EAGLE HOME APPLIANCES P. LTD (FORMLERY TRADE TEAM P. LTD, Pune V. DCIT 7(3),

ITA 1066/MUM/2011

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1713 (ITAT-PUNE)
• Duration Of Justice: 8 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-01-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 04-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Keywords: TDS
• Section: 234B; 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 1066 / MUM /201 1 / ASSESSMENT YEAR : 20 06 - 07 M/S. EAGLE HOME APPLIANCES P. LTD., (FORMERLY TRADE TEAM P. LTD.), MAHAKALI, ANDHERI, MUMBAI - 13 PAN : AAACT3316M ....... / APPELLANT / V/S. DY. COMMISSIONER OF INCOME TAX 7(3), MUMBAI / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI SAN JEEV GHEI / DATE OF HEARING : 13 - 03 - 2019 / DATE OF PRONOUNCEMENT : 18 - 0 3 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 13, MUMBAI DATED 29 - 10 - 2010 FOR THE ASSESSMENT YEAR 2006 - 07. 2 ITA NO .1066/ MUM /2011 2. THE ASSESSEE IN APPEAL HAS RAISED 7 GROUNDS. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMIT TED AT THE OUTSET THAT THE GROUND NOS. 1 TO 3 OF THE APPEAL ARE NOT PRESSED. THUS, THE EFFECTIVE GROUNDS ASSAILING THE ADDITION S ARE GROUND NOS. 4 AND 5. 2.1 IN GROUND NO. 4 THE ASSESSEE HAS ASSAILED DISALLOWANCE OF RS.1,24,91,463/ - U/S. 40(A)(IA) O F T HE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) , IN RESPECT OF NON DEDUCTION OF TAX AT SOURCE ON THE PAYMENTS MADE TO THE TRANSPORTERS. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE HAD MADE PAYMENTS TO THE TRANSPORTERS FOR MOVEMENT OF GOODS TO THE GODOWNS. THE TRANSPORTATION OF GOODS WERE FINALLY RECOVERED AT THE TIME OF SALE OF GOODS AS REIMBURSEMENT OF EXPENDITURE . THEREFORE, THE ASSESSEE WAS NOT LIABLE FOR DEDUCTING TAX AT SOURCE ON SUCH PAYMENTS TO THE TRANSPORTER. 2. 2 IN RESPECT OF GROUND NO. 5 OF THE APPEAL THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE ERRED IN MAKING ADDITION BY DENYING DEDUCTION OF RS.10,88,887/ - IN RESPECT OF PAYMENT OF PROVIDENT FUND BEFORE DUE DATE OF FILING OF RET URN OF INCOME. THE LD. COUNSEL SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSIONS LTD. REPORTED AS 319 ITR 306. THE LD. CO UNSEL FAIRLY POINTED THAT THOUGH THE ADDITION WAS MADE DURING ASSESSMENT PROCEEDINGS THE ISSUE WAS NOT RAISED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE GROUNDS OF APPEAL. HOWEVER, THE GROUND WAS ORALLY MENTIONED DURING FIRST APPELLATE PROCEED INGS BUT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT TAKEN COGNIZANCE OF THE SAME. 3 ITA NO .1066/ MUM /2011 3. SHRI SANJEEV GHEI REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. 4. BOTH SIDES HEARD. ORD ERS OF THE AUTHORITIES BELOW PERUSED. THE LD. COUNSEL FOR THE ASSESSEE HAS SATED AT THE BAR THAT HE IS NOT PRESSING GROUND NOS. 1, 2 AND 3 OF THE APPEAL. THUS, IN VIEW OF THE STATEMENT MADE, THE GROUND NOS. 1 TO 3 OF THE APPEAL ARE DISMISSED AS NOT PRESS ED. 5. THE GROUND NO. 4 OF THE APPEAL IS DIRECTED AGAINST DISALLOWANCE OF RS.1,24,91,463/ - MADE U/S. 40(A)(IA) OF THE ACT. THE DISALLOWANCE HAS BEEN MADE FOR NON - COMPLIANCE OF TDS PROVISIONS IN RESPECT OF PAYMENTS MADE TO THE TRANSPORTERS. THE LD. COU NSEL FOR THE ASSESSEE HAS ARGUED THAT THE PAYMENTS MADE TO THE TRANSPORTERS WERE SUBSEQUENTLY RECOVERED AS REIMBURSEMENT OF EXPENDITURE FROM THE DEALERS, THEREFORE, NO TDS WAS REQUIRED TO BE DEDUCTED. WE DO NOT FIND SUBSTANCE IN SUCH ARGUMENTS , AS THE ASS ESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE TO SUBSTANTIATE HIS CONTENTIONS. THE ASSESSEE WAS UNDER OBLIGATION TO COMP LY WITH THE PROVISIONS OF CHAPTER XVIIB ON THE PAYMENTS MADE TO THE TRANSPORTERS. WE DO NOT FIND ANY COGENT REASON FOR NON - DEDUCTIO N OF TDS ON THE PAYMENTS MADE BY THE ASSESSEE TO TRANSPORTERS . ACCORDINGLY, GROUND NO. 4 OF THE APPEAL BY THE ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 6. IN GROUND NO. 5 OF THE APPEAL, THE ASSESSEE HAS ASSAILED DISALLOWANCE OF DEDUCTION OF RS.10,88,887/ - ON ACCOUNT OF PROVIDENT FUND PAYMENT S MADE BEFORE THE DUE DATE OF FILING RETURN OF INCOME. IT IS NO MORE RES INTEGRA THAT PROVIDENT FUND PAYMENTS MADE BEFORE DUE DATE OF FILING RETURN OF INCOME ARE TO BE ALLOWED AS DEDUCTION. THE HONBLE B OMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. GHATGE 4 ITA NO .1066/ MUM /2011 PATIL TRANSPORTS LTD. REPORTED AS 368 ITR 749 AND THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ALOM EXTRUSIONS LTD. (SUPRA) HAVE HELD THAT THE PAYMENT S ON ACCOUNT OF PROVIDE FUND MADE BEFORE DUE DATE OF FILING RETURN OF INCOME ARE TO BE ALLOWED AS DEDUCTION. THE DEPARTMENT HAS NOT DISPUTED THE PAYMENT OF PROVIDENT FUND BY THE ASSESSEE BEFORE DUE DATE OF FILING RETURN OF INCOME. THUS, IN VIEW OF THE WE LL SETTLED LAW AND UNDISPUTED FACT S, THE ASSESSEES CLAIM IN GROUND NO. 5 OF THE APPEAL IS ALLOWED. 7. IN GROUND NO. 6 OF THE APPEAL, THE ASSESSEE HAS ASSAILED CHARGING OF INTEREST U/S. 234A, 234B AND 234C OF THE ACT. CHARGING OF INTEREST U/S. 234A, 23 4B AND 234C IS CONSEQUENTIAL AND MANDATORY, HENCE, GROUND NO. 6 RAISED IN APPEAL BY THE ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 8. THE GROUND NO. 7 IS GENERAL IN NATURE, HENCE, REQUIRES NO ADJUDICATION. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED IN THE TERMS AFORESAID. ORDER PRONOUNCED ON MONDAY, THE 18 TH DAY OF MARCH, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 18 TH MARCH, 2019 RK 5 ITA NO .1066/ MUM /2011 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 13, MUMBAI 4. / THE CIT - 7, MUMBAI 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE