M/s. G.S.A.Petroleum, Nagpur V. Income Tax Officer Ward-4(2),Nagpur, Nagpur

ITA 12/NAG/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9565 (ITAT-NAGPUR)
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 21-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH DAWANDE
• Assessee Lawyers: C J THAKAR
• Keywords: Principle of natural justice

Judgement Text

ITA NO. 12/NAG/2009 M/S. G.S.A. PETROLEUM, NAGPUR IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , NAGPUR BEFORE: SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI D.T. GARASIA , JUDICIAL MEMBER ITA NO. 12 / NAG / 20 09 ASSESSMENT YEAR : 2005 - 06 M/S. G.S.A. PETROLEUM NAGPUR VS. ITO WAR D - 4(2) NAGPUR (APPELLANT) (RESPONDENT) PAN NO.AABFG 1294K APPELLANT BY: SHRI C.J. THAKAR, ADVOCATE RESPONDENT BY: SHRI RAMESH DAWANDE, SR. DR DATE OF HEARING: 11.10.2012 DATE OF PRONOUNCEMENT: 15.10.2012 ORDER PER P.K. BANSAL, ACCOUNTANT MEM BER: - THE ONLY ISSUE INVOLVED IN THIS ISSUE RELATE TO THE SUSTENANCE OF THE DISALLOWANCE BY THE CIT(A) AMOUNTING TO RS.28,79,748/ - U/S 40(A)(IA) OF THE INCOME - TAX ACT AS POINTED BY THE LD. A.R. AT THE TIME OF HEARING. AT THE OUTSET, THE LD. A.R. MOVED AN APPLICATION UNDER RULE 11 FOR THE ADMISSION OF THE ADDITIONAL GROUND. THE ADDITIONAL GROUND READS AS UNDER: ASSESSEE HAD FULLY PAID THE TRANSPORTATION CHARGES OF RS.22,98,073/ - TO THE TRANSPORTER AND NOTHING WAS REMAINING PAYABLE TO THEM AT THE END O F THE YEAR OF THE YEAR AND HENCE THE PROVISIONS OF SECTION 40(A)(IA) WERE NOT APPLICABLE AND HENCE NO DISALLOWANCE COULD BE MADE IN RESPECT OF THE SAID AMOUNT. 2. IT WAS CONTENDED BY THE LD. A.R. THAT ALL THE FACTS RELATING TO THE SAID GROUND ARE ON RECO RD. NO NEW FACTS ARE TO BE INVESTIGATED OR NO NEW MATERIAL IS REQUIRED TO BE EXAMINED. THE GROUND TAKEN IS MERELY A LEGAL GROUND AND HAS ARISEN DUE TO THE DECISION OF SPECIAL BENCH OF ITAT IN ITA NO.477/VIZAG/2008 FOR THE ASSESSMENT YEAR 2005 - 06 DATED 9. 4.2012 IN THE CASE OF MERILYN SHIPPING AND TRANSPORTS VS. ACIT RANGE - 1. REFERRING TO THE PAPER BOOK AND THE DETAILS OF THE PAYMENT MADE TO THE TRANSPORTER AS WELL AS THE PAYMENTS ITA NO.12/NAG/2009 M/ S. G.S.A. PETROLEUM, NAGPUR 2 REMAINS PAYABLE AS ON 31.3.2005, IT WAS POINTED OUT THAT ALL THE DETAILS WER E AVAILABLE ON RECORD. THE LD. D.R. ON THE OTHER HAND CONTENDED THAT ADDITIONAL GROUND SHOULD NOT BE ADMITTED. 3. AFTER HEARING THE RIVAL SUBMISSIONS AND LOOKING INTO THE FACTS THAT NO NEW FACTS ARE TO BE INVESTIGATED AND THE GROUND TAKEN BY THE ASSESS EE IS PURELY A LEGAL GROUND, WE ADMIT THE SAME AS AN ADDITIONAL GROUND IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF NTPC 229 ITR 383. 4 . SINCE THE ADDITIONAL GROUND IS A LEGAL GROUND, WE THEREFORE, LIKE TO TAKE THE ADDITIONAL GROUND FIRST. THE LD. A.R. CONTENDED THAT IN VIEW OF THE DECISION OF SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORT COMPANY VS. ACIT DATED 9.4.2012 IN ITA NO.477/VIZAG/2008 U/S 40(A)(IA), IT IS ONLY THE FREIGHT AMOUNT REMAINS PAYABLE AT THE END OF TH E YEAR CAN BE DISALLOWED U/S 40(A)(IA) , I F THERE IS A DEFAULT ON THE PART OF THE ASSESSEE IN RESPECT OF TDS PROVISION. IN THE CASE OF THE ASSESSEE, NO AMOUNT WAS PENDING FOR PAYMENT AS ON 31.3.2005. THEREFORE, THERE CANNOT BE ANY DISALLOWANCE U/S 40(A)(I A) OF INCOME - TAX ACT, 1961. 5 . THE LD. D.R. ON THE OTHER HAND CONTENDED THAT THE ASSESSING OFFICER DID NOT EXAMINE WHETHER ANY AMOUNT WAS PAYABLE AS ON 31.3.2005 IN THE INTEREST OF THE NATURAL JUSTICE, THE ASSESSING OFFICER SHOULD BE GIVEN AN OPPORTUNITY OR THE MATTER MAY BE SENT TO THE ASSESSING OFFICER FOR VERIFICATION. 6 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS ALONG WITH THE ORDER OF THE AUTHORITIES BELOW. WE NOTED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE DETAILS IN THE PROSPECTIV E OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS VS. ACIT (SUPRA) , THE DECISION OF THE SPECIAL BENCH IS BINDING ON US. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDER OF T HE CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSING OFFICER SHALL VERIFY THE DETAILS TO THE EXPENSES AS FILED BY THE ASSESSEE, WHETHER ANY AMOUNT ITA NO.12/NAG/2009 M/ S. G.S.A. PETROLEUM, NAGPUR 3 IS PAYABLE AS ON 31.3.2005, SO THAT THE DISALLOWANCE U /S 40(A)(IA) MAY REMAIN OUTSTANDING TO THE EXTENT OF AMOUNT REMAINS SO PAYABLE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A). 7. SINCE , THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THIS ISSUE OF DISALLOWANCE IS RESTORED TO AO, THE OTHER GROUNDS TAKEN BY THE ASSESSEE ALSO ARISE OUT OF THIS DISALLOWANCE, THESE GROUNDS DO NOT REQUIRE ANY ADJUDICATION AS BECOMING ACADEMIC, WE, THEREFORE, ARE NOT ADJUDICATING THESE GROUNDS AND ASSESSING OFFICER IS DIRECTED TO CONSIDER THESE ALSO WHILE CONSIDERING PLEA OF ASSESSEE FOR DISALLOWANCE U/S 40(A)(IA). 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15.10. 20 1 2 SD/ - SD/ - ( D.T. GARASIA ) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER VG/SPS NAGPUR DATED 15 TH OCTOBER , 20 1 2 COPY TO 1 M/S. GSA PETROLEUM, C/O NATIONAL SERVICE CENTRE, GADDIGUDAM, NAGPUR 2 THE CIT - 1 , NAGPUR 3 THE CIT (A) , NAGPUR 4 THE DR, ITAT, NAGPUR 5 GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL NAGPUR