MARCH 2008 AND WAS DEPOSITED IN GOVERNMENT ACCO UNT IN APRIL 2008 AND THEREFORE THE AO COULD NOT HAVE MAD E THE ADDITION. IT HAS NOT BEEN DISPUTED BY THE APPELLANT THAT THE APPELLANT MADE PAYMENTS OF RS.5 45 000 FROM AUGUST 2007 TO 30.1.20 08. AND THEREFORE AS PER AMENDMENT IN SECTION 40(A)(IA) BRO UGHT BY IT FINANCE (NO.2) ACT 2009 W.E.F. 1.4.2001 TDS SHOULD HAVE BEEN DEDUCTED AND DEPOSITED BY 31.3.2008 INSTEAD IT WAS DEPOSITED IN APRIL 2008. IN VIEW OF CLEAR-CUT PROVISION OF LAW I HAVE NO ALT ERNATIVE BUT TO UPHOLD THE ADDITION MADE. 5. ON CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORIT IES BELOW AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE WE ARE OF THE VIEW THAT ON IDENTICAL SITUATION A VIEW HAS ALREADY BEEN TAKE N BY THE RESPECTED CO- ORDINATE BENCH ITAT A BENCH AHMEDABAD IN THE CASE OF M/S.DIVYA DEVELOPERS IN ITA NOS.3144 & 3232/AHD/2009 (FOR A.Y . 2006-07) VIDE ORDER DATED 11/11/2011 W HEREIN IT WAS HELD AS UNDER:- 3. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES AS FAR AS THE ISSUE OF BELATED DEPOSIT OF TDS THE HONBLE JURISDICTIONAL HIGH COURT IN A LATEST DECISION DATED 18/07/2011 IN TAX APPEAL NO.706 OF 2 010 IN THE CASE OF CIT VS. J.K. CONSTRUCTION CO. HAS HELD AS UNDER:- FROM THE RECORD IT EMERGES THAT FOR PAYMENT TO CO NTRACTOR THE ASSESSEE HAD MADE DEDUCTION AS REQUIRED UNDER LAW FROM TIME TO T IME AND IN PARTICULAR LATEST BY 31.3.2005. THIS IS CLEAR FROM CHART SUPP LIED BY THE ASSESSEE BEFORE CIT (APPEALS) WHICH WOULD ESTABLISH THAT DEDUCTION IN CASE SEVERAL CONTRACTORS WERE MADE ON 31.3.2005. ALL SUCH AMOUN TS WERE DEPOSITED WITH THE GOVERNMENT ON OR AROUND 28.5.2005. IN BACKGR OUND OF ABOVE UNDISPUTED FACTS TRIBUNAL WAS OF THE OPINION THAT BY VIRTUE O F AMENDED PROVISIONS OF ITA NO. 1591/AHD/2011 M/S.RATNA DEVELOPERS VS. ITO ASST.YEAR - 2008-09 - 4 - SECTION 40 (A)(IA) OF THE INCOME TAX ACT 1961 ASS ESSEE HAS NOT BREACHED THE REQUIREMENT OF DEDUCTION AND DEPOSITING OF TDS. SECTION 40(A)(IA) OF THE ACT AS AMENDED WITH EFFECT FROM 1.4.2005 READ AS UNDER: (IA) ANY INTEREST COMMISSION OR BROKERAGE (REN T ROYALTY) FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICA L SERVICES PAYABLE TO A RESIDENT OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB -CONTRACTOR BEING RESIDENT FOR CARRYING OUT ANY WORK (INCLUDING SUPP LY OF LABOUR FOR CARRYING OUT ANY WORK) ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED O R AFTER DEDUCTION HAS NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFI ED IN SUB-SECTION (1) OF SECTION 139. PLAINLY SPEAKING ASSESSEE HAD TO MAKE DEDUCTION BE FORE 31 ST MARCH OF THE YEAR IN QUESTION AND AS LONG AS SUCH AMOUNTS WERE DEPOSITED BEFORE LAST DATE OF FILING OF THE RETURN REQUIREMENTS OF LAW WOULD BE FULFILLED. IT WAS ON THIS BASIS THAT TRIBUNAL WAS OF THE OPINION THAT THE ASSESSEE COMMITTED NO WRONG AND WAS THEREFORE ENTITLED TO SEEK DEDUCTION OF RS.32 94 1 49/- FROM THE INCOME WHICH AMOUNT THE ASSESSEE HAD DEDUCTED FROM PAYMENTS OF CONTRACTORS AND HAD ALSO DEPOSITED WITH REVENUE BEFORE THE LAST DATE OF FILING OF THE RETURN. WE DO NOT FIND ANY ILLEGALITY IN ORDER OF TRIBUNAL. TAX APPEAL IS THEREFORE DISMIS SED. 3.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E AO DID NOT HAVE THE BENEFIT THIS JUDGEMENT OF THE JURISDICTIONAL HIGH C OURT THROUGH WHICH THE PROVISIONS OF SECTION 40(A)(IA) HAVE NOW BEEN STREA MLINED. AS FAR AS THE DECISION OF THE RESPECTED SPECIAL BENCH MUMBAI IN THE CASE OF M/S BHARATI SHIPYARD LTD. ( ITA NO. 2404/MUM./2009 A.Y. 2005-06 DT.9.9.2011) IS CONCERNED THE SAME IS IN RESPECT OF THE AMENDMENT BROUGHT BY FINANCE ACT 2010 TO SEC. 40(A)(IA) THROUGH WHICH THE T.D.S. I S REQUIRED TO BE DEPOSITED BY THE DATE PRESCRIBED U/S 139 OF THE ACT IN SUCH CASE WHERE THE TDS IS DEDUCTED IN THE MONTH OF MARCH OF THE FINANCIAL YEAR. BUT IN RESPECT OF TDS IN ANY OTHER CASE ON OR BEFORE THE LAST DAY OF THE PREVIOUS YEAR RE QUIRED TO BE DEPOSITED. AFTER CAREFUL READING OF BOTH THE JUDGM ENTS THE A.O. IS NOW REQUIRED TO FIRST EXAMINE THE DATES OF DEDUCTION A ND THEN THE DATE OF DEPOSIT IN THE GOVT. THE OLD PROVISION SHALL APPLY BECAUSE THE SPECIAL BENCH HAS HELD THAT THE AMENDMENT IS NOT RETROSPECTIVE. NONETHELES S THE HONBLE H.C.( SUPRA ) HAS GIVEN A VERDICT ON THE ADMITTED FACT THAT THE T DS WAS DEDUCTED IN THE MONTH OF MARCH AND DEPOSITED IN THE MONTH OF MAY . DUE TO THIS REASON WE HEREBY RESTORE THIS PART OF THE GROUND BACK TO THE STAGE OF THE ASSESSMENT SO THAT AFTER VERIFYING THE PRESCRIBED DUE DATES OF DE POSIT AND THE DATES ON WHICH THE TDS HAD ACTUALLY BEEN DEPOSITED IN THE GOVERNME NT ACCOUNT BY THE ITA NO. 1591/AHD/2011 M/S.RATNA DEVELOPERS VS. ITO ASST.YEAR - 2008-09 - 5 - ASSESSEE THE AO SHALL GRANT THE RELIEF AS PER LAW. ASSESSEES GROUNDS ARE THEREFORE ALLOWED BUT FOR STATISTICAL PURPOSES. 4. IN REVENUES APPEAL I.E. ITA NO.3232/AHD/2009 THE FOLLOWING SUBSTANTIVE GROUND HAS BEEN RAISED:- 1) THE LD. COMMISSIONER OF INCOME-TAX (A)-XV AHM EDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISAL LOWANCE OF RS.45 12 343/- OUT OF TOTAL DISALLOWANCE OF RS.60 26 309/- MADE BY THE ASSESSING OFFICER U/S.40(A)(IA). 4.1. FACTS IN RESPECT OF REVENUES GROUN D HAVE ALREADY BEEN DISCUSSED SUPRA. THE ASSESSEE HAS FURNISHED THE D ETAILS OF THE BUILDING MATERIAL PURCHASED. THE ASSESSEE HAS ALSO FURNISH ED THE CONSTRUCTION ACCOUNT AND THE MATERIAL SUPPLIED BY THOSE PARTIES. THE B ILLS ISSUED ON DIFFERENT DATES BY THE SAID PARTIES AS PRODUCED BEFORE THE LOWER A UTHORITIES HAVE BEEN PLACED BEFORE US IN THE COMPILATION. IT IS EVIDENT THAT L D.CIT(A) HAS GIVEN A FACTUAL FINDING ABOUT THE PURCHASE OF BUILDING MATERIAL ET C. FROM THOSE PARTIES AND THE REVENUE HAS NOT CONTRADICTED THOSE FINDING BY PLACI NG ANY COGENT EVIDENCE HENCE WE FIND NO FORCE IN THIS GROUND OF REVENUE T HEREFORE IN THE RESULT DISMISSED. 6. ON THE SAME LINES WE HEREBY RESTORE THIS ISSUE BACK TO THE STAGE OF THE ASSESSING OFFICER TO VERIFY THE DATES OF DEDUCT ION OF TDS AND THE DATE ON WHICH IT WAS DEPOSITED IN THE GOVERNMENT AC COUNT AND THEREAFTER FOLLOWING THE LAW LAID DOWN BY THE HONBLE JURISDIC TIONAL HIGH COURT ALLOW THE CLAIM AS PER LAW. GROUNDS RAISED BY THE ASSESSEE ARE THEREFORE ALLOWED IN TERMS REFERRED SUPRA. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREAT ED AS ALLOWED BUT FOR STATISTICAL PURPOSES. SD/- SD/- (A. MOHAN ALANKAMONY) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 18/ 11 /2011 4..$ .$../ T.C. NAIR SR. PS ITA NO. 1591/AHD/2011 M/S.RATNA DEVELOPERS VS. ITO ASST.YEAR - 2008-09 - 6 - %3 0 -5 6%5( %3 0 -5 6%5( %3 0 -5 6%5( %3 0 -5 6%5(/ COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT 2. -.) / THE RESPONDENT. 3. !! 7 / CONCERNED CIT 4. 7() / THE CIT(A)-XV AHMEDABAD 5. 5:; -$ / DR ITAT AHMEDABAD 6. ; <1 / GUARD FILE. %3$ %3$ %3$ %3$ / BY ORDER .5 - //TRUE COPY// = == =/ // / !* !* !* !* ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD 1. DATE OF DICTATION..04.11.11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.11.11 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 D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 18.11.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 18.11.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER