Shri Pothina Venkata Ramana, Visakhapatnam V. The ITO, Visakhapatnam

ITA 144/VIZ/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0995 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 20-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SUMAN MALIK
• Assessee Lawyers: R L N SOMAYAJULU
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 1 44 / VIZ /201 7 (ASST. YEAR : 20 13 - 1 4 ) POTHINA VENKATA RAMANA, D.NO. 61 - 1 - 11/2, MALKAPURAM, BESIDE PETROL BUNK, VISAKHAPATNAM. V S . IT O , WARD - 5 ( 2 ), VISAKHAPATNAM. PAN NO. ABZPP 5100 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.L.N. SOMAYAJULU C A. DEPARTMENT BY : MRS. SUMAN MALIK SR. DR DATE OF HEARING : 26 / 1 1 /201 8 . DATE OF PRONOUNCEMENT : 28 / 1 1 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 2 , VISAKHAPATNAM , DATED 20 /0 1 /201 7 FOR THE ASSESSMENT YEAR 20 13 - 14 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE IS A WHOLESALE DEALER OF UNINOR RECHARGE COUPONS. HE WAS MADE CERTAIN PAYMENTS TO THE SUB - DEALERS, THE SAME IS DEBITED AS AN EXPENDITURE T OWARDS OTS C OMMISSION OF RS. 14,34,518/ - , SAC BASE COMMISSION OF RS. 8,52,347/ - , STB SCHEME COMMISSION OF 2 ITA NO. 144/VIZ/2017 ( POTHINA VENKATA RAMANA ) RS. 4,98,650/ - , TOTALLING TO RS. 27,85,515/ - TO HIS PROFIT & LOSS ACCOUNT . THE ASSESSING OFFICER HAS NOTED THAT THE ASSESS EE HAS NOT DEDUCTED TDS ON THE ABOVE PAYMENTS AS REQUIRED UNDER SECTION 194 - H OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') AND CALLED THE ASSESSEE TO EXPLAIN WHY DISALLOWANCE SHOULD NOT BE MADE. BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS SUBMITTED THAT HE HAS NOT DEDUCTED TDS WHILE MAKING COMMISSION PAYMENTS. THEREFORE, THE ASSESSING OFFICER HAS MADE THE DISALLOWANCE OF RS. 27,85,515/ - . 3 . ON APPEAL BE F ORE THE LD. CIT(A), IT WAS SUBMITTED THAT NONE OF THE PAYMENTS MADE IS IN EXCESS OF RS. 10,000/ - AND HENCE, NO TDS IS REQUIRED TO BE MADE. THE ASSESSEE HAS NOT FILED ANY INFORMATION IN SUPPORT OF SUCH PLEA TAKEN BEFORE THE LD. CIT(A), THEREFORE, LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 4 . BEFORE US, LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT ON 21/12/2016 NOTICE WAS ISSUED BY THE LD. CIT(A) TO APPEAR AND FILE THE DETAILS, BUT SUCH NOTICE WAS NOT RECEIVED BY HIM, THEREFORE , HE WAS NOT ABLE TO FILE THE RELEVANT DETAILS TO SUBSTANTIATE HIS CASE. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDERS PASSED BY THE AUTHORITIES BELOW. 3 ITA NO. 144/VIZ/2017 ( POTHINA VENKATA RAMANA ) 6 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 7 . THE ADDITION MADE BY THE ASSESSING OFFICER IS IN RESPECT OF COMMISSION PAYMENTS , AMOUNTING TO RS. 27,85,515/ - ON THE GROUND THAT NO TDS IS DEDUCTED. O N APPEAL , IT WAS SUBMITTED THAT NONE OF THE PAYMENTS MADE BY THE ASSESSEE IS IN EXCESS OF RS.10,000/ - AND HENCE, NO TDS IS REQUIRED TO BE MADE. THE CASE OF THE ASSESSEE BEFORE US IS THAT LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER ON THE GROUND THAT TH E ASSESSEE HAS FAILED TO FURNISH THE RELEVANT DETAILS TO SUBSTANTIATE HIS CLAIM . O N 21/12/2016 , T HE LD. CIT(A) GAVE A FINAL OPPORTUNITY TO APPEAR AND FILE THE DETAILS AND THAT NOTICE WAS NOT SERVED ON HIM , THEREFORE, HE WAS NOT ABLE TO FILE THE RELEVANT DE TAILS. THE LD. CIT(A) HAS PASSED THE EXPARTE ORDER. I N THE INTEREST OF JUSTICE AND ALSO BY CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE OPINION THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. THEREFORE, WE SET ASIDE THE ORDER P ASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE LD. CIT(A) TO CONSIDER THE DETAILS AND PASS THE ORDERS IN ACCORDANCE WITH LAW. WE ALSO DIRECT THE ASSESSEE TO FILE THE RELEVANT DETAILS BEFORE THE LD. CIT(A) ON THE DATE GIVEN BY HIM WITHOUT FAIL. 4 ITA NO. 144/VIZ/2017 ( POTHINA VENKATA RAMANA ) 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 8 T H DAY OF NOV ., 201 8 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 8 T H NOVEMBER , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE - POTHINA VENKATA RAMANA, D.NO. 61 - 1 - 11/2, MALKAPURAM, BESIDE PETROL BUNK, VISAKHAPATNAM. 2. THE REVENUE - ITO, WARD - 5(2), VISAKHAPATNAM. 3. THE CIT - 2, VISAKHAPATNAM. 4. THE CIT(A) - 2, VISAKHAPATNAM. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.