Jeeva Speciality Laboratory, Thrissur V. ITO, Trichur

ITA 173/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64873 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-09-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SREENIVASU KOLLIPAKA
• Assessee Lawyers: MOHAN PULICKAL

Judgement Text

1 ITA NO. 173/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO.173/COCH/2010 (ASSESSMENT YEAR 2006-07) JEEVA SPECIALITY LABORATORY VS THE ITO, WD.2(2) VISITORS BUILDING TRICHUR MG ROAD, TRICHUR PAN : AABFJ8225F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MOHAN PULICKAL RESPONDENT BY : SHRI SREENIVASU KOLLIPAKA DATE OF HEARING : 17-09-2012 DATE OF PRONOUNCEMENT : 12-10-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE TAXPAYER IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-V, KOCHI DATED 05-01-2010 AND PERTAIN S TO ASSESSMENT YEAR 2006-07. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS DISAL LOWANCE U/S 40(A)(IA) OF THE ACT. 3. SHRI MOHAN PULICKAL, THE LD.COUNSEL FOR THE TAXP AYER SUBMITTED THAT THE TAXPAYER HAS PAID PROFESSIONAL CHARGES TO TWO DOCTORS, VIZ. DR VIJAYALAKSHMI AND DR RENJI RAPHAEL AND PAYMENTS WERE MADE TO SPECIALIZED LABORATORIES FOR CONDUCTING TESTS. THESE PAYMENTS WERE CLAIMED AS DEDUCTION. HOWEVER, THE S AME WAS DISALLOWED ON THE GROUND THAT THE TAXPAYER FAILED TO DEDUCT TAX AT TH E TIME OF PAYMENT. ON A QUERY FROM THE BENCH WHETHER THE PAYMENTS WERE MADE BEFORE 31 ST MARCH OF THE ACCOUNTING YEAR, 2 ITA NO. 173/COCH/2010 THE LD.REPRESENTATIVE SUBMITTED THAT CERTAIN PAYMEN TS WERE MADE BEFORE 31 ST MARCH AS COULD BE FOUND FROM THE ASSESSMENT ORDER; HOWEVER, IT IS NOT CLEAR WHETHER ALL THE PAYMENTS WERE MADE BEFORE 31 ST MARCH. WE HEARD, SHRI SRINIVASU KOLLIPAKA, THE LD .DR ALSO. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. THE DISALLOWANCE WAS MADE ONL Y ON THE GROUND THAT THE TAXPAYER HAS NOT DEDUCTED TAX AT THE TIME OF PAYMENT. THE I SSUE OF DISALLOWANCE U/S 40(A)(IA) WAS ELABORATELY EXAMINED BY THE SPECIAL BENCH OF TH E VISAKHAPATNAM BENCH OF THIS TRIBUNAL IN THE CASE OF MERLIN SHIPPING & TRANSPORT CO ITA NO.477/VIZAG/2008 DATED 14- 03-2012. THE SPECIAL BENCH FOUND THAT THE AMOUNT P AYABLE AS AT 31 ST MARCH OF THE ACCOUNTING YEAR ALONE HAS TO BE CONSIDERED FOR DISA LLOWANCE U/S 40(A)(IA) OF THE ACT. THIS DECISION OF THE SPECIAL BENCH WAS NOT BROUGHT TO THE NOTICE OF THE LOWER AUTHORITIES. THEREFORE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE ASSESSING AUTHORITY HAS TO EXAMINE THE ISSUE IN THE LIGHT OF THE DECISION OF THIS TRIBUNAL IN THE CASE OF MERLIN SHIPPING & TRANSPORT CO (SUPRA). ACCORDI NGLY, THE ORDERS OF THE LOWER AUTHORITY ARE SET ASIDE AND THE ISSUE OF DISALLOWAN CE U/S 40A(IA) OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASS ESSING OFFICER SHALL RECONSIDER THE ISSUE AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH L AW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE TAXPAYER. 5. IN THE RESULT, APPEAL OF THE TAXPAYER IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH OCTOBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 12 TH OCTOBER, 2012 PK/- 3 ITA NO. 173/COCH/2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH