M/s. G.R.G.Construction co,, Srinagar (J&K) v. The Dy. Commissioner of Income-tax.,, Srinagar

ITA 223/ASR/2013 | 2009-2010
Pronouncement Date: 09-10-2013 | Result: Allowed

Appeal Details

RSA Number 22320914 RSA 2013
Assessee PAN AAGFG2677K
Bench Amritsar
Appeal Number ITA 223/ASR/2013
Duration Of Justice 5 month(s) 29 day(s)
Appellant M/s. G.R.G.Construction co,, Srinagar (J&K)
Respondent The Dy. Commissioner of Income-tax.,, Srinagar
Appeal Type Income Tax Appeal
Pronouncement Date 09-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 09-10-2013
Date Of Final Hearing 09-10-2013
Next Hearing Date 09-10-2013
Assessment Year 2009-2010
Appeal Filed On 10-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU JUDICIAL MEMBER AND SH. B.P. JAIN ACCOUNTANT MEMBER I.T.A. NO. 223 (ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAGFG2677K M/S G.R.G. CONSTRUCTION CO. VS. DY. COMMISSION ER OF INCOME DABTAL ZAINA KADAL SRINAGAR(J&K) TAX CIRCLE-3 SRINAGAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. M.R. BHAGAT ITP & SH. SHIVEIN SEHGAL ADVOCATE RESPONDENT BY: SH. TARSEM LAL DR DATE OF HEARING: 09.10.2013 DATE OF PRONOUNCEMENT: 09.10.2013 ORDER PER BENCH 1) THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 07.02.2013 PASSED BY LEARNED CIT(A) JA MMU FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS: I. THE APPELLATE ORDER IS ILLEGAL PERVERSE ARBITRARY NOT BASED ON THE FACTS OF THE CASE ESPECIALLY BECAUSE DUE TO TURMOIL IN THE VALLEY OF KASHMIR THE REQUEST TO ADJOURN THE APPEAL COULD NO T REACH IN TIME AND THE LAW INVOLVED IN THE ISSUE DISCUSSED IN THE ASSESSMENT ORDER. II. THE LEARNED CIT(APPEALS) ERRED IN CONFIRMING RATE O F 10% APPLIED BY THE ASSESSING OFFICER ON THE GROSS CONTRACT RECE IPTS IGNORING THE FACT THAT THE APPELLANT WAS A SUB-CONTRACTOR AND HA D DECLARED INCOME AFTER GETTING THE ACCOUNTS AUDITED AS PROVID ED U/S 44AB OF 2 I.T.A. NO. 223 (ASR)/2013 ASSESSMENT YEAR: 2009-10 THE INCOME TAX ACT 1961 AND FINDINGS OF THE ASSESS ING OFFICER THAT PAYMENT MADE TO THE PARTNERS OF THE FIRM FOR P AYMENT OF LABOUR WERE LIABLE TO TDS. IT IS PRAYED THAT RATE O F 3.91% DECLARED BY THE APPELLANT MAY BE CONSIDERED AS REASONABLE AN D THE ADDITION MADE MAY KINDLY BE DELETED. III. THE LEARNED ASSESSING OFFICER ERRED IN CONFIRMING T HE DISALLOWANCE OF INTEREST AND SALARY PAID TO THE PAR TNERS IGNORING THAT THE PARLIAMENT HAS FIXED A LIMIT ON THE DEDUCT ION TO BE ALLOWED TO A FIRM IN RESPECT OF REMUNERATION TO WORKING PAR TNERS AND IF THE REMUNERATION IS WITHIN THE CEILING RECOURSE TO THE PROVISION OF SECTION 40A(2)(A) OF THE ACT IS NOT PERMISSIBLE. T HE A.O. IS ONLY REQUIRED TO SEE WHETHER THE PARTNERS ARE WORKING PA RTNERS AND WHETHER THE REMUNERATIONS ARE WITHIN THE LIMITS PRE SCRIBED U/S 40(B)(V) AND IN RESPECT OF INTEREST WITHIN THE LIMI TS PRESCRIBED U/S 40(B)(IV) OF THE ACT. IT IS PRAYED THAT INTEREST AN D SALARY PAID TO THE PARTNERS AMOUNTING TO RS. 34 76 466/- MAY BE ALLOW ED. IV. THE LEARNED CIT(APPEALS) WAS NOT JUSTIFIED IN NOT C ONSIDERING THE CLAIM OF TAX DEDUCTED AT SOURCE AND ISSUE APPROPRIA TE INSTRUCTIONS TO THE ASSESSING OFFICER TO ALLOW CREDIT OF RS. 10 81 181/- AGAINST THE DEMAND AND AMEND THAT ACCORDINGLY. V. THE APPELLANT CRAVES LEAVE TO AMEND ANY GROUND(S) O F APPEAL OR ADD ANY NEW GROUND(S) OF APPEAL BEFORE THE APPEAL I S FINALLY HEARD. 2) THE FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFORE THERE IS NO NEED TO RE PEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3) AT THE TIME OF HEARING LEARNED COUNSEL FOR THE ASSESSEE STATES THAT LEARNED FIRST APPELLATE AUTHORITY HAS NOT GIVE N REASONABLE OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM BEFORE HIM AND DISMISSED THE APPEAL EX-PARTE WHICH IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE. THEREFORE HE REQUESTED THAT THE I MPUGNED ORDER PASSED 3 I.T.A. NO. 223 (ASR)/2013 ASSESSMENT YEAR: 2009-10 BY LEARNED CIT(A) JAMMU MAY BE CANCELLED AND THE ISSUE IN DISPUTE MAY BE SET ASIDE TO LEARNED CIT(A) TO DECIDE THE SA ME AFRESH UNDER THE LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 4) ON THE CONTRARY LEARNED DR RELIED UPON THE ORDER PASSED BY LEARNED FIRST APPELLATE AUTHORITY. 5) WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORD AVAILABLE WITH US SPECIALLY THE IMPUGNED ORDER PAS SED BY LEARNED FIRST APPELLANT AUTHORITY. WE FIND THAT THE LEARNED FIRST APPELLANT AUTHORITY FIXED THE APPEAL FOR HEARING THREE TIMES BUT THE AS SESSEE DID NOT CO- OPERATE IN THE APPELLATE PROCEEDINGS AND THE LEARNE D FIRST APPELLATE AUTHORITY DISMISSED THE APPEAL OF THE ASSESSEE BY H OLDING THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. BUT TODAY I.E. 09.10.2013 THE AUTHORIZED REPRESENTATIVE OF THE AS SESSEE APPEARED AND STATED THAT THE ASSESSEE IS VERY MUCH INTERESTED TO PROSECUTE THE MATTER IN DISPUTE BEFORE LEARNED FIRST APPELLATE AUTHORITY AN D REQUESTED THAT THE OPPORTUNITY MAY BE GIVEN FOR SUBSTANTIATING ITS CLA IM BEFORE THE LEARNED FIRST APPELLATE AUTHORITY. 6) KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE AND IN THE INTEREST OF JUSTICE WE ARE OF THE CONSI DERED VIEW THAT THE ISSUE DESERVES TO BE SET ASIDE TO LEARNED CIT(A) JAMMU FOR DECIDING THE SAME 4 I.T.A. NO. 223 (ASR)/2013 ASSESSMENT YEAR: 2009-10 AFRESH UNDER THE LAW. ACCORDINGLY IN THE INTEREST OF JUSTICE WE CANCEL THE IMPUGNED ORDER DATED 07.02.2013 PASSED BY LEARNED C IT(A) JAMMU AND SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF LEARN ED CIT(A) JAMMU TO DECIDE THE SAME AFRESH UNDER THE LAW AFTER AFFORDIN G FULL OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CLAIM. IT IS AL SO MADE CLEAR THAT THE ASSESSEE WILL NOT TAKE ANY UNNECESSARY ADJOURNMENT AND WILL FULLY CO- OPERATE IN THE APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) JAMMU AND IF IT DOES NOT DO SO THE LEARNED CIT(A) JAMMU IS AT LIBERTY TO DECIDE THE CASE EX PARTE . 7) IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH OCTOBER 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH OCTOBER 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S G.R.G. CONSTRUCTION CO. DABTAL ZA INA KADAL SRINAGAR(J&K) 2. DY. COMMISSIONER OF INCOME TAX CIRCLE-3 SRINAGAR 3. THE CIT(A) JAMMU 4. THE CIT JAMMU 5. THE SR DR I.T.A.T. ASR TRUE COPY BY ORDER 5 I.T.A. NO. 223 (ASR)/2013 ASSESSMENT YEAR: 2009-10 (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.