Vandana Dineshkumar Inani, Latur V. Income-tax Officer,

ITA 124/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7717 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 02-01-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO .124 /P U N/201 6 / ASSESSMENT YEAR : 20 09 - 10 VANDANA DINESHKUMAR INANI, INANI HOUSE, MAIN ROAD, LATUR 413512 PAN : AABPI2299G ....... / APPELLANT / V/S. INCOME TAX OFFICER, WARD 1, LATUR / RESPONDENT ASSESSEE BY : S HRI M.K. KULKARNI REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 25 - 04 - 201 8 / DATE OF PRONOUNCEMENT : 26 - 0 4 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 2, AURANGABAD DATED 03 - 12 - 2015 FOR THE ASSESSMENT YEAR 2009 - 10. 2 ITA NO . 124/PUN/2016, A.Y. 2009 - 10 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS A COMMISSION AGENT AND GENERAL MERCHANT. THE ASSESSEE FILED HER RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 20 - 10 - 2009 DECLARING TOTAL INCOME OF RS.3,30,758/ - AND AGRICULTURE INCOME OF RS.37,412/ - . THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS. ACCORDINGLY, STATUTORY NOTICE U/S. 143(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS ISSUE TO THE ASSESSEE ON 19 - 08 - 2010 WHICH WAS DULY SERVED ON THE ASSESSEE ON 24 - 08 - 2010. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS MADE PAYMENTS TO CENTRAL/STATE WAREHOUS ING CORPORATIONS TO THE TUNE OF RS. 69,27,693/ - WITHOUT DEDUCTING TAX AT SOURCE. THE ASSESSING OFFICER MADE DISALLOWANCE OF SAID AMOUNT U/S. 40(A)(IA) OF THE ACT. AGGRIEVED BY THE ASSESSMENT ORDER DATED 30 - 12 - 2011, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER AND DISMISSED THE APPEAL OF ASSESSEE. AGAINST THE FINDINGS OF COMMISSIONER O F INCOME TAX (APPEALS) , THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 3. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT HE IS NOT PRESSING GROUND NOS. 1(D) AND 1(E) RAISED IN THE APPEAL. THE OTHER GROUNDS I .E. GROUND NOS. 1(A), 1(B), 1(C) AND 1(F) ARE DIRECTED AGAINST THE SINGLE ISSUE OF DISALLOWANCE OF RS.69,27,693/ - U/S. 40(A)(IA) OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THAT THE ASSESSEE HAS NOT PAID 3 ITA NO . 124/PUN/2016, A.Y. 2009 - 10 THE AMOUNT TO WAREHOUS ING CORPORATIONS. THE ASSESSEE HAS MERELY ACTED AS CONDUIT BETWEEN THE BUYERS OF GOODS I.E. BAJRI AND THE WAREHOUS ING CORPORATIONS. THE ASSESSEE HAS REIMBURSED WAREHOUSING CHARGES AFTER COLLECTING THE SAME FROM THE BUYE RS OF THE GOODS STORED IN WAREHOUSE. THUS, IN A CASE OF REIMBURSEMENT OF CHARGES , NO TDS WAS REQUIRED TO BE DEDUCTED BY THE ASSESSEE. 4. ON THE OTHER HAND DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ADDITION. THE LD. DR SUBMITTED THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE UNDER THE PROVISIONS OF SECTIO N 194I OF THE ACT IN RESPECT OF PAYMENTS MADE TO THE WAREHOUSING CORPORATION S FOR STORAGE OF GOODS. THE ASSESSEE HAS FAILED TO SHOW THAT IT IS A CASE OF REIMBURSEMENT OF CHARGES. IN FACT, THE INVOICES FURNISHED BY THE ASSESSEE CLEARLY INDICATE THAT THE A SSESSEE HAS CHARGED FOR GOODS ONLY AND THERE IS NO REFERENCE OF REIMBURSEMENT OF WAREHOUSING CHARGES . 5. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW . THE SOLITARY ISSUE RAISED IN APPEAL BY THE ASSESSEE IS WITH RESPECT TO DISALLOWANCE U/S. 40(A)(IA) FOR NON - DEDUCTION OF TAX AT SOURCE ON PAYMENTS MADE TO WAREHOUSING CORPORATION S FOR STORAGE OF GOODS. THE CONTENTION OF THE ASSESSEE IS THAT THE PAYMENTS TO THE WAREHOUSING CORPORATION S ARE MERELY REIMBURSEMENT OF CHARGES COLLECTED FROM BUYERS OF THE GOODS. WE DO NOT FIND MERIT IN THE SUBMISSIONS MADE BY THE ASSESSEE. THERE IS NO DOCUMENT ON RECORD THAT WOULD INDICATE THAT IT IS A CASE OF REIMBURSEMENT OF CHARGES. 4 ITA NO . 124/PUN/2016, A.Y. 2009 - 10 THE INVOICE S FURNIS HED BY THE ASSESSEE AT PAGES 4 TO 7 OF THE PAPER BOOK INDICATE THAT THE ASSESSEE HAS CHARGED FOR THE GOODS AND THERE IS NO REFERENCE OF ANY COLLECTION OF WAREHOUSING CHARGES. THEREFORE, THE PLEA RAISED BY THE ASSESSEE THAT IT IS A CASE OF REIMBURSEMENT OR EXPENSES IS WITHOUT ANY MERIT. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ADDITION. 6. THE LD. COUNSEL FOR THE ASSESSEE MADE AN ORAL PRAYER THAT THE ASSESSEE CAN PRODUCE NECESSARY EVIDENCE TO SHOW THAT THE RECIPIENT OF THE AMOUNT I.E. THE WAREHOUSING CORPORATIONS HAVE OFFERED THE AMOUNT PAID BY ASSESSEE TO TAX IF, THE MATTER IS REMITTED BACK TO THE ASSESSING OFFICER FOR VERIFICATION IN THE LIGHT O F SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT INSERTED BY FINANCE ACT, 2012 W.E.F. 01 - 04 - 2013. THE LD. COUNSEL SUBMITTED THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ANSAL LAND MARK TOWNSHIP (P) LTD. REPORTED AS 377 I TR 635 HAS HELD THAT THE SECOND PROVISO IS DECLARATORY AND CURATIVE AND IT HAS RETROSPECTIVE EFFECT FROM 01 - 04 - 2005. 7. WE FIND MERIT IN THE ALTERNATE PRAYER MADE BY THE ASSESSEE. ACCORDINGLY, WE REMIT THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER F OR VERIFICATION. THE ASSESSEE SHALL FURNISH NECESSARY DETAILS BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE THAT THE RECIPIENT S OF THE AMOUNT I.E. THE WAREHOUSING CORPORATIONS HAVE OFFERED THE AMOUNT TO TAX. THE ASSESSING OFFICER SHALL DECIDE THIS ISSUE D E - NOVO AFTER CONSIDERING THE NECESSARY DOCUMENTS FURNISHED BY THE ASSESSEE , IF ANY AND AFTER AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 5 ITA NO . 124/PUN/2016, A.Y. 2009 - 10 ACCORDINGLY, ALTERNATE PRAYER OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 26 TH DAY OF APRIL, 201 8 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 26 TH APRIL, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2, AURANGABAD 4. THE PR. CIT - 2, AURANGABAD 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE