Income Tax Appellate Tribunal - Ahmedabad
Thakorbhai Chhaganbhai Kapadi, Vapi vs Department Of Income Tax on 21 May, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD
"D" BENCH
Before: Shri A.K. Garodia, Accountant Member and
Shri Kul Bharat, Judicial Member
I.T.A. No.331/Ahd/2010
A. Y. 2006-07
Income Tax Sh. Thakorbhai Chhag anb hai Kap adi
Officer, Vap i Prop:-Shree Sainath Transport Co.,
Ward-3 Vs Amli, Silvassa
Vap i PAN-ADPTK8301Q
Appellant Respondent
Department by : Shri B.L. Yadav, Sr. D.R.
Assessee by : Shri R.M. Upadhyay, A.R.
Date of hearing : 21.05.2012
Date of pronouncement 28.06.2012
आदे श/ORDER
PER : A.K. Garodia, Accountant Member
This is Revenue's appeal against the order of Ld. CIT(A), Valsad dated 08.09.2009 for the assessment year 2006-07.
2. The ground raised by the Revenue is as under:-
"On the facts and circumstances of the case, and in law, the Ld. CIT(A) has erred deleting the addition u/s 40(a)(ia) of Rs.21,34,327/-, is clear contravention of the provisions of Rule 46A."
3. Ld. D.R. of the Revenue supported the assessment order. He also submitted that Ld. CIT(A) has decided this issue by way of very cryptic order and I.T.A. No.331/Ahd/2010 2 A. Y. 2006-07 therefore, the matter may be restored back to his file or to the A.O. for a fresh decision. Ld. A.R. of the assessee supported the order of Ld. CIT(A).
4. We have considered the rival submissions and perused the material available on record and gone thorough the order of the authorities below. We find that disallowance was made by the A.O. u/s 40(a)(ia) in respect of payment to six parties on account of transport payment without deduction of TDS. Ld. CIT(A) has decided the issue in favour of the assessee on the basis that in view of the provisions of Section 44AE of the I.T. Act, no TDS was required to be deducted u/s 194C because it was the submission of the assessee before Ld. CIT(A) that none of the transporters to whom the transport charges are paid owns more than two vehicles. The order passed by Ld. CIT(A) is very cryptic as per para 4.4 of his order which is reproduced below:-
"I have considered the written submission made by the AR of the appellant as well as observation of the AO in the assessment order. I found AO invoked the provisions of Section 40(a)(ia) in terms of magnitude of the transactions, whereas the AR of the appellant raising very rightly the issues of provisions of section 194C and section 44AE of the Act, filing an affidavit of the payees, the addition is therefore, Deleted."
5. From the above para of the order of Ld. CIT(A) we find that he has simply deleted the addition by holding that the A.R. of the assessee has rightly raised the issue of provisions of 194C and Section 44AE of the I.T. Act by filing an affidavit of the payees without discussing anything as to whether there is any provision in Section 194C for not deducting TDS by considering the provisions of Section 44AE. Even the copy of the affidavit of the persons have not been brought on record before us. It is also stated by the A.O. in the statement of I.T.A. No.331/Ahd/2010 3 A. Y. 2006-07 facts filed before us that these affidavits which were produced before the Ld. CIT(A) were never produced before the A.O.
6. Considering all aspects of the present case, we feel it proper that in the interest of justice, this matter should go back to the file of the A.O. for afresh decision. We, therefore, set aside the order of Ld. CIT(A) and restore the matter back to the file of the A.O. to decide the matter afresh and pass necessary order as per law after providing adequate opportunity of being heard to the assessee without being guided by the impugned order passed by Ld. CIT(A) dated 08.09.2009. We also do not make any comment on the issue in dispute because various contentions raised before Ld. CIT(A) were not raised before the A.O. and order of Ld. CIT(A) is cryptic.
7. In the result, appeal of the Revenue stands allowed for statistical purpose.
Order pronounced in open Court on 28.06.2012
Sd/- Sd/-
(Kul Bharat) (A.K. Garodia)
Judicial Member Accountant Member
True copy
N.K. Chaudhary, Sr. P.S.
आदे श कȧ ूितिलǒप
ूितिलǒप अमेǒषत / Copy of Order Forwarded to:-
1. अपीलाथȸ / Appellant
2. ू×यथȸ / Respondent
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ- अपील / CIT (A)
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाइल / Guard file.
By order/आदे श से, उप/सहायक पंजीकार आयकर अपीलीय अिधकरण,अहमदाबाद ।