ITO, Tuticorin V. M/s. Asthalakshmi Logistice, Tuticorin

ITA 1789/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64551 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G BASKAR
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE RIBUNAL A BENCH CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ---------- ITA NO. 1789/MDS/2012 ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER, WARD-I(1), TUTICORIN. V. M/S. ASHTALAKSHMI LOGISTICS, 51/8-H-1, MUNIASAMYPURAM EXTN. 2 ND STREET, TUTICORIN. (PAN : AALFA5553H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P. JACOB, ADDL. CIT RESPONDENT BY : SHRI G.BASKAR,ADVOCATE DATE OF HEARING : 27.1 1.2012 DATE OF PRONOUNCEMENT : 27.11.201 2 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS)-I, MADURAI DATED 25-06-2012 FOR THE ASSESSMENT YEAR 2008-09. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE, A PART NERSHIP FIRM, IS OPERATING TRUCKS/TRAILORS FOR HIRE. FOR T HE YEAR UNDER ITA NO.1789/MDS/2012 2 CONSIDERATION THE ASSESSEE FILED ITS RETURN OF INCO ME ON 29.11.2008 ADMITTING TOTAL INCOME OF ` 995/-. THE RETURN OF INCOME WAS INITIALLY PROCESSED U/S 143(1) ON 25.08. 2009. THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFI CER FOUND THAT THE ASSESSEE DID NOT DEDUCT TAX U/S 194C OF TH E INCOME TAX ACT, 1961 ('THE ACT' FOR SHORT) FOR PAYMENT TO THE TUNE OF ` 1,02,37,913/- TOWARDS FREIGHT CHARGES. ACCORDINGLY , THE ASSESSING OFFICER DISALLOWED THE ENTIRE SUM OF ` 1,02,37,913/- UNDER SEC. 40(A)(IA) OF THE ACT. 3. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE CIT(APPEALS). AFTER CONSIDERING THE SUBMISSIONS MA DE BY THE ASSESSEE, THE LEARNED CIT(APPEALS) HELD AS UNDER VI DE PARA 5.6 OF HIS ORDER : 5.6. THE ITAT, CHENNAI BENCH IN ASSESSEES OWN CASE FOR ASST. YEAR 2007-08 IN ITS ORDER IN ITA NO. 1239(MDS)/2010 DATED 16-04-2012 HELD THAT SECTION 40(A)(IA) APPLIES ONLY TO THOSE AMOUNTS PAYABLE AS ON THE LAST DAY AND NOT APPLICABLE TO THE AMOUNT PA ID WITHIN THE PREVIOUS YEAR BY FOLLOWING THE DECISION OF SPECIAL BENCH OF VIZAG TRIBUNAL IN THE CASE OF MERLY N SHIPPING ENTERPRISES IN ITA NO. 477(VIZ)/2008. HENCE, THE AMOUNT OUTSTANDING PAYABLE AS ON 31.03.2008 ON WHICH NO TDS WAS EFFECTED, IN MY ITA NO.1789/MDS/2012 3 VIEW, WOULD ATTRACT THE PROVISIONS OF SECTION 40(A) (IA) OF THE IT ACT. CONSEQUENTLY, A SUM OF ` 4,97,523/- CAN ALONE BE CONSIDERED FOR DISALLOWANCE U/S 40(A)(IA) OF THE ACT AND NOT ENTIRE AMOUNT OF ` 1,02,37,913/- AS DECIDED BY ASSESSING OFFICER I, THEREFORE, DIRECT THE ASSESSING OFFICER TO RESTRICT DISALLOWANCE U/S 40(A)(IA) OF THE ACT TO A SUM OF ` 4,97,523/- AS AGAINST ` 1,02,37,913/-. 4. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. THE LEARNED DR SUPPORTED THE ORDER PASSED BY THE ASSESS ING OFFICER. ON THE OTHER HAND, THE LEARNED COUNSEL FO R THE ASSESSEE SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(APPEALS). 5. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LEARNED CIT(APPEALS) HAS RESTRICTED THE DISALLO WANCE U/S 40(A)(IA) OF THE ACT OUT OF THE ENTIRE AMOUNT OF ` 1,02,37,913/- BY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE AS SESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 IN ITA NO. 1239/MDS/2010 DATED 16-04-2012, WHEREIN THE TRIBUNA L HAS FOLLOWED THE DECISION OF THE SPECIAL BENCH OF VISAKH APATNAM BENCH OF THIS TRIBUNAL IN THE CASE OF MERLYN SHIPPIN G ITA NO.1789/MDS/2012 4 ENTERPRISES (2012) 16 ITR (TRIB) 1 (VISAKHAPATNAM) (SB). WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE LEARNE D CIT(APPEALS). WE ACCORDINGLY CONFIRM THE ORDER PAS SED BY THE LEARNED CIT(APPEALS) AND DISMISS THE GROUND RAISED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON TUESDAY, THE 27 TH OF NOVEMBER, 2012, AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) (V.DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 27 TH NOVEMBER, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE