M/s Sagar Healthcare & Diagnostic Service Pvt Ltd, Bangalore V. Addl. Commissioner of Income Tax, Range-5, Bangalore

ITA 1601/BANG/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6089 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 25-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: HARISH RAO B
• Keywords: TDS; Rule 8D; Set aside
• Section: 143(3); 142(1); 234B; 14A; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES C BENCH: BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA. NO. 1601 /BANG/2018 (ASSESSMENT YEAR: 201 2 - 13 ) M/S. SAGAR HEALTHCARE & DIAGNOSTIC SERVICES P. LTD., NO.44/54, 30 TH CROSS, TILAKNAGAR, JAYANAGAR EXTENSION, BANGALORE - 560 041 PAN: AACCS 9646M VS. ADDL. COMMISSIONER OF INCOME TAX , RANGE 5, BANGALORE. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI HARISH RAO B, C.A. REVENUE BY: DR. P. V. PRADEEP KUMAR, ADDL. CIT (D.R) DATE OF HEARING : 10.07 .2019 DATE OF PRONOUNCEMENT : 02 .08 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JM : THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), BANGALORE PASSED UNDER SECTION 143(3) AND 250 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 2 ITA NO.1601/BANG/2017 3. THE BRIEF FACTS OF THE CASE ARE THAT THE AS IS ENGAGED IN HOSPITAL SERVICES AND FILED THE RETURN OF INCOME ON 30.09.2009 DECLARING TOTAL INCOME OF RS.9,1,32,370 AND T HE CASE WAS SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION143(2) AND 142(1) OF TH E ACT WERE ISSUED . IN COMPLIANCE, THE LEARNED AUTHORISED REPRESENTATIVE 3 ITA NO.1601/BANG/2017 APPEARED FROM TIME TO TIME BEFORE THE ASSESSING OFFICER AND SUBMITTED THE DETAILS. THE ASSESSING OFFICER CONSIDERING THE FINANCIAL STATEMENTS OF THE ASSESSEE FOUND THAT THE ASS ESSEE HAS RECEIVED DIVIDEND INCOME OF RS.1,84,229 AND HAS MADE INVESTMENT S TO THE EXTENT OF RS.15,14,06,308 AND CALLED FOR DETAILS OF EXPENDITURE INCURRED FOR SUCH DIVIDEND INCOME . THE ASSESSING OFFICER CONSIDERING THE INVESTMENT S MADE ADDITION UNDER SE CTION 14A R.W. RULE 8D(III) OF RS.6,59,951 AND DISALLOWED THE PENAL INTEREST OF RS.52,912 AND ASSESSED THE TOTAL INCOME OF RS.9,19,45,233. AGGRIEVED BY THE ORDER OF ASSESSMENT, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(APPEALS). THE CIT(APPEALS) CONSI DERING THE SUBMISSIONS OF THE ASSESSEE AND FINDINGS OF THE ASSESSING OFFICER CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 14A OF THE ACT AND THE DISALLOWANCE OF PENAL INTEREST AND DISMISSED THE ASSESSEE'S APPEAL. AGGRIEVED BY THE ORD ER OF CIT(APPEALS), THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED ON THE FIRST DISPUTED ISSUE OF DISALLOWANCE UNDER SECTION 14A R.W. RULE 8D(2)(III) IN THE COMPUTATION OF INCOME , THE LEARNED AUTHORISED REPRESENTATIVE EMPHASIZED THAT SUCH DISALLOWANCE SHALL NOT EXCEED THE DIVIDEND INCOME AND FILED WRITTENSUBMISSIONS IN PAPER BOOK TO SUPPORT THE STAND A N D FOR THE PAYMENT OF INTEREST OF RS.52,912 IN RESPECT OF DELAY IN PAYM ENT O F SERVICE TAX AND TDS ARE 4 ITA NO.1601/BANG/2017 COMPENSATORY IN NATURE AND HAS TO BE ALLOWED AS EXPENDITURE AND PRAYED FOR ALLOWING THE APPEAL. CONTRA, THE LD. DR RELIED ON THE ORDERS OF THE CIT(APPEALS). 5. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECO RD. PRIMA FACIE, THE LEARNED AUTHORISED REPRESENTATIVES CONTENTION THAT AT THE TIME OF COMPUTING THE TOTAL INCOME THE ASSESSEE HAS SUO MOTO MADE DISALLOWANCE OF EXPENSES TO THE EXTENT OF RS.1,54,263 AS AGAINST DIVIDEND INCOME OF RS.1,84,229. BUT WHEREA S T HE ASSESSING OFFICER FURTHER MADE DISALLOWANCE UNDER SECTION 14A OF THE ACT OF RS.6,59,951 OVERLOOKING THE FACTS THAT THE ASSESSEE HAS DISALLOWED EXPENDITURE IN THE COMPUTATION OF INCOME. THE LD. AR DEMONSTRATED WITH EXHIBIT S SUPPORTS THE DISALLOWANCE OF RS.1,54,263. ON PERUSAL OF THE CIT(APPEALS) ORDER, WE FIND THAT THERE IS NO FINDING ON THIS DISALLOWANCE ISSUE IN RESPECT OF SUO MOTO DISALLOWANCE. W E ARE OF THE OPINION THAT THE CIT(APPEALS) ORDER IS NOT CLEAR AND NO PROPER FINDING ON THE DISPUTE AND RESTORE THE MATTER OF DISALLOWANCE UNDER SECTION 14A TO THE FILE OF CIT(APPEALS) TO DECIDE AF RESH TAKING INTO CONSIDERATION THE SUO MOTO DISALLOWANCE OF THE ASSESSEE AND ON THE SECOND DISPUTED ISSUE THE ASSESSEE HAS RAISED THE GROUNDS O F APPEAL NO.5 BEFORE THE CIT(APPEALS) AND ON PE RUSAL OF THE CIT(APPEALS) ORDER THERE IS NO FINDING OR DECISION ON THIS ISSUE. ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FILE OF CIT(APPEALS) TO ADJUDICATE ON MERITS WHEREAS INTEREST UNDER SECTION 234B & 234C OF THE ACT IS CONSEQUENTIAL AND WE DIRECT ACCORDINGLY. ACCORDINGLY ORDER OF CIT (APPEALS) IS SET ASIDE AND 5 ITA NO.1601/BANG/2017 RESTORE THE ENTIRE DISPUTED ISSUES ALONG WITH MATERIAL FILED TO THE FILE OF CIT(APPEALS) TO ADJUDICATE AFRESH AND PASS A SPEAKING AND REASONABLE OR DER AND THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING AND CO - OPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF THE APPEAL AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 6. IN THE RESULT, TH E APPEAL OF ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 N D AUG., 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 0 2 .08. 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE