M/s Apala Construction & Developers (P) Ltd., Lucknow v. The Income Tax Officer-I(2), Lucknow

ITA 731/LKW/2013 | 2009-2010
Pronouncement Date: 28-11-2014 | Result: Allowed

Appeal Details

RSA Number 73123714 RSA 2013
Assessee PAN AABCA7719A
Bench Lucknow
Appeal Number ITA 731/LKW/2013
Duration Of Justice 1 year(s) 19 day(s)
Appellant M/s Apala Construction & Developers (P) Ltd., Lucknow
Respondent The Income Tax Officer-I(2), Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 28-11-2014
Date Of Final Hearing 16-09-2014
Next Hearing Date 16-09-2014
Assessment Year 2009-2010
Appeal Filed On 08-11-2013
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.731/LKW/2013 ASSESSMENT YEAR:2009 - 10 INCOME TAX OFFICER - 1(2) LUCKNOW. VS M/S APALA CONSTRUCTION & DEVELOPERS (P) LTD. 86 SUBHASH MARG LUCKNOW. PAN:AABCA7719A (RESPONDENT) (APPELLANT) SHRI A. P. SINHA ADVOCATE APPELLANT BY SHRI AMIT NIGAM D. R. RESPONDENT BY 16/09/2014 DATE OF HEARING 28 /11/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I LUCKNOW DATED 07/08/2013 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LEARNED C.I.T. (APPEALS) - I LUCKNOW ERRED WHILE SUSTAINING THE DISALLOWANCE OF RS.50 124.00. 1(I) THE LEARNED C.I.T. (APPEALS) - I LUCKNOW ERRED WHILE NOT CONSIDERING THAT DISALLOWANCE U/S 40 (A) (IA) OF THE INCOME TAX ACT 1961 CANNOT BE MAD E IN THE CASE OF PAYMENT WHICH HAS ALREADY BEEN MADE AND IS NOT OUTSTANDING. 1(II) THE LEARNED C.I.T. (APPEALS) - I LUCKNOW FAILED TO APPRECIATE THAT THE AMOUNT OF RS.50 124.00 WAS PAID FOR THE SUPPLY OF MATERIAL ON WHICH PROVISION OF T.D.S. ARE NOT APPLICABLE. 2 1(III) THE LEARNED C.I.T. (APPEALS) - I LUCKNOW ERRED WHILE SUSTAINING THE DISALLOWANCE BY HOLDING 'THE APPELLANT HAS NOT BEEN ABLE TO PROVE THAT THE CONTRACTOR/PAYEE WAS IN BUSINESS OF MANUFACTURING/SUPPLYING OF BUILDING MATERIAL.. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007 - 08 IN I.T.A. NO.34/LKW/2012 DATED 20/06/2012 AND COPY OF THE TRIBUNAL ORDER IS AVAILABLE ON PAGES 8 TO 10 OF THE P APER BOOK. HE FURTHER SUBMITTED THAT IN THAT YEAR THE MATTER WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AND THEREFORE IN THE PRESENT YEAR ALSO THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION W ITH SIMILAR DIRECTION. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE INVOLVED IS SAME. IN ASSESSMENT YEAR 2007 - 08 THE TRIBUNAL IN ASSESSEES OWN CASE H AS RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE FOLLOWING DIRECTIONS AS PER PARA 5 OF THE TRIBUNAL ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5. ACCORDING TO THE AFORESAID PROVISION AN ASSESSEE IS REQUIRED TO DEDUCT TAX ON THE WHOLE OF THE INVOICE VALUE WHERE THE VALUE OF MATERIAL IS NOT MENTIONED SEPARATELY IN THE INVOICE. IT HOWEVER APPEARS THAT THE ASSESSEE HAS LAID ON RECORD THE RUNNING BILL S OF THE CONTRACTOR BEFORE ANY PAYMENT WAS MADE BY THE APPELLANT TO HIM. THE ASSESSING OFFICER HOWEVER DID NOT RECORD SATISFACTION THAT THE INVOICE PRODUCED BEFORE HIM DID NOT MENTION THE VALUE OF MATERIAL. THAT BEING SO AND IN CASE THE VALUE OF MATERI AL IS FOUND MENTIONED IN THE INVOICE THE ASSESSEE SHALL NOT BE LIABLE TO DEDUCT TAX AT SOURCE ON THE VALUE OF SUCH MATERIAL INCLUDED IN THE INVOICE VALUE. THIS FACTUAL VERIFICATION HAS NOT BEEN MADE BY THE AUTHORITIES BELOW BEFORE PROCEEDING TO MAKE THE DISALLOWANCE OF WHOLE AMOUNT. WE THEREFORE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER BACK TO THE 3 ASSESSING OFFICER FOR MAKING VERIFICATION OF FACTS AFRESH AND TAKE DECISION IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE AND EFFECTIVE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. 6. ACCORDINGLY IN THE PRESENT YEAR ALSO WE SET ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION WITH THE SAME DIRECTIONS AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: /11/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R. I.T.A.T. LUCKNOW ASSTT. REGISTRAR