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Income Tax Appellate Tribunal, AHMEDABAD “A” BENCH
Before: Shri Rajpal Yadav & Shri Amarjit Singh
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH Before: Shri Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member ITA No. 2061/Ahd/2017 Assessment Year 2005-06
The ITO, Vishal Madhusudan Ward-6(1)(3), Choksi, Prop. of Ahmedabad Vs Shreenath Transport (Appellant) 3-A, Sarvoday Society, Nr. Jawahar Chauk, Maninagar, Ahmedabad PAN: AAYPC9709J (Respondent)
Revenue by: Shri S.K. Dev, Sr. D.R. Assessee by: None Date of hearing : 14-02-2019 Date of pronouncement : 21-02-2019 आदेश/ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
This revenue’s appeal for A.Y. 2005-06, arises from order of the CIT(A)-3, Ahmedabad dated 07-06-2017, in proceedings under section 143(3) of the Income Tax Act, 1961; in short “the Act”.
I.T.A No. 2061/Ahd/2017 A.Y. 2005-06 Page No 2 ITO vs. Vishal Madhusudan Choksi Prop. of Shreenath Transport
The solitary ground of appeal of the revenue is against the order of ld. CIT(A) in deleting the disallowance of Rs. 2,89,98,110/- u/s. 40(a)(ia) of the act.
The fact in brief is that assessee has filed return of income for assessment year 2005-06 on 29th Oct, 2015 declaring total income at Rs. 10,37,640/-. Subsequently, the case was selected under scrutiny by issuing of notice u/s. 143(2) of the act on 28th June, 2006. During the assessment, the assessing officer has noticed that assessee has made TDS u/s. 194C in respect of fright receipt totaling to Rs. 2,89,98,110/- and deposited the TDS into govt. account on 31st May, 2005. The assessing officer was of the view that that the payment was made to transport contractor throughout the year. However, the TDS deducted at the end of the year and the amount was deposited into the govt. account on 31st May, 2005. The assessing officer was of the view that TDS should have been deposited by 7th each of the following month instead of making payment on 31st May, 2005. Consequently, the assessing officer has disallowed the entire transport payment of Rs. 2,89,98,110/- on the ground that TDS has not been made at the time of making payment to transport contractor or after making payment the TDS deducted has not been deposited into govt. account before the expiry of time prescribed under sub-section 1 of section 200 of the I.T. act.
Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has allowed the appeal of the assessee.
I.T.A No. 2061/Ahd/2017 A.Y. 2005-06 Page No 3 ITO vs. Vishal Madhusudan Choksi Prop. of Shreenath Transport
During the course of appellate proceedings before us nobody has attended on behalf of the assessee.
We have heard the ld. DR and perused the material on record carefully. On perusal of the material on record, we have noticed that ld. CIT(A) has allowed the appeal of the assessee stating that assessee had deposited the TDS on or before 31st May, 2005 i.e. before the due date of filing of return of income. This issue also covered by the decision of Hon’ble Gujarat High Court in the case of Om Prakash R. Chaudhary (2015) 57 taxmann.com 38 (Guj). Relevant part of decision of ld. CIT(A) is reproduced as under:- “3.1 Decision: The first effective ground of appeal relates to the disallowance of freight charges of Rs.2,89,98,110/-. During the course of assessment proceeding, the AO found that the appellant has not made IDS on payments towards freight charges and therefore he disallowed the entire freight charges expenditure under section 40(a)(ia). The peculiar fact is that the appellant preferred writ petition before the Hon'ble Gujarat High Court being Special civil application No.6462 of 2008. This writ petition had been admitted by the Hon'ble High Court vide its order dtd.22.04.2008 and interim stay at been granted to the appellant. It was expressly ordered by the honourable Hicjh Court as under: it is hereby accordingly order that you [i.e. respondents], your servants and agents he and are hereby directed to maintain status-quo in the matter and ask them and its subordinates not to take any action or to do anything in furtherance and pursuance of the order of assessment dated 26.12.2007 passed by you [i.e. Jt. Commissioner of income tax, 2'1CI floor, Vasupujya Chambers, Ashram Road,, Ahmedabad]. Including the demand raised thereby as well as the appeal filed before CIT(A) should not be taken up for final hearing and disposal' Therefore, this appeal has been kept in abeyance. However, now the Hon'ble High Court take up this matter at the earliest as it is involving a high pitch disallowance and being a very old matter. 3.2 'I'he Hon'hle High Court vide its order cltd.14.11.2016 held as under : '3. It is reported that by a detailed judgement and order'passed by the division bench of this Court in case of Commissioner of income tax, Ahmedabad -IV v. Omprakash R. Chaudhary, [(2015) 57 taxmann.com 38 (Gujarat)], the division bench has held that the amendment made in section 40(a)(ia) by Finance Act, 2010, would be retrospective in operation having effect from f April, 2005, i.e. from (he dare insertion of section 40(a)(ia) of the Act It is reported that the said decision has been confirmed by the Hon'hle Supreme Court'. 4. In view of the above and for the reason stated in the decision of this Court in the case Omprakash R. Chaudhary (supra), all these petitions stand disposed off in terms of the judgement and order passed by the division bench of this Court passed in Omprakash R. Chaudhary (supra). The parties govern by the decision of the division bench of this Court in the case of Omprakash R. Chaudhary (supra). 5 In view of tiie above, all these petitions stand disposed off accordingly.'
I.T.A No. 2061/Ahd/2017 A.Y. 2005-06 Page No 4 ITO vs. Vishal Madhusudan Choksi Prop. of Shreenath Transport
Before me, during the course of appellate proceedings, the AR of the appellant explained that the appellant had made IDS on various payments on 31.03.2005 i.e. on the last day of the financial year. But it was deposited in the account of the revenue by 31.05.2005 which was categorically accepted by the AO in para 3.1 page 2 of the assessment order. The AR contented that as per the judgement of the jurisdictional High Court in appellant's own case, the appellant has not violated the provisions of Section 40(a)(ia). On perusal of the written submissions and documents submitted before me, 1 came to know that the due date for filing return of income for the appellant for the impugned year was^3Q.09.2005. At the other outset, the appellant had deposited the TDS on or before 31.05.2005 i.e. before the due date of filing return of income. Thus, the issue stands covered by the decision of Hon'ble Gujarat High Court in case of the appellant and therefore, no disallowance is warranted. It is therefore, this ground of appeal of the appellant is allowed.” 7. During the course of appellate proceedings before us, the ld. departmental representative could not controvert the aforesaid elaborated findings of ld. CIT(A), therefore, in view of the above facts, we do not find any infirmity in the decision of ld. CIT(A). Accordingly, the appeal of the revenue is dismissed.
In the result, the appeal of the revenue is dismissed. Order pronounced in the open court on 21-02-2019 Sd/ Sd/- (RAJPAL YADAV) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 21/02/2019 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद