The ACIT,TDS Circle, Ahmedabad V. Hazira Port Pvt.Ltd., Ahmedabad

ITA 106/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89487 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 14-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 13-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: VJAY RANJAN
• Keywords: Additional evidence
• Section: 201(1)

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ITA NOS. 105 & 106/AHD/2011 / ASSESSMENT YEAR: 2008-09 ACIT, TDS CIRCLE, AHMEDABAD HAZIRA PORT PVT LTD ABHIJEET-II, MITHAKHALI CIRCLE, AHMEDABAD PAN : AAACH 9142 D / // / (APPELLANT) / // / (RESPONDENT) REVENUE BY : SHRI B.L. YADAV, SR. DR. ASSESSEE(S) BY : SHRI VJAY RANJAN, AR !'# $ %& !'# $ %& !'# $ %& !'# $ %& / DATE OF HEARING : 14/05/2015 '( $ %& / // / DATE OF PRONOUNCEMENT: 22/05/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST TWO SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- XXI, AHMEDABAD, BOTH DATED 15.10.2010 FOR ASSESSMENT YEARS 2008-09. 2. THE ONLY GROUND RAISED IN THESE TWO APPEALS BY T HE REVENUE READS AS UNDER:- ITA NO.105/AHD/2011 THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ORDER PASSED U/S 201(1A) OF RS.52,62,188/- FOR A.Y. 2008-09 IS CONSEQUENTIAL TO THE LEVY OF TAX U/S 201(1) OF THE ACT TREATING T HE USE OF WATER FRONT ROYALTY U/S 194J OF THE ACT AGAINST 194I OF THE ACT BY THE A.O. ITA NO.106/AHD/2011 THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ORDER PASSED U/S 201(1A) OF RS.2,02,10,805/- FOR A. Y. 2008-09 ITRATING THE ITA NOS.105 & 106/AHD/2011 ACIT VS. HAZIRA PORT PVT LTD AY: 2008-09 2 USE OF WATER FRONT ROYALTY U/S 194J OF THE ACT AGAI NST 194I OF THE ACT BY THE A.O. 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE REFERRED TO HIS APPLICATION FILED FOR ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 29. HE STATED THAT THE PAYMENTS MADE BY THE A SSESSEE VIZ., LANDING FEES, SHIPPING FEES, LIGHTERAGE LEVY, LICENSE FEES, WATERFRONT FEES, WATERFRONT ROYALTY ARE STATE CHARGES AND PAYABLE TO GOVERNMENT OF GUJARAT. THEREFORE, ON THESE PAYMENTS NO TAX WAS REQUIRED TO BE DEDUCTE D BEING PAYMENT TO GOVERNMENT. THEREFORE, THE CONTROVERSY RAISED IN TH E REVENUES APPEAL WHETHER THE TAX WAS REQUIRED TO BE DEDUCTED U/S 194 J OR 194I IS IRRELEVANT. HE SUBMITTED THAT THE ADDITIONAL EVIDENCES ARE TO E STABLISH THE POINT THAT THERE WAS NO LIABILITY OF THE ASSESSEE TO DEDUCT TH E TAX AT SOURCE. HE, THEREFORE, REQUESTED FOR THE ADMISSION OF ADDITIONA L EVIDENCES. 4. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCES AND STATED TH AT THIS ISSUE WAS NEVER RAISED BEFORE THE ASSESSING OFFICER. THEREFORE, IN STEAD OF ADMITTING THE ADDITIONAL EVIDENCES, IT WOULD BE APPROPRIATE IF TH E ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE HAS NO O BJECTION TO THE ABOVE MENTIONED SUGGESTION OF THE LD. DEPARTMENTAL REPRES ENTATIVE. IN VIEW OF ABOVE AND CONSIDERING THE ARGUMENTS AND SUBMISSIONS OF BOTH THE SIDES, WE DEEM IT PROPER TO SET ASIDE THE ORDERS OF THE AUTHO RITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R. WE DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES AND EXPLANATION BEFORE TH E ASSESSING OFFICER; THEREAFTER, THE ASSESSING OFFICER IS DIRECTED TO EX AMINE WHETHER THE ASSESSEE IS AT ALL RESPONSIBLE FOR DEDUCTION OF TAX AT SOURC E. IF HE COMES TO THE CONCLUSION THAT THE ASSESSEE IS LIABLE FOR DEDUCTIO N OF TAX AT SOURCE, THEN HE WILL FURTHER ADJUDICATE WHETHER THE TAX WAS REQUIRE D TO BE DEDUCTED U/S ITA NOS.105 & 106/AHD/2011 ACIT VS. HAZIRA PORT PVT LTD AY: 2008-09 3 194I OR 194J, AND THEREAFTER, HE WILL ARRIVE AT THE CONCLUSION WHETHER THE ASSESSEE CAN BE SAID TO BE IN DEFAULT U/S 201(1) OR 201(1A). 5. IN THE RESULT, THE REVENUES APPEALS ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 22 ND MAY, 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 22/05/2015 BIJU T., PS )* $ %+ ,)+% )* $ %+ ,)+% )* $ %+ ,)+% )* $ %+ ,)+%/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. !-- % '. / CONCERNED CIT 4. '. ( ) / THE CIT(A) 5. +12 % , , / DR, ITAT, AHMEDABAD 6. 2 3# / GUARD FILE . )*'! )*'! )*'! )*'! / BY ORDER, TRUE COPY 4 44 4/ // /! -5 ! -5 ! -5 ! -5 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD