ITO 18(2)(4), MUMBAI V. INDUS DEVELOPERS, MUMBAI

ITA 1650/MUM/2013

• Counselvise Citation: 165019914 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJEEV JAIN
• Assessee Lawyers: POOJA SHAH
• Section: 194C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL I, BENC H MUMBAI . . , ..!'. , BEFORE SHRI B.R.BASKARAN, AM & DR.S.T.M.PAVALAN, JM ./ ITA NO.1650/MUM/2013 ( $ $ $ $ / ASSESSMENT YEAR :2009-10) ITO 18(2)(4), MUMBAI-400012 VS. M/S INDUS DEVELOPERS, 9/10, CHANDAN MANSION, GOKHALE ROAD (N), DADAR (W), MUMBAI-28 % ./ &' ./ PAN/GIR NO. : AACFI 3156 R ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) & + ++ + , , , , /REVENUE BY : MR. SANJEEV JAIN -. + ++ + , , , , /ASSESSEE BY : MS. POOJA SHAH + .' / DATE OF HEARING : 28 TH MAY, 2014 /0$ + .' / DATE OF PRONOUNCEMENT : 11 TH JUNE, 2014 1 1 1 1 / O R D E R PER B.R.BASKARAN (A.M.) : THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 27.01.2012 PASSED BY LD CIT(A) AND IT RELATES TO TH E ASSESSMENT YEAR 2009-10. 2 . THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CI T(A) IN DELETING THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. 3 . THE FACTS RELATING TO THE ABOVE SAID ISSUE ARE ST ATED IN BRIEF. THE ASSESSEE IS A BUILDER AND DEVELOPER AND DERIVES INC OME FROM HOUSE PROPERTY ALSO. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE AO NOTICED FOLLOWING DISCREPANCIES IN RESPECT OF THE L IABILITY TO DEDUCT AND REMIT THE TAX DEDUCTED AT SOURCE:- (A) THOUGH THE ASSESSEE HAS DEDUCTED TAX AT SOURC E (HEREIN AFTER TDS) ON THE PAYMENT OF RS.54,70,035/-, BUT THE TDS ITA NO.1650/13 3 ORDINATE BENCH HAS HELD THAT THE DISALLOWANCE IS NO T REQUIRED TO BE MADE IF THE TDS AMOUNT IS PAID ON OR BEFORE THE DUE DATE SPECIFIED IN SEC. 139(1) OF THE ACT. IN THE INSTANT CASE, THERE IS N O DISPUTE THAT THE TDS AMOUNT RELATING TO RS.54,70,035/- WAS REMITTED BEFO RE THE DUE DATE SPECIFIED IN SEC. 139(1) OF THE ACT. HENCE, THE R ATIO LAID DOWN BY THE CO- ORDINATE BENCH IN THE CASE OF PIYUSH C MEHTA (SUPRA ) IS APPLICABLE TO THE FACTS OF THE INSTANT CASE. SINCE THE LD CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE CO-ORDINATE BENCH IN THE ABOVE CITE D CASE, WE DO NOT FIND ANY REASON TO INTERFERE WITH HIS ORDER ON THIS ISSU E. 5 . WITH REGARD TO THE DISALLOWANCE OF RS.50,000/ - RELATING TO THE PAYMENT MADE TO M/S ANKITA TRANSPORTS, THE LD CIT(A ) HAS DELETED THE ADDITION BY ACCEPTING THE CONTENTION OF THE ASSESSE E THAT THE SAME IS NOT ATTRACTED BY THE PROVISIONS OF SEC. 194C OF THE ACT . 5.1 HOWEVER, A CAREFUL PERUSAL OF THE PROVISIONS O F SUB-SEC. (5) OF SEC. 194C WOULD SHOW THAT THE ACT PRESCRIBES TWO FOLD LI MITS, VIZ., A LIMIT OF RS.20,000/- FOR EACH CONTRACT AND THE AGGREGATE AMO UNT OF RS.50,000/- FOR ONE YEAR, MEANING THEREBY, THE TDS IS NOT REQUI RED TO BE DEDUCTED IF THE CONTRACT AMOUNT DOES NOT EXCEED RS.20,000/- AND IF THE AGGREGATE AMOUNT OF CONTRACT AMOUNTS PAID IN A YEAR DOES NOT EXCEED RS.50,000/-. IN THE INSTANT CASE, THE DETAILS OF PAYMENTS MADE T O M/S ANKITA TRANSPORTS WERE NOT EXAMINED BY LD CIT(A) AND IT WA S ALSO NOT FURNISHED TO US. THOUGH THE AGGREGATE AMOUNT PAID IN A YEAR HAS BEEN CLAIMED TO HAVE NOT EXCEEDED RS.50,000/-, YET THE ASSESSEE WOU LD BE LIABLE TO DEDUCT TAX AT SOURCE, IF THE AMOUNT OF INDIVIDUAL C ONTRACT (AVAILABLE WITHIN ITA NO.1650/13 5 M/S RISHAB ELECTRICALS HAVE NOT BEEN BROUGHT ON REC ORD. WE NOTICE THAT THE LD CIT(A) HAS RENDERED HIS DECISION ON THIS ISS UE WITHOUT VERIFYING THE TERMS OF CONTRACT. HENCE, WE ARE UNABLE TO SUSTAIN HIS DECISION ON THIS ISSUE. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD C IT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH THE DIR ECTION TO EXAMINE THE ISSUE AFTER CALLING THE DETAILS AND TAKE APPROPRIAT E DECISION IN ACCORDANCE WITH THE LAW. 7 . THE NEXT ISSUE RELATES TO THE DISALLOWANCE OF INTEREST EXPENDITURE OF RS.1,80,000/-. THE ASSESSEE SUBMITTED BEFORE THE A O THAT THERE IS NO REQUIREMENT OF DEDUCTION OF TDS, SINCE THE PAYEES H AVE FURNISHED FORM NO.15G. THE AO, HOWEVER, DISALLOWED THE ABOVE SAID AMOUNT ON THE REASONING THAT THE ASSESSEE HAS FAILED TO FURNISH T HE DETAILS OF FURNISHING FORM NO.15G TO THE TAX AUTHORITIES. BEFORE LD CIT( A), THE ASSESSEE SUBMITTED THAT IT HAS FURNISHED THE COPIES OF FORM NO.15G TO THE CONCERNED OFFICER ON 19.1.2012. THOUGH THE AO HAS POINTED IN THE REMAND REPORT FURNISHED BEFORE LD CIT(A) THAT THE D ATE OF FURNISHING OF FORM NO.15G FALLS BEYOND THE DATE OF THE ASSESSMENT ORDER, YET THE LD HAS FURNISHED THE COPIES OF FORM NO.15G BEFORE THE TAX AUTHORITIES. 7.1 WE HAVE HEARD THE PARTIES ON THIS ISSUE. THE ASSESSMENT IN THE HANDS OF THE ASSESSEE WAS COMPLETED ON 26.12.2011. THE ASSESSEE CLAIMS TO HAVE FURNISHED THE COPIES OF FORM NO.15G TO THE CONCERNED OFFICER ONLY ON 19.01.2012. HENCE, AS ON THE DATE OF PASSING OF ASSESSMENT ORDER, THERE IS FAILURE ON THE PART OF T HE ASSESSEE TO FURNISH THE COPIES OF FORM NO.15G TO THE CONCERNED OFFICER. WHEN THIS WAS ITA NO.1650/13 7 1 1 1 1 + ++ + ).2 ).2 ).2 ).2 32$. 32$. 32$. 32$. / COPY OF THE ORDER FORWARDED TO : 1 1 1 1 / BY ORDER, 4 44 4 / 5 5 5 5 & & & & ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 6 ( ) / THE CIT(A), MUMBAI. 4. 6 / CIT 5. 278 ). , , / DR, ITAT, MUMBAI 6. 8 9 / GUARD FILE. *2. ). //TRUE COPY//