Appeal details
Counselvise Citation
[2014] 123 COUNSELVISE.COM (IT) 0178 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
18-12-2014
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
Not Allotted
Assessment Year
2009-2010
Appeal Filed On
16-12-2014
Judgement Text
, IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ITA NO. 54 90 / MUM /20 1 3 ( ASSESSMENT YEAR : 2009 - 2010 ) DCIT (TDS) - 2(2), MUMBAI VS. M/S PORTESCAP INDIA PVT. LTD., UNIT 2, SDF I, SEEPZ - SEZ, ANDHERI(E) , MUMBAI - 400 09 6 PAN/GIR NO. : A A A C K 4896 K ( APPELLANT ) .. ( RESPONDENT ) AND NO. 2 58 /MUM/20 14 (ARISING OUT OF ITA NO. 54 90 /MUM/20 13 ) ( ASSESSMENT YEAR :200 9 - 20 10 ) M/S PORTESCAP INDIA PVT. LTD., UNIT 2, SDF I, SEEPZ - SEZ, ANDHERI(E), MUMBAI - 400 096 VS. DCIT (TD S) - 2(2), MUMBAI PAN/GIR NO. : A AACK 4896 K /REVENUE BY : SHRI ASGHAR ZAIN VP /ASSESSEE BY : SHRI NITESH JOSHI DATE OF HEARING : 18 TH DECEMBER , 201 4 DA TE OF PRONOUNCEMENT 18 TH DECEMBER , 201 4 O R D E R PER SANJAY GARG ( J .M) : TH E REVENUE HAS FILED AN APPEAL AND THE ASSESSEE HAS FILED CROSS OBJECTION AGAINST THE ORDER OF CIT(A) DATED, 29 - 5 - 2013 FOR THE A.Y.2009 - 2010. ITA NO. 54 90 / 1 3 & CO NO. 2 58 /14 2 2 . THE REVENUE IN ITS APPEAL IS BASICALLY AGGRIEVED BY THE ORDER OF CIT(A) IN DELETING THE NON - DEDUCTION OF TAX BY HOLDING THAT IN VIEW OF THE DISALLOWANCE U/S.40(A)(IA) , NO DEMAND CAN BE RAISED U/S.201(1) R.W.S194 J OF THE I.T. ACT. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT THE CIT(A) HAS DELETED THE DISALLOWANCE MADE U/S.40(A)(IA) BY FOLLOWING THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. PFIZER LTD., 330 ITR 62 (BOM) . THE PRECISE OBSERVATION OF THE CIT(A) WAS AS UNDER : - 4.2 I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE APPELLANT AS WELL AS THE FACTS OF THE CASE. IT IS SEEN THAT AN AMOUNT OF RS.5,49,796/ - WAS QUANTIFIED BY THE CHARTERED ACCOUNTANTS OF THE APPELLANT IN THE TAX AUDIT REPORT FOR DISALLOWANCE UNDER SECTION 40(A)(I A) OF THE ACT. THEREFORE, WHILE FILING THE RETURN OF INCOME, THE APPELLANT SUO - MOTO DISALLOWED AN A M OUNT OF RS.5,50,000 / - IN THE COMPUTATION OF INCOME. THUS, T H E APPELLANT DID NOT CLAIM THE DEDUCTION IN REGARD TO THESE EXPENSES INCURRED: THE APPELLANT'S CO NTENTION IS THAT THE PROVISIONS OF SECTION 201 DO NOT APPLY TO ITS CASE BECAUSE THE AMOUNT OF RS.5,50,000 / - HAS BEEN SUO - MOTO DISALLOWED, WHILE FILING THE RETURN OF INCOME. I AGREE WITH THE CONTENTION OF THE APPELLANT IN THIS REGARD. 4.3 IN THE CASE OF P FIZER LTD VS. ITO (SUPRA), CITED BY THE APPELLANT, THE ASSESSEE HAD SUO - M OTO DISALLOWED THE ENTIRE AMOUNT OF THE PROVISION C REATED UNDER SECTIONS 40(A)(I)/ 40(A)(IA), ON ACCOUNT OF NON - DEDUCTION OF TAX. IN THESE CIRCUMSTANCES, BECAUSE THE ASSESSEE HAD NOT C LAIMED ANY SUCH EXPENDITURE IN THE RELEVANT YEAR, THE HON'BLE ITAT, MUMBAI HELD THAT THE ASSESSEE CANNOT BE SUBJECTED TO THE PROVISIONS OF TDS UNDER SECTION 201(1). THE CASE OF THE APPELLANT IS IDENTICAL ON FACTS TO THE CASE OF PFIZER LTD. HENCE, THE APPEL LANT CANNOT BE TREATED TO BE IN DEFAULT UNDER SECTION 201 FOR NON - DEDUCTION OF TAX AT SOURCE IN VIEW OF THE SAID FACT THAT THE AMOUNT OF RS.5,50,0001 - HAS BEEN SUO - MOTO DISALLOWED BY THE APPELLANT UNDER SECTION 40(A)(IA) OF THE ACT IN THE RETURN OF INCOME. THE DEMAND OF RS. 11,98,849/ - RAISED BY THE AO IS THEREFORE NOT JUSTIFIED AND THE SAME IS HEREBY DELETED. 4. WE HAVE CAREFULLY GONE THROUGH THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF PFIZER LTD . (SUPRA) , WHEREIN DISALLOWANCE MADE U/S. 40 (A)(IA) WAS DELETED BECAUSE ASSESSEE HAS NOT CLAIMED ANY SUCH EXPENDITURE IN THE RELEVANT YEAR. AS THE FACTS AND CIRCUMSTANCES DURING ITA NO. 54 90 / 1 3 & CO NO. 2 58 /14 3 THE YEAR UNDER CONSIDERATION IS SAME, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). 5. THE CROSS OBJECTION FILED BY THE ASSESSEE HAS NOT BEEN PRESSED, ACCORDINGLY, THE SAME IS DISMISSED AS NOT PRESSED. 6 . IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 /12 / 201 4 . 18 /12 / 2014 SD/ - SD/ - ( ) ( R.C.SHARMA ) ( ) ( SANJAY GARG ) / ACCOUNTANT MEMBER / JUDICIAL MEM BER MUMBAI ; DATED 18 /12 /2014 /PKM , PS COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A), MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//
