DEPUTY COMMISSIONER OF INCOME TAX, Jaipur V. ADINATH BUILDCON PVT. LTD., Jaipur

ITA 136/JPR/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6223 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 02-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Section: 143(3); 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 136/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2007-08. DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE-6, JAIPUR. CUKE VS. M/S. ADINATH BUILDCON PVT. LTD., K-21, SUNNY HOUSE, MALVIYA MARG, C-SCHEME, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AADCA 2574 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.04.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 03/04/2018. VKNS'K@ ORDER PER SHRI VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 1 ST NOVEMBER, 2017 OF LD. CIT (A) FOR THE ASSESSMENT YEAR 2007-08 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- (I) WHETHER ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) WAS JUSTIFIED IN CANCELLING THE ORDER PASSED U/S 143(3) R.W.S. AND IN DELETING THE DISALLOWANCE MADE U/S 40(A)(IA) OF RS. 39,65,510/- WITHOUT APPRECIATING T HE FACT THAT THE ASSESSEE COMPANY FAILED TO DISCHARGE ITS STATUT ORY LIABILITY TO DEDUCT TDS ON INTEREST PAYMENT AS PER INCOME TAX AC T, 1961. (II) THE APPELLANT CRAVES ITS RIGHTS TO ADD, AMEND OR ALTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 2 ITA NO. 136/JP/2018 M/S. ADINATH BUILDCON PVT. LTD., JAIPUR. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESP ITE THE NOTICE ISSUED THROUGH RPAD. SINCE THE ISSUE INVOLVED IN THIS APP EAL OF THE REVENUE STANDS DISPOSED OFF BY THE TRIBUNAL IN THE APPEAL FILED AG AINST THE ORDER PASSED UNDER SECTION 263, THEREFORE, WE PROPOSE TO HEAR AND DISP OSE OFF THE APPEAL EX PARTE. 3. WE HAVE HEARD THE LD. D/R AND CONSIDERED THE REL EVANT MATERIAL ON RECORD. THE DISALLOWANCE MADE BY THE AO UNDER SECTION 40(A) (IA) FOR NON DEDUCTION OF TDS ON INTEREST WAS IN PURSUANT TO THE REVISION ORDER P ASSED BY THE CIT U/S 263 OF THE ACT. WE FURTHER NOTE THAT THIS TRIBUNAL IN ASSESS EES OWN CASE IN THE APPEAL AGAINST THE REVISION ORDER PASSED UNDER SECTION 263 HAS DEC IDED THE ISSUE IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 17.4.2017. THE LD. CIT (A ) HAS DECIDED THIS ISSUE IN PARA 5 AS UNDER :- 5. I HAVE PERUSED THE ORDER OF THE AO AND SUBMISS IONS MADE IN THIS REGARD. I FIND THAT HONBLE ITAT HAS CANCELLED ORDER U/S 263 VIDE ORDER NO. ITA/373/JP/2016 DATED 17/4/2017. THE RELE VANT PARA OF HONBLE TRIBUNAL ORDER READS AS UNDER :- THEREFORE, THE CONDITION WHICH REQUIRES TO BE SAT ISFIED FOR THE PURPOSE OF JURISDICTION U/S 263 ARE THAT THE ORDER OF THE ASSESSING OFFICER SHOULD BE ERRONEOUS AND PREJUDICI AL TO THE INTEREST OF REVENUE. MERELY BECAUSE THE ORDER IS ER RONEOUS WOULD NOT MEET THE REQUIREMENT OF LAW FOR INVOKING THE PROVISIONS OF SECTION 263. IN THE CASE IN HAND, IT IS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE PAYEE HAS INC LUDED THE INTEREST INCOME INTO THE RETURN OF INCOME AND PAID TAX THEREON. THIS FACT IS NOT CONTROVERTED BY THE REVENUE BY PLA CING ANY CONTRARY MATERIAL ON RECORD. UNDER THESE FACTS, WE ARE OF THE CONSIDERED VIEW THAT IT IS NOT THE FIT CASE FOR INV OKING THE PROVISIONS OF SECTION 263. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT AND RESTORE THE ASSESSMENT ORDER. THIS GROUND OF THE ASSESSEES APPEAL IS ALLOWED. 3 ITA NO. 136/JP/2018 M/S. ADINATH BUILDCON PVT. LTD., JAIPUR. SINCE THE ORDER U/S 263 HAS BEEN SET ASIDE THE ORDE R U/S 143(3)/263 DOES NOT SUBSIST. THE ORDER OF THE AO IS THEREFORE, CANCELLED. THE LD. D/R HAS NOT DISPUTED THE FACT THAT THE TRIB UNAL HAS QUASHED THE ORDER PASSED UNDER SECTION 263 OF THE ACT. ACCORDINGLY, W E DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF LD. CIT (A). 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 03/04/201 8. SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/04/2018. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-THE DCIT, CIRCLE-6, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-M/S. ADINATH BUILDCON PVT. LTD., JAI PUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 136 /JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR