Gujarat Containers Ltd.,, Baroda v. The Dy.CIT.,Circle-1(1),, Baroda

ITA 736/AHD/2009 | 2005-2006
Pronouncement Date: 15-07-2011 | Result: Allowed

Appeal Details

RSA Number 73620514 RSA 2009
Assessee PAN AAACG8373R
Bench Ahmedabad
Appeal Number ITA 736/AHD/2009
Duration Of Justice 2 year(s) 4 month(s) 11 day(s)
Appellant Gujarat Containers Ltd.,, Baroda
Respondent The Dy.CIT.,Circle-1(1),, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 15-07-2011
Date Of Final Hearing 07-07-2011
Next Hearing Date 07-07-2011
Assessment Year 2005-2006
Appeal Filed On 05-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MUKUL SHRAWAT JUDICIAL MEMBER AND SHRI A. K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.736 / AHD/2009 (ASSESSMENT YEAR 2005-06) GUJARAT CONTAINERS LTD. 201/202 ALKAPURI ARCADE R.C. DUTT ROAD BARODA VS. DCIT CIRCLE 1(1) BARODA PAN/GIR NO. : AAACG8373R (APPELLANT) .. (RESPONDENT) APPELLANT BY: SMT. URVASHI SHODHAN AR RESPONDENT BY: SHRI B.L. YADAV DR O R D E R PER SHRI A. K. GARODIA AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF CIT(A) I BARODA DATED 02.01.2009 FOR THE ASSESSMENT YEAR 20 05-06. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: THE LEARNED DY. COMMISSIONER OF INCOME TAX HAS ER RED IN LAW AND ON THE FACTS OF THE APPELLANT'S CASE IN ASSESSI NG THE TOTAL LOSS OF THE APPELLANT AT RS.39 06 555/- INSTEAD OF RS.47 37 250/- RETURNED BY THE APPELLANT. THE APPELLANT MOST HUMBLY SUBMITS THAT ALL THE ADDI TIONS MADE BY THE LEARNED DY. COMMISSIONER OF INCOME TAX ARE ERRO NEOUS AND CONTRARY TO THE FACTS OF THE CASE AS WELL AS PROVIS IONS OF LAW. THE APPELLANT FURTHER SUBMITS THAT THE LOSS RETURNED BY IT IS THE CORRECT AND PRAYS THAT HON'BLE TRIBUNAL BE PLEASED TO HOLD SO NOW AND DELETE ALL THE ADDITIONS MADE. THE LEARNED DY. COMMISSIONER OF INCOME TAX HAS ERRE D IN LAW AND ON THE FACTS OF THE APPELLANT'S CASE IN DISALLOWING RS.5 80 758/- BEING CONTRIBUTION TO P.P. F.P.F. & E.S.I.C U/S. 3 6(1)(VA) R.W.S. 2(24)(X) OF THE ACT ON THE ERRONEOUS PLEA THAT IT H AS BEEN PAID LATE. I.T.A.NO. 736 /AHD/2009 2 THE APPELLANT MOST HUMBLY SUBMITS THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW NO PART OF THE SAID AMOUNT IS DISALLOWABLE U/S. 36(1)(VA)/43B OF THE ACT. IN VIEW THEREOF THE APPELLANT MOST HUMBLY SUBMITS THAT THE DISALLOWANCE MADE BY THE LEARNED DY. COMMISSIONER O F INCOME TAX REQUIRES TO BE DELETED AND PRAYS THAT HON'BLE T RIBUNAL BE PLEASED TO HOLD SO NOW. THE LEARNED DY. COMMISSIONER OF INCOME TAX OFFICER HAS ERRED IN LAW AND ON FACTS OF THE APPELLANT'S CASE IN DISALLO WING RS.2 28 9347- U/S. 40(A)(IA) OF THE ACT ON THE ERRO NEOUS PLEA THAT THE APPELLANT HAS PAID TDS ON CONTRACT AMOUNT BEYON D THE DATE. THE APPELLANT MOST HUMBLY SUBMITS THAT ON THE FACTS AND CIRCUMSTANCES OF ITS CASE AND IN LAW NO PART OF THE SAID EXPENDITURE IS DISALLOWABLE U/S. 40(A)(IA) OF THE ACT. IN VIEW THERE OF THE APPELLANT MOST HUMBLY SUBMITS THAT NO PART OF THE SAID EXPENSE IS DISALLOWABLE AND PRAYS THAT THE HON'BLE TRIBUNAL BE PLEASED TO HOLD SO NOW AND ALLOW THE SA ME IN FULL. 2. IT WAS SUBMITTED BY THE LD. A.R. THAT GROUND NO. 1 IS GENERAL. 3. REGARDING GROUND NO.2 IT WAS SUBMITTED THAT THI S ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05 IN I.T.A. NO. 2609/ AHD/2008 DATED 02.03.2009. HE SUBMITTED A COPY OF THE TRIBUNAL DE CISION AND POINTED OUT THAT THE TRIBUNAL HAS FOLLOWED THE JUDGMENT OF HON' BLE HIGH COURT OF DELHI RENDERED IN THE CASE OF CIT VS P.M. ELECTRONI CS LTD. 220 CTR 635 (DEL.) AND THE DECISION OF HON'BLE HIGH COURT OF BO MBAY RENDERED IN THE SE OF CI T VS PAMWI TISSUES 215 CTR (BOM.) 150. IT IS ALSO SUBMITTED THAT NOW THE ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS A LOM EXTRUSIONS LTD. 319 ITR 306 (S.C.). 4. REGARDING GROUND NO.3 IT WAS SUBMITTED THAT IN THE PRESENT CASE THE TDS WAS PAID BY THE ASSESSEE ON 08.04.2008 AND HENCE THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBU NAL DECISION RENDERED IN THE CASE OF HETALKUMAR INDRAVADAN SHAN VS ACIT IN I .T.A. NO. I.T.A.NO. 736 /AHD/2009 3 227/AHD/2009 DATED 07/06/2011. HE SUBMITTED A COPY OF THE TRIBUNAL DECISION. IT WAS ALSO SUBMITTED BY HER THAT IN THA T CASE THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A. O. FOR THE REASON THAT FACTS WERE NOT AVAILABLE IN THAT CASE AS TO WHETHER TDS WAS DEPOSITED WITHIN THE DUE DATE OF FILLING OF RETURN BUT A CLEA R DIRECTION WAS GIVEN BY THE TRIBUNAL THAT DISALLOWANCE SHOULD BE MADE WHERE EITHER NO TDS WAS DEDUCTED OR AFTER DEDUCTION THE SAME IS NOT DEPOSI TED BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. IT IS SUBMITTED T HAT IN THE PRESENT CASE THIS FACT IS AVAILABLE ON RECORD THAT TDS IN QUESTI ON WAS PAID BY THE ASSESSEE ON 08.04.2005 AND HENCE DISALLOWANCE IN T HE PRESENT CASE SHOULD BE DELETED. 5. AS AGAINST THIS LD. D.R. SUPPORTED THE ORDERS O F AUTHORITIES BELOW WITH REGARD TO BOTH THE ISSUES. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. REGARDING THE 1 ST ISSUE I.E. THE ISSUE INVOLVED IN GROUND NO.2 WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY TH E TRIBUNAL DECISION IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 200 4-05. MOREOVER NOW THIS ISSUE IS ALSO COVERED BY THE JUDGMENT OF HONB LE APEX COURT RENDERED IN THE CASE OF CIT VS ALOM EXTRUSIONS LTD. (SUPRA). RESPECTFULLY FOLLOWING THE PRECEDENT WE DELETE THE DISALLOWANCE/ADDITION MADE BY THE A.O. WITH REGARD TO DELAYED PAYMENT OF EMPLOYEES CONTRIBUTION OF PF & ESI. 7. SIMILARLY WITH REGARD TO DISALLOWANCE MADE BY T HE A.O. U/S 40(A)(IA) WE FIND THAT THE FACT IS NOTED BY THE LD . CIT(A) THAT TDS IN QUESTION WAS PAID BY THE ASSESSEE ON 08.04.2005 WHI CH IS MUCH BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. NOW IN THE LIGHT OF THESE FACTS WE EXAMINE THE APPLICABILITY OF THE TRIBUNAL DECISION RENDERED IN THE CASE OF HETALKUMAR INDRAVADAN SHAH (SUPRA). IN THA T CASE ALSO THE I.T.A.NO. 736 /AHD/2009 4 ASSESSMENT YEAR INVOLVED WAS 2005-06 AND THE TRIBUN AL FOLLOWED ITS EARLIER DECISION RENDERED IN THE CASE OF KANUBHAI RAMJIBHAI MAKWANA IN I.T.A. NO. 3983/AHD/2008 DATED 3.12.2010 WHEREIN I T WAS HELD THAT AMENDMENT IN SECTION 40(A)(IA) BY THE FINANCE ACT 2 010 IS RETROSPECTIVE IN NATURE. IT IS ALSO NOTED BY THE TRIBUNAL IN THE CASE OF HETALKUMAR INDRAVADAN SHAH (SUPRA) THAT NO CONTRARY DECISION IS BROUGHT TO THE NOTICE OF THE TRIBUNAL. IN THE PRESENT CASE ALSO NO CONTRARY DECISION HAS BEEN BROUGHT TO OUR NOTICE AND HENCE WE ARE DUTY B OUND TO FOLLOW THE ABOVE TRIBUNAL DECISION. IN THIS CASE IT WAS HELD BY THE TRIBUNAL THAT NO DISALLOWANCE U/S 40(A)(IA) SHOULD BE MADE IF IT IS FOUND THAT THE PAYMENT OF TDS WAS MADE BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. IN THE PRESENT CASE TDS HAS BEEN PAID BY THE ASSESSEE ON 08.04.2005 WHICH IS MUCH BEFORE THE DUE DATE OF FI LING OF RETURN OF INCOME AND HENCE RESPECTFULLY FOLLOWING THE TRIBUN AL DECISION CITED ABOVE WE HOLD THAT DISALLOWANCE MADE BY THE A.O. I S NOT JUSTIFIED AND HENCE THE SAME IS DELETED. THE GROUNDS NOS. 2 AND 3 ARE ALLOWED. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 15TH JULY 2011. SD./- SD./- (MUKUL SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 15 TH JULY 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD 6. THE GUARD FILE I.T.A.NO. 736 /AHD/2009 5 1. DATE OF DICTATION 13/7 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13/7 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 14/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 15/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 15/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15/7/11 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. ..