ACIT, CHENNAI V. M/s. P.Manickam & Co., CHENNAI

ITA 1195/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64554 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 27-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 30-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI
• Assessee Lawyers: PG SATGURU DAS
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO. 1195/MDS/2012 ASST. YEAR : 2007-08 THE ASST . COMMISSIONER OF INCOME TAX, CIRCLE XIV, CHENNAI. (APPELLANT) V. M/S . P. MANICKAM & CO., NO.21, PERAMBUR BARRACKS ROAD, PATTALAM, CHENNAI 600 012. PAN : AAAFP0680R. (RESPONDENT) APPELLANT BY : MR. TN BETGERI, JCIT RESPONDENT BY : MR. PG SATGURU DAS, C.A DATE OF HEARING : 27 NOV 2012 DATE OF PRONOUNCEMENT : 27 NOV 2012 O R D E R PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER : THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XII, CHENNAI, DATED 29.2.2012 IN ITA NO.228/2009-10 FOR THE ASST. YEAR 2007-08. THE ONLY ISSUE IN THE GROUNDS OF APPEAL OF THE REVENUE IS THAT THE ITA 1195/MDS/12 2 COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELET ING THE DISALLOWANCE OF EXPENSES OF B.8,37,603/- TOWARDS LA BOUR AND CRANE/TRANSPORT CHARGES ON WHICH TAX HAS NOT BEEN D EDUCTED AT SOURCE. 2. THIS APPEAL WAS FILED BY THE DEPARTMENT WITH A DELAY OF FIVE DAYS. THE DEPARTMENT HAS FILED AN AFFIDAVIT D ATED 30.5.2012 PRAYING FOR CONDONATION OF DELAY OF FIVE DAYS FOR T HE REASONS EXPLAINED IN THE AFFIDAVIT. AFTER CONSIDERING THE REASONS ADVANCED, WE ARE SATISFIED THAT THERE IS REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL. WE THEREFORE CONDONE THE DELAY OF FIV E DAYS IN FILING THE APPEAL AND TAKE UP THE APPEAL FOR OUR CONSIDERATION . 3. AT THE TIME OF HEARING, THE COUNSEL FOR THE AS SESSEE SUBMITS THAT THE ISSUE IN APPEAL IS SQUARELY COVERE D BY THE SPECIAL BENCH DECISION OF VIZAG BENCH OF THE TRIBUNAL IN TH E CASE OF MERILYN SHIPPING & TRANSPORTS [2012]16(TRIB)1(SB) IN FAVOUR OF THE ASSESSEE. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSE SSING OFFICER INVOKED THE PROVISIONS OF SEC.40(A)(IA) OF THE I.T. ACT AND DISALLOWED ITA 1195/MDS/12 3 THE EXPENDITURE INCURRED TOWARDS LABOUR, CRANE/TRAN SPORT CHARGES ON THE GROUND THAT TDS HAS BEEN DEDUCTED AND REMITTED BEYOND THE DUE DATE. THE COUNSEL FOR THE ASSESSEE SUBMITS TH AT AT THE END OF THE RELEVANT ASST. YEAR, THE ASSESSEE HAS PAID ALL THESE AMOUNTS AND NOTHING REMAINS PAYABLE TO THEM. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS REMITTED THE TDS ALON G WITH INTEREST BEFORE DUE DATE FOR FILING OF RETURN. THE COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT THE PROVISIONS OF SEC.40(A)(IA ) OF THE ACT WERE AMENDED VIDE FINANCE ACT 2010 WITH EFFECT FROM 01.4 .2010 FIXING THE DUE DATE TO REMIT TDS AS THE DUE DATE FOR FILING OF RETURN FOR THE ENTIRE TDS DEDUCTED DURING THE FINANCIAL YEAR. HE SUBMITS THAT SINCE TDS WAS REMITTED BEFORE DUE DATE FOR FILING OF RETU RN AND THE PROVISIONS OF SEC.40(A)(IA) OF THE I.T. ACT ARE NOT ATTRACTED. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT EVEN OTHERWIS E SINCE ALL THE PAYMENTS HAVE BEEN MADE AS ON THE LAST DAY OF THE P REVIOUS YEAR AND NOTHING REMAINS PAYABLE AS ON THE LAST DAY OF T HE PREVIOUS YEAR THE PROVISIONS OF SEC.40(A)(IA) OF THE ACT ARE NOT ATTRACTED TO THE SAID PAYMENTS IN VIEW OF THE SPECIAL BENCH DECISION OF T HE VIZAG BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS(SUPRA). ITA 1195/MDS/12 4 4. THE DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE DECISION OF THE VIZA G SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERIYLN SHIPPING & T RANSPORTS (SUPRA) AND IN OUR OPINION , THE MATTER HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE SAID DECISION. IT WAS HELD BY THE SPECIAL BENCH THAT SEC.40(A)(IA) OF THE I.T. ACT IS ATTRACTED ONLY IN CASE OF AMOUNTS STANDING PAYABLE AT THE END OF THE PREVIOUS YEAR AN D NOT ON THE AMOUNTS PAID DURING THE YEAR. IN THE CIRCUMSTANCES , WE FIND NO INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOM E TAX (APPEALS) AND ACCORDINGLY, CONFIRM THE SAME. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ITA 1195/MDS/12 5 7. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON TUESDAY, THE 27 TH OF NOVEMBER 2012, AT CHENNAI. SD/- SD/- ( DR. O.K. NARAYANAN) (CHALLA NAGENDR A PRASAD) VICE PRESIDENT JUDICIAL MEMBE R CHENNAI, DATED : 27 TH NOVEMBER 2012. JLS. COPY TO:- (1) APPELLANT (2) RESPONDENT (3) CIT-(A), CHENNAI (4) C.I.T., CHENNAI (5) D.R. (6) GUARD FILE