M/s. Shri Shanmugar Services, CHENNAI V. ACIT, CHENNAI

CO 190/CHNY/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8469 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 18-04-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V JAGADISAN
• Assessee Lawyers: N MADHAVAN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE DR. O.K.NARAYANAN, VICE PRESIDENT AND SHRI S.S. GODARA, JUDICIAL MEMBER] I.T.A.NO.1873/MDS/2012 ASSESSMENT YEAR : 2009-2010 THE INCOME TAX OFFICER BUSINESS WARD II (4) CHENNAI 600 034. VS M/S. SRI SHANMUGAR SERVICES NO.22, THIRU. VI.KA 3 RD STREET MYLAPORE, CHENNAI 600 004 . [PAN AABFS 5053L] (APPELLANT) (RESPONDENT) C.O.NO.190/MDS/2012 ASSESSMENT YEAR: 2009-10 M/S. SRI SHANMUGAR SERVICES NO.22, THIRU. VI.KA 3 RD STREET MYLAPORE, CHENNAI 600 004 . VS THE INCOME TAX OFFICER BUSINESS WARD II (4) CHENNAI 600 034. (CROSS OBJECTOR) (RESPONDENT) APPELLANT BY : SHRI. N. MADHAVAN, JCIT. RESPONDENT BY : SHRI. V. JAGADISAN, C.A. DATE OF HEARING : 18-04-2013 DATE OF PRONOUNCEMENT : 18-04-2013 O R D E R PER S.S. GODARA, JUDICIAL MEMBER THIS APPEAL BY THE REVENUE AND CROSS OBJECTIONS AT THE BEHEST OF THE ASSESSEE, EMANATE FROM THE ORDER OF THE COMM ISSIONER OF I.T.A.NO.1873/MDS/2012 :- 2 -: INCOME TAX (APPEALS)-IX, CHENNAI DATED 31.07.2012 I N ITA NO. 231/11-12, FOR ASSESSMENT YEAR 2009-10. THE ASSESSM ENT WAS FRAMED UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 [IN SHORT THE ACT]. 2. THE ONLY GRIEVANCE OF THE REVENUE IN THE INSTANT A PPEAL IS THAT IN THE ASSESSMENT ORDER DATED 31 ST JULY, 2012, THE ASSESSING OFFICER HAD DISALLOWED/ADDED TRANSPORT CHARGES OF RS.31,59, 665/- AND CFS CHARGES OF RS.24,01,000/- BY INVOKING SEC 40(A)(I A) OF THE ACT AFTER CONCLUDING THAT THE ASSESSEE HAS NOT DEDUCTED TDS W HICH STAND WRONGLY DELETED IN APPEAL. THE CONTENTION OF THE RE VENUE IS THAT THE CIT (A) HAS ERRED IN DELETING THE AFORESAID ADDITI ON BY PLACING RELIANCE ON CASE LAW M/S. MERILYN SHIPPING & TRANSPORTS VS. ACIT REPORTED IN 16 ITR (TRIB) (1) (SB). 3. THE DR REPRESENTING REVENUE SUBMITTED THAT RECENTLY , THE HONBLE CALCUTTA HIGH COURT IN CASE LAW ITAT NO.31 OF 2013 G.A NO.320 OF 2013 CIT VS.MD. JAKIR HOSSAIN MONDAL, DAT ED 4 TH APRIL, 2013 HAS OVERRULED THE SPECIAL BENCHS DECISION. IN LIG HT THEREOF, HE PLEADS FOR ACCEPTANCE OF APPEAL BY PRODUCING COPY OF THE O RDER. 4. THE ASSESSEE HAD CHOSEN TO RELY ON CIT(A)S ORDER A ND REASONS CONTAINED THEREIN. AT THE SAME TIME, IT ALSO REITE RATES PLEADINGS IN THE CROSS OBJECTIONS AND SUBMITS THAT THE CIT (A) HAS N OT CONSIDERED I.T.A.NO.1873/MDS/2012 :- 3 -: MERITS OF THE CASE IN APPEAL. IT FURTHER CONTENDS THAT SINCE THE MERITS HAVE NOT BEEN ADJUDICATED BY THE CIT(A), THE CROSS OBJECTIONS DESERVE TO BE ACCEPTED. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE CASE FILE . THE ASSESSEE-FIRM, WHICH IS ENGAGED IN THE BUSINESS OF CUSTOM HOUSE AGENT, HAD CLAIMED EXPENSES OF TRANSPORT CHARGES AN D CFS CHARGES. AFTER NOTICING THAT IT HAD FAILED TO DEDUCT TDS, TH E ASSESSING OFFICER IN THE ASSESSMENT ORDER ADDED THE AMOUNT IN QUESTION B Y INVOKING SEC 40(A)(IA) OF THE ACT. 6. IN APPELLATE PROCEEDINGS, APART FROM FILING GROUNDS ON MERITS, THE ASSESSEE RAISED ADDITIONAL GROUND ON THE BASIS OF SPECIAL BENCH DECISION(SUPRA). WE NOTICE THAT CIT(A) HAS ALLOWED ADDITIONAL GROUND AND HELD THAT RELEVANT PROVISION OF SEC 40(A)(IA) O F THE ACT WOULD APPLY ONLY FOR EXPENDITURE PAYABLE ON 31 ST MARCH AND NOT REGARDING THE AMOUNT WHICH STANDS ALREADY PAID. IN THIS BACKDROP OF THE FACTS, WE ARE OF THE VIEW THAT THE REVENUE APPEALS ON LEGALI TY ASPECT DESERVES TO BE ACCEPTED ON THE BASIS OF DECISION OF THE HON BLE HIGH COURT (SUPRA). 7. COMING TO X-OBJECTIONS OF THE ASSESSEE ON MERITS, W E DEEM IT PROPER THAT SINCE ITS CLAIM MAY NEED FACTUAL VERIF ICATION, IT WOULD BE I.T.A.NO.1873/MDS/2012 :- 4 -: APPROPRIATE IF THE ISSUE IS RESTORED BACK TO THE FI LE OF THE ASSESSING OFFICER. HENCE, WE DIRECT HIM TO DECIDE IT AFRESH O N MERITS AFTER HEARING THE ASSESSEE. IT WOULD BE APPRECIATED IF TH E LD. ASSESSING OFFICER PASSES THE ORDER WITHIN A PERIOD OF FOUR MO NTHS OF GETTING CERTIFIED COPY OF THE ORDER. 8. CONSEQUENTLY, THE APPEAL OF THE REVENUE IS ALLOWED WHEREAS THE CROSS OBJECTION OF THE ASSESSEE IS PARTLY ALLOWED F OR STATISTICAL PURPOSES. 9. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON THURSDAY, THE 18 TH OF APRIL, 2013, AT CHENNAI. . SD/- SD/- (DR. O.K. NARAYANAN) VICE PRESIDENT (S.S. GODARA) JUDICIAL MEMBER DATED:18 TH APRIL, 2013 K.V COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR