DSM Soft Private Limited, CHENNAI V. ACIT, CHENNAI

ITA 1897/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96357 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 28-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: B RAMAKRISHNAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C' BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NOS. 1897 & 1898/MDS/2015 / ASSESSMENT YEARS : 2008-09 & 2009-10 M/S DSM SOFT PVT. LTD NO.1, 15 TH CROSS STREET SHASTRI NAGAR, ADYAR CHENNAI 600 020 VS. THE ASSTT. COMMISSIONER OF INCOME-TAX COMPANY CIRCLE I(4) CHENNAI [PAN AAACD 3149 A ] ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : SHRI B. RAMAKRISHNAN, CA /RESPONDENT BY : S HRI A.V SREEKANTH, JCIT / DATE OF HEARING : 28 - 10 - 2015 ! / DATE OF PRONOUNCEMENT : 13 - 11 - 2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAIN ST SEPARATE ORDERS OF THE COMMISSIONER OF INCOME-TAX ( APPEALS)-I, CHENNAI DATED 27.7.2015 FOR ASSESSMENT YEARS 2008-0 9 AND 2009-10. I.T.A.NO. 1897/MDS/2015 A.Y 2008-09 2. SHRI B. RAMAKRISHNAN, LD. REPRESENTATIVE FOR THE A SSESSEE SUBMITTED THAT THE ASSESSEE-COMPANY ALONGWITH ITS A SSOCIATE ITA NOS.1897 & 1898/15 :- 2 -: COMPANY, M/S DSM INFOSYSTEMS PVT. LTD PROVIDED SERV ICES TO M/S SCONSE SOLUTIONS. BOTH ASSESSEE-COMPANY AND ITS AS SOCIATE COMPANY RAISED SEPARATE INVOICES FOR THE SERVICES RENDERED BY THEM OF ` 4,95,285/-. HOWEVER, OUT OF ` 4,95,285/-, AN INVOICE TO THE EXTENT OF ` 1,57,832/- RAISED BY THE ASSESSEE-COMPANY WAS NOT REFLECTED IN THE TDS FORM 16A. AFTER EXCLUDING ` 1,57,832/-, THE TOTAL SERVICE PROVIDED BY THE ASSESSEE COMES TO EARLY ` 6,85,848/-. M/S SCONCE SOLUTIONS WRONGLY REMITTED TDS ON THE ENTIRE SERVICE OF GROUP AMOUNTING TO ` 6,85,848/- WHICH INCLUDES THE SERVICE RENDERED BY T HE ASSESSEE- COMPANY AND THE ASSOCIATE COMPANY IN THE PAN OF THE ASSESSEE- COMPANY. WHEN THE ASSESSEE CONTACTED M/S SCONCE S OLUTIONS, IT REFUSED TO MAKE CORRECTION IN THE TDS RETURN ALREAD Y FILED BY THEM. THEREFORE, THE ASSESSEE CLAIMED THE ENTIRE CREDIT ON THE TOTAL INVOICE TO THE EXTENT OF ` 6,85,848/-. THE ASSESSING OFFICER FURTHER FOUND T HAT THE DIFFERENCE AMOUNT OF ` 3,48,000/- WHICH WAS OFFERED IN THE HANDS OF THE ASSOCIATE CONCERN CANNOT BE CONSIDERED AS PE R THE REVENUE MATCHING CONCEPT. REFERRING TO THE TDS CERTIFICATE , THE ASSESSING OFFICER FOUND THAT TAX WAS DEDUCTED ONLY IN THE HAN DS OF THE ASSESSEE, THEREFORE, THE ENTIRE AMOUNT OF ` 3,48,000/- HAS TO BE OFFERED IN THE HANDS OF THE ASSESSEE-COMPANY. ACCO RDING TO THE LD. REPRESENTATIVE, ` 3,48,000/- WAS ALREADY OFFERED IN THE HANDS OF ITA NOS.1897 & 1898/15 :- 3 -: ASSOCIATE COMPANY VIZ. M/S DSM INFOSYSTEMS PVT. LTD AND TAX WAS ALSO PAID. THE LD. REPRESENTATIVE HAS ALSO FILED THE CO PIES OF INVOICES RAISED BY THE RESPECTIVE COMPANIES FOR THE SERVICE S RENDERED BY THEM. 3. ON THE CONTRARY, SHRI A.V SREEKANTH, LD. DEPARTMENT AL REPRESENTATIVE SUBMITTED THAT THE DEDUCTOR COMPANY DEDUCTED THE ENTIRE AMOUNT AND CREDITED THE SAME IN THE HANDS OF THE ASSESSEE-, THEREFORE, THE REVENUE HAS GIVEN CREDIT FOR THE TDS MADE BY THE DEDUCTOR COMPANY. HENCE, THE INCOME RELATABLE TO T HE TDS CREDIT HAS TO BE ASSESSED ONLY IN THE HANDS OF THE ASSESSEE-CO MPANY. THE LD. DR FURTHER POINTED OUT THAT WHEN THE ASSESSEE CLAIMS CREDIT FOR THE TDS MADE BY THE DEDUCTOR COMPANY, IT CANNOT CLAIM BEFOR E THE TRIBUNAL THAT THE INCOME RELATABLE TO THE TDS DEDUCTED BY TH E DEDUCTOR COMPANY HAS TO BE ASSESSED IN THE HANDS OF THE ASSO CIATE CONCERN. THEREFORE, THE CIT(A) HAS RIGHTLY CONFIRMED THE ADD ITION MADE BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. TH E ASSESSEE HAS FILED MATERIAL EVIDENCES TO ESTABLISH THAT THE SERVICES W ERE RENDERED NOT ONLY BY THE ASSESSEE-COMPANY BUT ALSO BY ITS ASSOCI ATE COMPANY VIZ. M/S DSM INFOSYSTEMS PVT. LTD. THE INVOICES AND OTH ER MATERIAL FILED BEFORE THIS TRIBUNAL SHOW THAT BOTH THE COMPANIES R ENDERED THEIR ITA NOS.1897 & 1898/15 :- 4 -: RESPECTIVE SERVICES TO M/S SCONSE SOLUTIONS. HOWEVE R, WHILE MAKING PAYMENT, THE ENTIRE TDS CREDIT WAS GIVEN IN THE HAN DS OF THE ASSESSEE-COMPANY. SINCE THE ASSESSEE HAS FILED TH E VOUCHERS FOR THE RESPECTIVE SERVICES RENDERED BY THE COMPANY, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECO NSIDERED BY THE ASSESSING OFFICER. IN OTHER WORDS, THE ASSESSING O FFICER HAS TO EXAMINE THE INVOICES AND OTHER MATERIAL FILED BY TH E ASSESSEE AND FIND OUT IN WHOSE HANDS THE RESPECTIVE INCOME HAS TO BE ASSESSED. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE AS SESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE COPIES OF TH E INVOICES AND OTHER MATERIAL FILED BY THE ASSESSEE AND DECIDE THE ISSU E AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPOR TUNITY TO THE ASSESSEE. I.T.A.NO.1898/MDS/2015 A.Y 2009-10 5. IN THIS APPEAL, THE ONLY ISSUE ARISES FOR CONSIDERA TION IS DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S 40( A)(IA) OF THE ACT. 6. WE HEARD SHRI B. RAMAKRISHNAN, LD. REPRESENTATIVE F OR THE ASSESSEE AND SHRI A.V SREEKANTH, LD. DEPARTMENTAL REPRESENTATIVE. 7. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE-COMPA NY FAILED TO DEDUCT TAX ON THE PAYMENT MADE TO VARIOUS PERSONS UNDER ITA NOS.1897 & 1898/15 :- 5 -: DIFFERENT HEADS, THEREFORE, HE DISALLOWED A SUM OF ` 4,83,892/- U/S 40(A)(IA) OF THE ACT. ON APPEAL, THE CIT(A) CONF IRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON THE B ASIS OF THE JUDGMENT OF THE GUJARAT HIGH COURT IN THE CASE OF C IT VS SEKANDERKHAN N TUNWAR IN TAX APPEAL NO.905 OF 2012. 8. THIS TRIBUNAL IN THE CASE OF ITO VS SHRI D. UMAPA THY IN I.T.A.NO. 2435/MDS/2014 HAD AN OCCASION TO CONSIDE R AN IDENTICAL ISSUE. AFTER CONSIDERING VARIOUS CASE LAWS ON THE SUBJECT, THIS TRIBUNAL FOUND THAT WHEN THE ASSESSEE FAILED TO DEDUCT TAX, THE DISALLOWANCE HAS TO BE MADE U/S 40(A)(IA) OF THE ACT. IN FACT, THIS TRIBUNAL HAS OBSERVED AS FOLLOWS: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EI THER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS AN ADMITTED FACT THAT THE POINT OF DEDUCTION OF TAX AT SOURCE IS AT THE T IME OF PAYMENT OR CREDIT OF THE AMOUNT TO THE ACCOUNT OF THE PAYEE. NO PROVISION OF INCOME-TAX ACT REQUIRES THE ASSESSEE TO DEDUCT TAX AT SOURCE IN RESPECT OF THE AMOUNT WHICH WAS NOT PAID. IN OTHER WORDS, IN RESPECT OF THE AMOUNT WHICH REMAINS PAYABLE OR TO B E CREDITED, THE INCOME-TAX ACT DOES NOT REQUIRE DEDUCTION OF TA X. THEREFORE, IF THE ASSESSEE HAS NOT PAID OR CREDITED ANY AMOUNT TO THE ACCOUNT, THEN THERE IS NO QUESTION OF DEDUCTION OF TAX UNDER ANY OF THE PROVISION OF THE INCOME-TAX ACT. THE CONTENTIO N OF THE ASSESSEE THAT THE TAX HAS TO BE DEDUCTED ONLY ON TH E AMOUNT REMAINS PAYABLE ON THE LAST DATE OF FINANCIAL YEAR AND THE DEDUCTION NEED NOT BE MADE ON THE AMOUNT ALREADY PA ID, IS CONTRARY TO PROVISIONS OF INCOME-TAX ACT WHICH REQU IRES DEDUCTION OF TAX. IF THE CONTENTION OF THE ASSESSEE IS ACCEP TED, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ENTIRE PROVIS IONS OF INCOME- TAX ACT WHICH REQUIRE THE ASSESSEE TO DEDUCT TAX WO ULD BE MEANINGLESS. IN FACT, THIS TRIBUNAL EXAMINED THE I SSUE ELABORATELY ITA NOS.1897 & 1898/15 :- 6 -: IN I.T.A. NOS.336 & 337/MDS/2015 IN SHRI V. PANDARI NATHAN V. ITO DATED 29.05.2015 AND OBSERVED AS FOLLOWS:- 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE FIRST CONTENTION OF THE ASSESSEE IS TH AT THE ASSESSEE HAD ALREADY PAID ON OR BEFORE 31.03.2010 AND NOTHING REMAINED TO BE PAID. THE LD. REPRESENTATIVE PLACED RELIANCE ON THE JUDGMENT OF ALLAHABAD HIGH COURT IN VECTOR SHIPPING SERVICES (P ) LTD. (SUPRA) AND ON THE DECISION OF THIS BENCH OF TH E TRIBUNAL IN THEEKATHIR PRESS (SUPRA). WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF ALLAHABAD HIGH COURT IN VECTOR SHIPPING SERVICES (P) LTD. (SUPRA). THE ALLAHABAD HIGH COURT, WHILE CONSIDERI NG THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL I N MERILYN SHIPPING AND TRANSPORT (SUPRA), MADE A PASSING REFERENCE ABOUT THE DECISION TAKEN BY THE SPECIAL BENCH OF THIS TRIBUNAL. THE ALLAHABAD HIGH COURT HAD NO OCCASION TO EXAMINE THE LEGALITY AND OTHERWISE OF THE SPECIAL BENCH OF THIS TRIBUNAL. WE FIND THAT THAT CALCUTTA HIGH COURT IN CIT V. CRESCE NT EXPORT SYNDICATES AND GUJARAT HIGH COURT IN CIT V. SIKANDARKHAN N. TUNVAR HAD AN OCCASION TO EXAMINE THE LEGALITY OR OTHERWISE OF THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL. THE CALCUTTA HIGH COURT AND THE GUJARAT HIGH COURT HAVE EXAMINED THE MATTER IN DETAIL AND FOUND THAT THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IS NOT SUSTAINABLE IN LAW. HOWEVER, THE ALLAHABAD HIGH COURT BY WAY OF PASSING REFERENCE DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE. THE SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THE JUDGMENT OF ALLAHABAD HIGH COURT IN VECTOR SHIPPING SERVICES (P) LTD. (SUPRA) WAS REJECTED BY THE APEX COURT AT THE ADMISSION STATE. THEREFORE, THE APEX COURT HAS NOT LAID DOWN ANY LAW. IN OTHER WORDS, MERE DISMISSAL OF THE SPECIAL LEAVE PETITION BY THE APEX COURT AT THE ADMISSION STAGE DOES NOT AMOUNT TO LAYING DOWN ANY LAW ON THE ELABORATE JUDGMENTS ON THE GROUND ITA NOS.1897 & 1898/15 :- 7 -: CALCUTTA HIGH COURT AND GUJARAT HIGH COURT AVAILABL E ON THE SAME SUBJECT. ON IDENTICAL CIRCUMSTANCES, THE COCHIN BENCH OF THIS TRIBUNAL IN THOMAS GEORGE MUTHOOT V. ACIT IN I.T.A. NO.63 & 64/COCH/2014 HAD AN OCCASION TO CONSIDER AN IDENTICAL ISSUE. TH E COCHIN BENCH HAS OBSERVED AS FOLLOWS:- 12. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMEN T OF THE ALLAHABAD HIGH COURT IN CIT VS M/S VECTOR SHIPPING SERVICES (P) LTD (SUPRA), COPY OF WHICH IS FILED BY THE ASSESSEE. THE ALLAHABAD HIGH COURT, AFTER REPRODUCING THE RELEVANT PARAGRAPH FROM THE ORDER O F CIT(A) AND REFERRING TO THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN MERILYIN SHIPPING & TRANS PORTS (SUPRA) FOUND THAT THE TRIBUNAL HAS NOT COMMITTED A N ERROR. IT IS OBVIOUS THAT THERE IS NO DISCUSSION AB OUT THE CORRECTNESS OR OTHERWISE OF THE DECISION RENDERED B Y THE SPECIAL BENCH OF THIS TRIBUNAL IN MERILYN SHIPP ING & TRANSPORTS (SUPRA). HOWEVER, WE FIND THAT THE GUJAR AT HIGH COURT IN THE CASE OF CIT VS SIKANDARKHAN N TUNVAR ITA NOS 905 OF 2012, 709 & 710 OF 2012, 333 OF 2013, 832 OF 2012, 857 OF 2012, 894 OF 2012, 928 OF 2012, 12 OF 2013, 51 OF 2013, 58 OF 2013 AND 218 OF 2013 JUDGMENT DATED 02-05-2013 CONSIDERED THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN M ERILYN SHIPPING & TRANSPORTS (SUPRA) AND SPECIFICALLY DISAGREED WITH THE PRINCIPLES LAID DOWN BY THE SPEC IAL OF THIS TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS (SUP RA). THE CALCUTTA HIGH COURT ALSO IN THE CASE OF CRESCEN T EXPORTS SYNDICATE & ANOTHER IN ITAT 20 OF 2013 AND GA 190 OF 2013 JUDGMENT DATED 03-04-2013 CONSIDERED ELABORATELY THE JUDGMENT OF THE SPECIAL BENCH OF TH IS TRIBUNAL IN MERILYN SHIPPING & TRANSPORTS (SUPRA) A ND FOUND THAT THE DECISION RENDERED BY THE SPECIAL BEN CH OF THIS TRIBUNAL IS NOT THE CORRECT LAW. IT IS WELL SETTLED PRINCIPLES OF LAW THAT WHEN DIFFERENT HIGH COURTS EXPRESSED DIFFERENT OPINIONS ON A POINT OF LAW, THE N, NORMALLY, THE BENEFIT OF DOUBT UNDER THE TAXATION L AW WOULD GO TO THE ASSESSEE. IT IS ALSO EQUALLY SETTLE D PRINCIPLES OF LAW THAT THE JUDGMENT WHICH DISCUSSES THE POINT IN ISSUE ELABORATELY AND GIVES AN ELABORATE REASONING HAS TO BE PREFERRED WHEN COMPARED TO THE JUDGMENT WHICH HAS NO REASONING AND DISCUSSION. ADMITTEDLY, THE CALCUTTA HIGH COURT AND GUJARAT HIG H COURT HAVE DISCUSSED THE ISSUE ELABORATELY AND THE SPECIFIC REASONING HAS ALSO BEEN RECORDED AS TO WHY THE SPECIAL BENCH IS NOT CORRECT. THEREFORE, THIS ITA NOS.1897 & 1898/15 :- 8 -: TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE JUDG MENTS OF THE CALCUTTA HIGH COURT CRESCENT EXPORTS SYNDICA TE & ANOTHER (SUPRA) AND GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA) HAVE TO BE PREFERRED WHEN COMPARED TO THE ALLAHABAD HIGH COURT IN M/S VECTOR SHIPPING SERVICES (P) LTD (SUPRA). 13. FOR THE PURPOSE OF CONVENIENCE WE REPRODUCING BELOW THE OBSERVATIONS MADE BY THE CALCUTTA HIGH COURT IN CRESCENT EXPORTS SYNDICATE & ANOTHER (SUPR A) AND GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA): CALCUTTA HIGH COURT IN CRESCENT EXPORTS SYNDICATE & ANOTHER (SUPRA) BEFORE DEALING WITH THE SUBMISSIONS OF THE LEARNED COUNSEL APPEARING FOR THE ASSESSEES IN BOTH THE APPEALS WE HAVE TO EXAMINE THE CORRECTNESS OF THE MAJORITY VIEWS IN THE CASE OF MERILYN SHIPPING. WE ALREADY HAVE QUOTED EXTENSIVELY BOTH THE MAJORITY AND THE MINORITY VIEWS EXPRESSED IN THE AFORESAID CASE. THE MAIN THRUST OF THE MAJORITY VIEW IS BASED ON THE FACT THAT THE LEGISLATURE HAS REPLACED THE EXPRESSION AMOUNTS CREDITED OR PAID WITH THE EXPRESSION PAYABLE IN THE FINAL ENACTMENT. COMPARISON BETWEEN THE PRE-AMENDMENT AND POST AMENDMENT LAW IS PERMISSIBLE FOR THE PURPOSE OF ASCERTAINING THE MISCHIEF SOUGHT TO BE REMEDIED OR THE OBJECT SOUGHT TO BE ACHIEVED BY AN AMENDMENT. THIS IS PRECISELY WHAT WAS DONE BY THE APEX COURT IN THE CASE OF CIT VS. KELVINATOR REPORTED IN 2010(2) SCC 723. BUT THE SAME COMPARISON BETWEEN THE DRAFT AND THE ENACTED LAW IS NOT PERMISSIBLE. NOR CAN THE DRAFT O R THE BILL BE USED FOR THE PURPOSE OF REGULATING THE MEANING AND PURPORT OF THE ENACTED LAW. IT IS THE FINALLY ENACTED LAW WHICH IS THE WILL OF THE LEGISLATURE. THE LEARNED TRIBUNAL FELL INTO AN ERROR IN NOT REALIZING THIS ASPECT OF THE MATTER. THE LEARNED TRIBUNAL HELD THAT WHERE LANGUAGE IS CLEAR THE INTENTION OF THE LEGISLATURE IS TO BE GATHERED FROM THE LANGUAGE USED. HAVING HELD SO, IT WAS NOT OPEN TO SEEK TO INTERPRET THE SECTION ON THE BASIS OF ANY COMPARISON BETWEEN ITA NOS.1897 & 1898/15 :- 9 -: THE DRAFT AND THE SECTION ACTUALLY ENACTED NOR WAS IT OPEN TO SPECULATE AS TO THE EFFECT OF THE SO- CALLED REPRESENTATIONS MADE BY THE PROFESSIONAL BODIES. THE LEARNED TRIBUNAL HELD THAT SECTION 40(A)(IA) OF THE ACT CREATES A LEGAL FICTION BY VIR TUE OF WHICH EVEN THE GENUINE AND ADMISSIBLE EXPENSES CLAIMED BY AN ASSESSEE UNDER THE HEAD INCOME FROM BUSINESS AND PROFESSION: IF THE ASSESSEE DOES NOT DEDUCT TDS ON SUCH EXPENSES ARE DISALLOWED. HAVING HELD SO WAS IT OPEN TO THE TRIBUNAL TO SEEK TO JUSTIFY THAT THIS FICTION CANNOT BE EXTENDED ANY FURTHER AND, THEREFORE, CANNOT BE INVOKED BY ASSESSING OFFICER TO DISALLOW THE GENUINE AND REASONABLE EXPENDITURE ON THE AMOUNTS OF EXPENDITURE ALREADY PAID? DOES THIS NOT AMOUNT TO DELIBERATELY READING SOMETHING IN THE LAW WHICH IS NOT THERE? WE, AS SUCH, HAVE NO DOUBT IN OUR MIND THAT THE LEARNED TRIBUNAL REALIZED THE MEANING AND PURPORT OF SECTION 40(A)(IA) CORRECTLY WHEN IT HELD THAT IN CASE OF OMISSION TO DEDUCT TAX EVEN THE GENUINE AND ADMISSIBLE EXPENSES ARE TO BE DISALLOWED. BUT THEY SOUGHT TO REMOVE THE RIGOUR OF THE LAW BY HOLDING THAT THE DISALLOWANCE SHALL BE RESTRICTED T O THE MONEY WHICH IS YET TO BE PAID. WHAT THE TRIBUNAL BY MAJORITY DID WAS TO SUPPLY THE CASUS OMISSUS WHICH WAS NOT PERMISSIBLE AND COULD ONLY HAVE BEEN DONE BY THE SUPREME COURT IN AN APPROPRIATE CASE. REFERENCE IN THIS REGARD MAY BE MADE TO THE JUDGMENT IN THE CASE OF BHUWALKA STEEL INDUSTRIES VS. BOMBAY IRON & STEEL LABOUR BOARD REPORTED IN 2010(2) SCC 273. UNPROTECTED WORKER WAS FINALLY DEFINED IN SECTION 2(11) OF THE MATHADI ACT AS FOLLOWS:- UNPROTECTED WORKER MEANS A MANUAL WORKER WHO IS ENGAGED OR TO BE ENGAGED IN ANY SCHEDULED EMPLOYMENT. THE CONTENTION RAISED WITH REFERENCE TO WHAT WAS THERE IN THE BILL WAS REJECTED BY THE SUPREME COURT BY HOLDING AS FOLLOWS: IT MUST, AT THIS JUNCTURE, BE NOTED THAT IN SPITE OF SECTION 2(11), WHICH INCLUDED THE WORDS BUT FOR THE PROVISIONS OF THIS ACT IS NOT ADEQUATE LY PROTECTED BY LEGISLATION FOR WELFARE AND BENEFITS O F THE LABOUR FORCE IN THE STATE, THESE PRECISE WORDS WERE REMOVED BY THE LEGISLATURE AND THE DEFINITION WAS MADE LIMITED AS IT HAS BEEN FINALLY LEGISLATED ITA NOS.1897 & 1898/15 :- 10 -: UPON. IT IS TO BE NOTED THAT WHEN THE BILL CAME TO BE PASSED AND RECEIVED THE ASSENT OF THE VICE- PRESIDENT ON 05-06-1969 AND WAS FIRST PUBLISHED IN THE MAHARASHTRA GOVERNMENT GAZETTE EXTRAORDINARY, PART IV ON 13-06-1969, THE AFOREMENTIONED WORDS WERE OMITTED. THEREFORE, T HIS WOULD BE A CLEAR POINTER TO THE LEGISLATIVE INT ENT THAT THE LEGISLATURE BEING CONSCIOUS OF THE FACT AN D BEING ARMED WITH ALL THE COMMITTEE REPORTS AND ALSO BEING ARMED WITH THE FACTUAL DATA, DELIBERATEL Y AVOIDED THOSE WORDS. WHAT THE APPELLANTS ARE ASKING WAS TO READ IN THAT DEFINITION, THESE PRECIS E WORDS, WHICH WERE CONSCIOUSLY AND DELIBERATELY OMITTED FROM THE DEFINITION. THAT WOULD AMOUNT TO SUPPLYING THE CASUS OMISSUS AND WE DO NOT THINK THAT IT IS POSSIBLE, PARTICULARLY, IN THIS CASE. TH E LAW OF SUPPLYING THE CASUS OMISSUS BY THE COURTS IS EXTREMELY CLEAR AND SETTLED THAT THOUGH THIS COURT MAY SUPPLY THE CASUS OMISSUS, IT WOULD BE IN THE RAREST OF THE RATE CASE AND THUS SUPPLYING OF THIS CASUS OMISSUS WOULD BE EXTREMELY NECESSARY DUE TO THE INADVERTENT OMISSION ON THE PART OF THE LEGISLATURE. BUT, THAT IS CERTAINLY NOT THE CASE HE RE. WE SHALL NOW ENDEAVOUR TO SHOW THAT NO OTHER INTERPRETATION IS POSSIBLE. THE KEY WORDS USED IN SECTION 40(A)(IA), ACCORDING TO US, ARE ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B. IF THE QUESTION IS WHICH EXPENSES ARE SOUGHT TO BE DISALLOWED? THE ANSWER IS BOUND TO BE THOSE EXPENSES ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B. ONCE THIS IS REALIZED NOTHING TURNS ON THE BASIS OF THE FACT THAT THE LEGISLATURE USED THE WOR D PAYABLE AND NOT PAID OR CREDITED. UNLESS ANY AMOUNT IS PAYABLE, IT CAN NEITHER BE PAID NOR CREDITED. IF N AMOUNT HAS NEITHER BEEN PAID NOR CREDITED, THERE CAN BE NO OCCASION FOR CLAIMING ANY DEDUCTION. THE LANGUAGE USED IN THE DRAFT WAS UNCLEAR AND SUSCEPTIBLE TO GIVING MORE THAN ONE MEANING. BY LOOKING AT THE DRAFT IT COULD BE SAID THAT THE LEGISLATURE WANTED TO TREAT THE PAYMENTS MADE OR CREDITED IN FAVOUR OF A CONTRACTOR OF SUBCONTRACTOR DIFFERENTLY THAN THE PAYMENTS ON ACCOUNT OF INTEREST, COMMISSION OR BROKERAGE, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES BECAUSE THE WORDS MOUNTS CREDITED OR PAID WERE USED ONLY IN RELATION TO A CONTRACTOR OF ITA NOS.1897 & 1898/15 :- 11 -: SUB-CONTRACTOR. THIS DIFFERENTIAL TREATMENT WAS NOT INTENDED. THEREFORE, THE LEGISLATURE PROVIDED THAT THE AMOUNTS, ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER XVII-B PAYABLE ON ACCOUNT OF INTEREST, COMMISSION OR BROKERAGE, RENT, ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICE S OR TO A CONTRACTOR OF SUB-CONTRACTOR SHALL NOT BE DEDUCTED IN COM PUTTING THE INCOME OF AN ASSESSEE IN CASE HE HAS NOT DEDUCTED, OR AFTER DEDUCTION HAS NOT PAID WITHIN THE SPECIFIED TIME. THE LANGUAGE USED BY THE LEGISLATURE IN THE FINALLY ENACTED LAW IS CLEAR AND UNAMBIGUOUS WHEREAS THE LANGUAGE USED IN THE BILL WAS AMBIGUOUS. A FEW WORDS ARE NOW NECESSARY TO DEAL WITH THE SUBMISSION OF MR. BAGCHI AND MS. ROYCHOWDHURI. THERE CAN BE NO DENIAL THAT THE PROVISION IN QUESTION IS HARSH. BUT THAT IS NO GROUND TO READ THE SAME IN A MANNER WHICH WAS NOT INTENDED BY THE LEGISLATURE. THIS IS OUR ANSWER TO THE SUBMISSION OF MR. BAGCHI. THE SUBMISSION OF MR. ROYCHOWDHURI THAT THE SECOND PROVISO SOUGHT TO BECOME EFFECTIVE FROM 1ST APRIL, 2013 SHOULD BE HELD TO HAVE ALREADY BECOME OPERATIVE PRIOR TO THE APPOINTED DATE CANNOT ALSO BE ACCEDED TO FOR THE SAME REASON INDICATED ABOVE. THE LAW WAS DELIBERATELY MADE HARSH TO SECURE COMPLIANCE OF THE PROVISIONS REQUIRING DEDUCTIONS OF TAX AT SOURCE. IT IS NOT THE CASE OF AN INADVERTENT ERROR. FOR THE REASONS DISCUSSED ABOVE, WE ARE OF THE OPINION THAT THE MAJORITY VIEWS EXPRESSED IN THE CASE OF MERILYN SHIPPING & TRANSPORTS ARE NOT ACCEPTABLE. THE SUBMISSIONS ADVANCED BY LEARNED ADVOCATES HAVE ALREADY BEEN DEALT WITH AND REJECTED. GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR(SUPRA ) 23. DESPITE THIS NARROW INTERPRETATION OF SECTION 40(A)(IA), THE QUESTION STILL SURVIVES IF THE TRIBU NAL IN CASE OF M/S MERILYN SHIPPING & TRANSPORS VS. ACIT (SUPRA) WAS ACCURATE IN ITS OPINION. IN THIS CONTEXT, WE WOULD LIKE TO EXAMINE TWO ASPECTS. FIRSTLY, WHAT WOULD BE THE CORRECT INTERPRETATION O F THE SAID PROVISION. SECONDLY, WHETHER OUR SUCH UNDERSTANDING OF THE LANGUAGE USED BY THE LEGISLATURE SHOULD WAVER ON THE PREMISE THAT AS PROPOUNDED BY THE TRIBUNAL, THIS WAS A CASE OF CONSCIOUS OMISSION ON THE PART OF THE PARLIAMENT. ITA NOS.1897 & 1898/15 :- 12 -: BOTH THESE ASPECTS WE WOULD ADDRESS ONE AFTER ANOTHER. IF ONE LOOKS CLOSELY TO THE PROVISION, IN QUESTION, ADVERSE CONSEQUENCES OF NOT BEING ABLE TO CLAIM DEDUCTION ON CERTAIN PAYMENTS IRRESPECTIVE OF THE PROVISIONS CONTAINED IN SECTION S 30 TO 38 OF THE ACT WOULD FLOW IF THE FOLLOWING REQUIREMENTS ARE SATISFIED:- (A) THERE IS INTEREST, COMMISSION OR BROKERAGE, RENT, ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FE ES FOR TECHNICAL SERVICES PAYABLE TO RESIDENT OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR BEING RESIDENT FOR CARRYING OUT ANY WORK. (B) THESE AMOUNTS ARE SUCH ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER XVIII-B. (C) SUCH TAX HAS NOT BEEN DEDUCTED OR AFTER DEDUCTION HAS NOT BEEN PAID ON OR BEFORE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 39. FOR THE PURPOSE OF CURRENT DISCUSSION REFERENCE TO THE PROVISO IS NOT NECESSARY. 24. WHAT THIS SUB-SECTION, THEREFORE, REQUIRES IS THAT THERE SHOULD BE AN AMOUNT PAYABLE IN THE NATURE DESCRIBED ABOVE, WHICH IS SUCH ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B BUT SUCH TAX HAS NOT BEEN DEDUCTED OR IF DEDUCTED NOT PAID BEFORE THE DUE DATE. THIS PROVISION NOWHERE REQUIRES THAT THE AMOUNT WHICH IS PAYABLE MUST REMAIN SO PAYABLE THROUGHOUT DURING THE YEAR. TO REITERATE THE PROVISION HAS CERTAIN STRICT AND STRINGENT REQUIREMENTS BEFORE THE UNPLEASANT CONSEQUENCES ENVISAGED THEREIN CAN BE APPLIED. WE ARE PREPARED TO AND WE ARE DUTY BOUND TO INTERPRET SUCH REQUIREMENTS STRICTLY. SUCH REQUIREMENTS, HOWEVER, CANNOT BE ENLARGED BY ANY ADDITION OR SUBTRACTION OF WORDS NOT USED BY THE LEGISLATURE. THE TERM USED IS INTEREST, COMMISSION, BROKERAGE ETC. IS PAYABLE TO A RESIDENT OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR FOR CARRYING OUT ANY WORK. THE LANGUAGE USED IS NOT THAT SUCH AMOUNT MUST CONTINUE TO REMAIN PAYABLE TILL THE END OF THE ACCOUNTING YEAR. ANY SUCH INTERPRETATION WOULD REQUIRE READING WORDS WHICH THE LEGISLATURE HAS NOT USED. NO SUCH INTERPRETATION WOULD EVEN OTHERWISE BE JUSTIFIED BECAUSE IN OUR OPINION, THE LEGISLATURE COULD NOT HAVE INTENDED TO BRING ABOUT ANY SUCH DISTINCTION NOR THE LANGUAGE USED IN THE SECTION BRINGS ABOUT ANY SUCH MEANING. IF THE INTERPRETATION S ADVANCED ITA NOS.1897 & 1898/15 :- 13 -: BY THE ASSESSEES IS ACCEPTED, IT WOULD LEAD TO A SITUATION WHERE THE ASSESSEE THOUGH WAS REQUIRED TO DEDUCT THE TAX AT SOURCE BUT NO SUCH DEDUCTION WAS MADE OR MORE FLAGRANTLY DEDUCTION THOUGH MADE IS NOT PAID TO THE GOVERNMENT, WOULD ESCAPE THE CONSEQUENCE ONLY BECAUSE THE AMOUNT WAS ALREADY PAID OVER BEFORE THE END OF THE YEAR IN CONTRAST TO ANOTHER ASSESSEE WHO WOULD OTHERWISE BE IN SIMILAR SITUATION BUT IN WHOSE CASE THE AMOUNT REMAINED PAYABLE TILL THE END OF THE YEAR. WE SIMPLY DO NOT SEE ANY LOGIC WHY THE LEGISLATURE WOULD HAVE DESIRED TO BRING ABOUT SUCH IRRECONCILABLE AND DIVERSE CONSEQUENCES. WE HASTEN TO ADD THAT THIS IS NOT THE PRIME BASIS ON WHICH WE HAVE ADOPTED THE INTERPRETATION WHICH WE HAVE GIVEN. IF THE LANGUAGE USED BY THE PARLIAMENT CONVEYED SUCH A MEANING, WE WOULD NOT HAVE HESITATED IN ADOPTING SUCH AN INTERPRETATION. WE ONLY HIGHLIGHT THT WE WOULD NOT READILY ACCEPT THAT THE LEGISLATURE DESIRED TO BRIN G ABOUT AN INCONGRUOUS AND SEEMINGLY IRRECONCILABLE CONSEQUENCES. THE DECISION OF HE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX, GUJARAT VS. ASHOKBHAI CHIMANBHAI (SUPRA), WOULD NO6T ALTER THIS SITUATION. THE SAID DECISION, OF COURSE, RECOGNIZES THE CONCEPT OF ASCERTAINING THE PROFIT AND LOSS FROM THE BUSINESS OR PROFESSION WIT H REFERENCE TO A CERTAIN PERIOD I.E. THE ACCOUNTING YEAR. IN THIS CONTEXT, LAST DATE OF SUCH ACCOUNTING PERIOD WOULD ASSUME CONSIDERABLE SIGNIFICANCE. HOWEVER, THIS DECISION NOWHERE INDICATES THAT THE EVENTS WHICH TAKE PLACE DURING THE ACCOUNTING PERIOD SHOULD BE IGNORED AND THE ASCERTAINMENT OF FULFILLING A CERTAIN CONDITION PROVIDED UNDER THE STATUTE MUST BE JUDGED WITH REFERENCE TO LAST DATE OF THE ACCOUNTING PERIOD. PARTICULARLY, IN THE CONTEXT OF REQUIREMENTS F SECTION 40(A)(IA) OF THE ACT, WE SEE NO WARRANT IN THE SAID DECISION OF THE SUPREME COURT TO APPLY THE TEST OF PAYABILITY ONLY AS ON 31ST MARCH OF THE YEAR UNDER CONSIDERATION. MERELY BECAUSE, ACCOUNTS ARE CLOSED ON THAT DATE AND THE COMPUTATION OF PROFIT AND LOSS IS TO BE JUDGED WITH REFERENCE TO SUCH DATE, DOES NOT MEAN THAT WHETHER AN AMOUNT IS PAYABLE OR NOT MUST BE ASCERTAINED ON THE STRENGTH OF THE POSITION EMERGING ON 31T MARCH. 25. THIS BRINGS US TO THE SECOND ASPECT OF THIS DISCUSSION, NAMELY, WHETHER THIS IS A CASE OF ITA NOS.1897 & 1898/15 :- 14 -: CONSCIOUS OMISSION AND THEREFORE, THE LEGISLATURE MUST BE SEEN TO HAVE DELIBERATELY BROUGHT ABOUT A CERTAIN SITUATION WHICH DOES NOT REQUIRE ANY FURTHE R INTERPRETATION. THIS IS THE FUNDAMENTAL ARGUMENT OF THE TRIBUNAL IN THE CASE OF M/S MERILYN SHIPPING & TRANSPORTS VS. ACIT (SUPRA) TO ADOPT A PARTICULAR VIEW. 26. WHILE INTERPRETING A STATUTORY PROVISION THE COURTS HAVE OFTEN APPLIED HYDENS RULE OR THE MISCHIEF RULE AND ASCERTAINED WHAT WAS THE POSITION BEFORE THE AMENDMENT, WHAT THE AMENDMENT SOUGHT TO REMEDY AND WHAT WAS THE EFFECT OF THE CHANGES. 27 TO 36.. 37. IN OUR OPINION, THE TRIBUNAL COMMITTED AN ERROR IN APPLYING THE PRINCIPLE OF CONSCIOUS OMISSION IN THE PRESENT CASE. FIRSTLY, AS ALREADY OBSERVED, WE HAVE SERIOUS DOUBT WHETHER SUCH PRINCIPLE CAN BE APPLIED BY COMPARING THE DRAFT PRESENTED IN PARLIAMENT AND ULTIMATE LEGISLATION WHICH MAY BE PASSED. SECONDLY, THE STATUTORY PROVISIONS IS AMPLY CLEAR. 38. IN THE RESULT, W ARE OF THE OPINION THAT SECTIO N 40(A)(IA) WOULD COVER NOT ONLY TO THE AMOUNTS WHICH ARE PAYABLE AS ON 20 ITA NO. 63&64M 83- 85&7-72/COCH/2014 31ST MARCH OF A PARTICULAR YEAR BUT ALSO WHICH ARE PAYABLE AT ANY TIME DURING THE YEAR. OF COURSE, AS LONG AS THE OTHER REQUIREMENT OF THE SAID PROVISION EXIST. IN THAT CONTEXT, IN OUR OPINION THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S MERILYN SHIPPING & TRANSPORTS VS ACIT (SUPRA), DOES NOT LAY DOWN CORRECT LAW. 14. BY FOLLOWING THE JUDGMENTS OF THE CALCUTTA HIG H COURT IN CRESCENT EXPORT SYNDICATE (SUPRA) AND THE GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA) , THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN T HE CASE OF M/S MERILYN SHIPPING & TRANSPORTS (SUPRA) A ND THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN VECTOR SHIPPING SERVICES (P) LTD (SUPRA) ARE NOT APPLICABL E TO THE FACTS OF THE CASE UNDER CONSIDERATION WHEREAS T HE JUDGMENTS OF THE CALCUTTA HIGH COURT IN CRESCENT EXPORT SYNDICATE (SUPRA) AND THE GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA) ARE SQUARELY APPLICAB LE TO THE FACTS OF THE CASE. RESPECTFULLY FOLLOWING TH E JUDGMENTS OF THE CALCUTTA HIGH COURT IN CRESCENT ITA NOS.1897 & 1898/15 :- 15 -: EXPORT SYNDICATE (SUPRA) AND THE GUJARAT HIGH COURT IN SIKANDARKHAN N TUNVAR (SUPRA), WE DO NOT SEE ANY INFIRMITY IN THE ORDERS OF THE LOWER AUTHORITIES. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E CONFIRMED. 12. ONE OF US, THE JUDICIAL MEMBER IS A PARTY TO THE ABOVE ORDER OF THE COCHIN BENCH OF THIS TRIBUNAL. IN FACT, THE ASSESSEE BEFORE THE COCHIN BENCH FILED A MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNA L. THE COCHIN BENCH REJECTED THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE. THE ASSESSEE CHALLENGED THE CORRECTNESS OF THE ORDER PASSED BY THE COCHIN BENCH ON THE MISCELLANEOUS PETITION BY WAY OF WRIT PETITION BEFORE THE KERALA HIGH COURT. THE KERALA HIGH COURT, HOWEVER, DISMISSED THE WRIT PETITION FILED BY THE ASSESSEE. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE JUDGMENTS OF CALCUTTA HIGH COURT AND GUJARAT HIGH COURT HAVE TO BE PREFERRED RATHER THAN THE JUDGMENT OF ALLAHABAD HIGH COURT. IN OTHER WORDS, THE JUDGMENT OF ALLAHABAD HIGH COURT DOES NOT CONTAIN ANY REASONING, THEREFORE, IT HAS T O BE TREATED AS PER INCURIAM . BY RESPECTFULLY FOLLOWING THE JUDGMENTS OF CALCUTTA HIGH COURT IN CRESCENT EXPORT SYNDICATES (SUPRA) AND GUJARAT HIGH COURT IN SIKANDARKHAN N. TUNVAR (SUPRA) FOR TH E REASONS STATED THEREIN, WE UPHOLD THE ORDER OF THE CIT(APPEALS). THE ASSESSEE BEFORE THE COCHIN BENCH OF THE TRIBUNA L IN THOMAS GEORGE MUTHOOT (SUPRA) FILED APPEAL BEFORE THE HIGH COURT OF KERALA. THE HIGH COURT OF KERALA IN THOMAS GEORGE MUTHOOT V. CIT IN ITA NO.278 OF 2014 DATED 3.7.2015, WHILE CON FIRMING THE ORDER OF THE COCHIN BENCH, OBSERVED AS FOLLOWS:- 17. ANOTHER CONTENTION THAT WAS PRESSED INTO SERVICE WAS THAT THE APPELLANTS HAD ALREADY PAID TH E AMOUNT AND THEREFORE, THE PROVISIONS OF SECTION 40(A)(IA), APPLICABLE ONLY IN RESPECT OF THE AMOUNT ITA NOS.1897 & 1898/15 :- 16 -: WHICH REMAINS TO BE PAYABLE ON THE LAST DAY OF THE FINANCIAL YEAR, IS NOT ATTRACTED. THEREFORE, ACCORDING TO THE APPELLANTS, DISALLOWANCE CANNOT BE SUSTAINED. THIS CONTENTION WAS SOUGHT TO BE SUBSTANTIATED BY RELYING ON THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN COMMISSIONER OF INCOME TAX V. VECTOR SHIPPING SERVICES (P) [2013] 357 ITR 642 (ALL)]. PRIMARILY, THIS CONTENTION SHOULD BE ANSWER ED WITH REFERENCE TO THE LANGUAGE USED IN THE STATUTOR Y PROVISION. SECTION 40(A)(IA) MAKES IT CLEAR THAT TH E CONSEQUENCE OF DISALLOWANCE IS ATTRACTED WHEN AN INDIVIDUAL, WHO IS LIABLE TO DEDUCT TAX ON ANY INTER EST PAYABLE TO A RESIDENT ON WHICH TAX IS DEDUCTIBLE AT SOURCE, COMMITS DEFAULT. THE LANGUAGE OF THE SECTION DOES NOT WARRANT AN INTERPRETATION THAT IT IS ATTRACTED ONLY IF HE IN REMAINS PAYABLE ON THE LAST DAY OF THE FINANCIAL YEAR. IF THIS CONTENTION IS T O BE ACCEPTED, THIS COURT WILL HAVE TO ALTER THE LANGUAG E OF SECTION 40(A)(IA) AND SUCH AN INTERPRETATION IS NO T PERMISSIBLE. THIS VIEW THAT WE HAVE TAKEN IS SUPPORTED BY JUDGMENTS OF THE CALCUTTA HIGH COURT IN CRESCENT EXPORTS SYNDICATE AND ANOTHER [ITAT 20 OF 2013] AND THE GUJARAT HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V. SIKANDADARKHAN N. TUNVAR [ITA NOS.905 OF 2012 & CONNECTED CASES], WHICH HAVE BEEN RELIED ON BY THE TRIBUNAL. 5. IN VIEW OF THE ABOVE DECISION OF THIS BENCH OF T HE TRIBUNAL, THE ORDER OF THE CIT(APPEALS) ALLOWING THE CLAIM OF THE ASSESSEE IS NOT JUSTIFIED. ACCORDINGLY, THE ORDER OF THE CI T(APPEALS) IS SET ASIDE AND THAT OF THE ASSESSING OFFICER IS RESTORED . 9. IN VIEW OF THE ABOVE ORDER OF THIS TRIBUNAL, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A ). ACCORDINGLY, THE SAME IS CONFIRMED. ITA NOS.1897 & 1898/15 :- 17 -: 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE I.T.A.NO. 1897/MDS/2015 IS ALLOWED FOR STATISTICAL PURPOSES A ND I.T.A.NO.1898/MDS/2015 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH NOVEMBER, 2015, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 13 TH NOVEMBER, 2015 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF