ACIT, Circle-16(3), Hyderabad V. M/S Priyadarshini Spinning Mills Ltd., Hyderabad

ITA 1700/HYD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3262 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 31-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Section: 195

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT & SHRI AKBER BASHA, ACCOUNTANT MEMBER I.T.A. NO. 1700/HYD/2010 ASSESSMENT YEAR 2007-2008 THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-16(3), HYDERABAD. VS. M/S. PRIYADARSHINI SPINNING MILLS LTD., HYDERABAD PAN: AABCP2284K APPL IC ANT RESPONDENT APPELLANT BY: MR. K.V.N. CHARYA RESPONDENT BY: MR. A. SRINIVAS O R D E R PER G.C. GUPTA, VP: THIS APPEAL BY THE REVENUE, FOR THE ASSESSMENT YEA R 2007-08, IS DIRECTED AGAINST THE ORDER OF THE CIT(A )-V, HYDERABAD DATED 21.10.2010. 2. THE GROUNDS OF APPEAL BY THE REVENUE ARE AS UNDER: 1. THE HONBLE COMMISSIONER OF INCOME-TAX (APPEALS)-V, HYDERABAD ERRED BOTH IN FACTS AND LAW. 2. THE HONBLE COMMISSIONER OF INCOME-TAX (APPEALS)-V, HYDERABAD ERRED IN ALLOWING PAYMENT OF COMMISSION OF RS. 74,19,331/- ON EXPORT SALES. 3. THE HONBLE COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE PROVISIONS OF SECTION 195 OF I.T. ACT ARE CLEARLY APPLICABLE IN THE CASE OF THE ASSESSEE AND AS THE ASSESSEE FAILED TO DEDUCT TAX AT SOURCE, THE DISALLOWANCE MADE U/S. 40(A)(I) OUGHT TO HAVE BEEN UPHELD. I.T.A. NO. 1700/HYD/2010 M/S. PRIYADARSHINI SPINNING MILLS LTD. ============================ 2 4. THE HONBLE COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE HELD THAT THE PROVISIONS OF SECTION 5(2)(A) ARE APPLICABLE AS THE COMMISSION PAYMENTS ARE DEEMED TO HAVE BEEN RECEIVED IN INDIA. 3. THE LEARNED DR SUBMITTED THAT THE ISSUE IN THE GROUNDS OF APPEAL OF THE REVENUE IS COVERED WITH THE DECISION OF THE HYDERABAD TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEARS 2000-01, 2002-03 TO 200 4-05 IN I.T.A. NOS. 373/HYD/07, 550/HYD/06, 374/HYD/07 A ND 1065/HYD/08 DATED 10.2.2010, WHEREIN THE ISSUE WAS SE T ASIDE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE TH E ISSUE AFRESH IN THE LIGHT OF THE SUPREME COURT DECISION IN OGALE GLASS WORKS LTD., 25 ITR 529. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUPPORTED THE CONTENTION OF THE LEARNED DR. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE IN THE GROUNDS OF APPEAL OF THE REVENUE I S COVERED WITH THE DECISION OF THE HYDERABAD TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 2000-01, 2002-03 TO 2 004-05 DATED 10.2.2010 (SUPRA), WHEREIN THE ISSUE WAS SET ASI DE TO THE FILE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTION . WE BEING IN AGREEMENT WITH THE DECISION OF THE CO-ORDIN ATE BENCH OF THE TRIBUNAL AND THE ISSUE BEING IDENTICAL, RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AND IN THE LIGHT OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF OGALE GLASS WORKS LTD. (SUPRA), AFTER AFF ORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE DIRECT ACCORDINGLY. I.T.A. NO. 1700/HYD/2010 M/S. PRIYADARSHINI SPINNING MILLS LTD. ============================ 3 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2011. SD/- (AKBER BASHA) ACCOUNTANT MEMBER SD/- (G.C. GUPTA) VICE PRESIDENT HYDERABAD, DATED 15 TH JUNE, 2011 TPRAO COPY FORWARDED TO: 1. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-16(3) , 6 TH FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 2. M/S. PRIYADARSHINI SPINNING MILLS LTD., ICON BLO CK, SATYANARAYANA ENCLAVE, D. NO. 1-56, MADINA GUDA, NEAR MIYAPUR, HYDERABAD. 3. THE CIT(A)-V, HYDERABAD 4 THE CIT-IV, HYDERABAD. 5. THE DR A BENCH, ITAT, HYDERABAD `