VISHAKHA EMBRIODERY PVT LTD, ULHASNAGAR V. I.T.O.WARD 1(4), KALYAN

ITA 1793/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84309 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 01-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 04-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Assessee Lawyers: SADHURAM G PUNJABI EXDIRECTOR
• Keywords: Opportunity of being heard
• Section: 194C

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.1793/MUM/2011 (AY: 2006-07 ) M/S. VISHAKA EMBROIDERY PVT. LTD. C/O. SHRI SADHURAM PUNJABI 310, SHIV LEELA APARTMENT OPP. LASSI HALL NERA HEMRAJ DAIRY ULHASNAGAR-421 001. ! ! ! ! / VS. INCOME TAX OFFICER WARD-(1)(4), RANI MANSION 2 ND FLOOR MURBAD ROAD, KALYAN. ( #$ / // / APPELLANT) ( %&#$ / RESPONDENT) P.A. NO.AACCV 0390 B #$ ' ( ' ( ' ( ' ( /APPELLANT BY : SHRI SADHURAM G. PUNJABI (EX-DIRECTOR) %&#$ ' ( ' ( ' ( ' ( /RESPONDENT BY : SHRI PAWAN KUMAR BEERLA ! ' )* / / / / DATE OF HEARING : 01/12/2014 +,- ' )* / DATE OF PRONOUNCEMENT : 01/12/2014 . . . . / / / / O R D E R PER JOGINDER SINGH (JM) : THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 30/10/2010 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI ON THE ITA NO.1793 /MUM/2011 VISHAKA EMBROIDERY P. LTD. 2 GROUND THAT THE LD. COMMISSIONER OF INCOME TAX (APP EALS) DECIDED THE APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FAC TS AND FURTHER, NOT CONSIDERING THE CONTENTION RAISED BY THE ASSESSEE T HAT NO DISALLOWANCE WAS CALLED FOR, SINCE THE PERSONS TO W HOM PAYMENTS WERE MADE HAD ALREADY FILED THEIR RETURNS INCLUDING THE AMOUNT RECEIVED FROM THE ASSESSEE COMPANY AND PAID DUE TAX THEREON, AS SUCH, NO LOSS IS CAUSED TO THE REVENUE, CONSEQUENTL Y, THE ASSESSEE HAS NOT COMMITTED ANY DEFAULT OF NON-DEDUCTION OF T AX AT SOURCE. 2. AT THE TIME OF HEARING, SHRI SADHURAM G. PUNJABI , APPEARED IN PERSON AND CONTENDED THAT HE IS IN A POSITION TO SU BSTANTIATE ITS CLAIM AS THE DUE TAX HAS ALREADY BEEN PAID. THE LD. DR SH RI PAWAN KUMAR BEERLA DEFENDED THE CONCLUSION DRAWN IN THE IMPUGNE D ORDER. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE CASE OF THE DEPAR TMENT IS THAT THE ASSESSEE CLAIMED EXPENDITURE OF RS.46,64,131/- ON A CCOUNT OF PAYMENT TOWARDS JOB-WORK CHARGES WITHOUT DEDUCTING TDS AND THUS, THE ASSESSING OFFICER, IN VIEW OF SECTION 194C OF T HE ACT, DISALLOWED THE EXPENDITURE INVOKING THE PROVISIONS OF SEC.40(A )(IA) OF THE ACT. WE NOTE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) PROCEEDED TO DECIDE THE APPEAL OF THE ASSESSEE, EX PARTE AS THE NECESSARY DETAILS COULD NOT BE FURNISHED BY THE ASSESSEE AS IS EVIDEN T FROM PARA-4 OF THE IMPUGNED ORDER. HOWEVER, BEFORE US, THE EX-DIRE CTOR OF THE ASSESSEE CONTENDED THAT NO LOSS TO THE REVENUE IS C AUSED AS THE PERSONS TO WHOM THE PAYMENTS WERE MADE HAD ALREADY FILED THE RETURNS, INCLUDING THE AMOUNTS RECEIVED FROM THE AS SESSEE COMPANY AND PAID THE DUE TAXES. IN VIEW OF THIS FACT, AND W ITHOUT GOING INTO MERITS/MUCH DELIBERATION WE REMAND APPEAL TO THE FI LE OF THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSE SSEE AND DECIDE IN ITA NO.1793 /MUM/2011 VISHAKA EMBROIDERY P. LTD. 3 ACCORDANCE WITH LAW, MORE SPECIFICALLY WHEN THE IMP UGNED ORDER IS EX-PARTE QUA THE ASSESSEE. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM, MUST BE GRANTED TO TH E ASSESSEE . THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING O N 1 ST DAY OF DECEMBER, 2014 . . ' +,- /!0 01.12.2014 , ' 6 SD/- SD/- (SANJAY ARORA) (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; /! DATED : 1 ST DEC. 2014. !../ JV, SR. PS . . ' %)7 87-) . ' %)7 87-) . ' %)7 87-) . ' %)7 87-)/ COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. 9 ( ) / THE CIT, MUMBAI. 4. 9 / CIT(A)-13, MUMBAI 5. 7<6 %)! , , / DR, ITAT, MUMBAI 6. 6= > / GUARD FILE. .! .! .! .! / BY ORDER, &7) %) //TRUE COPY// ? ?? ?/ // /@ A @ A @ A @ A (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI.