The ACIT,TDS Circle, Ahmedabad V. Hazira Port Pvt.Ltd., Ahmedabad

ITA 1946/AHD/2011

• Counselvise Citation: 194620514 RSA 2011
• Duration Of Justice: 3 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: HIREN J TRIVEDI AR
• Keywords: Additional evidence
• Section: 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ././ ./ ITA NO. 1946/AHD/2011 & CO NO.196/AHD/2011 / ASSESSMENT YEAR: 2009-10 ACIT, TDS-CIRCLE, AHMEDABAD V/S. HAZIRA PORT PVT LTD ABHIJEET-II, MITHAKHALI, AHMEDABAD TAN : AHMH 00869 B / // / (APPELLANT) !' !' !' !' / // / (RESPONDENT/ CROSS-OBJECTOR) REVENUE BY : SMT. SONIA KUMAR, SR. DR. ASSESSEE(S) BY : SHRI HIREN J. TRIVEDI, AR #$ % &'/ // / DATE OF HEARING : 22/06/2015 () % &' / // / DATE OF PRONOUNCEMENT: 22/06/2015 *+ *+ *+ *+/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND THE CROS S-OBJECTION FILED BY THE ASSESSEE, BOTH AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXI, AHMEDABAD DATED 16.05.2011, PERT AINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL READ AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACTS OF THE CASE IN DELETING THE ORDER PASSED U/S.201(1) OF RS.3,96,21,590/- & INTER EST CHARGED U/S. 201(1A) OF THE 1 T ACT OF RS. 95,09,180/- RESPECTIVELY FOR A.Y. 2009-10 TREATING THE USE OF WATER FRONT ROYALTY U/S 194J OF THE ACT AGAI NST 194I OF THE ACT BY THE A. O. 2. THE CIT(A) HAS VIOLATED THE RULE 46A OF THE I.T. RULE BY ACCEPTING ADDITIONAL EVIDENCE IN THE FORM OF NOTIFICATION DAT ED 01.04.2008 WHICH WAS NOT PRODUCED BEFORE THE A.O. AT THE TIME OF ASSESSM ENT PROCEEDING BY THE ASSESSEE. ITA NO.1946/AHD/2011 & CO NO.196/AHD/2011 ACIT VS. HAZIRA PORT PVT LTD FOR AY 2009-10 2 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 6. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED T O THE ABOVE EFFECT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT THE SIMILAR ISSUE WAS CONSI DERED BY THE ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008-09 VID E ITA NOS. 105 & 106/AHD/2011. IN THE SAID YEAR, THE ITAT SET ASIDE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE FOLLOWING FI NDINGS:- 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE REFERRED TO HIS APPLICATION FILED FOR ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 29. HE STATED THAT THE PAYMENTS MADE BY THE A SSESSEE VIZ., LANDING FEES, SHIPPING FEES, LIGHTERAGE LEVY, LICENSE FEES, WATER FRONT FEES, WATERFRONT ROYALTY ARE STATE CHARGES AND PAYABLE TO GOVERNMENT OF GUJA RAT. THEREFORE, ON THESE PAYMENTS NO TAX WAS REQUIRED TO BE DEDUCTED BEING P AYMENT TO GOVERNMENT. THEREFORE, THE CONTROVERSY RAISED IN THE REVENUES APPEAL WHETHER THE TAX WAS REQUIRED TO BE DEDUCTED U/S 194J OR 194I IS IRR ELEVANT. HE SUBMITTED THAT THE ADDITIONAL EVIDENCES ARE TO ESTABLISH THE POINT THAT THERE WAS NO LIABILITY OF THE ASSESSEE TO DEDUCT THE TAX AT SOURCE. HE, TH EREFORE, REQUESTED FOR THE ADMISSION OF ADDITIONAL EVIDENCES. 4. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCES AND STATED TH AT THIS ISSUE WAS NEVER RAISED BEFORE THE ASSESSING OFFICER. THEREFORE, IN STEAD OF ADMITTING THE ADDITIONAL EVIDENCES, IT WOULD BE APPROPRIATE IF TH E ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE HAS NO O BJECTION TO THE ABOVE MENTIONED SUGGESTION OF THE LD. DEPARTMENTAL REPRES ENTATIVE. IN VIEW OF ABOVE AND CONSIDERING THE ARGUMENTS AND SUBMISSIONS OF BOTH THE SIDES, WE DEEM IT PROPER TO SET ASIDE THE ORDERS OF THE AUTHO RITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. WE DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES AND EXPLANATION BEFORE TH E ASSESSING OFFICER; THEREAFTER, THE ASSESSING OFFICER IS DIRECTED TO EX AMINE WHETHER THE ASSESSEE IS AT ALL RESPONSIBLE FOR DEDUCTION OF TAX AT SOURC E. IF HE COMES TO THE CONCLUSION THAT THE ASSESSEE IS LIABLE FOR DEDUCTIO N OF TAX AT SOURCE, THEN HE ITA NO.1946/AHD/2011 & CO NO.196/AHD/2011 ACIT VS. HAZIRA PORT PVT LTD FOR AY 2009-10 3 WILL FURTHER ADJUDICATE WHETHER THE TAX WAS REQUIRE D TO BE DEDUCTED U/S 194I OR 194J, AND THEREAFTER, HE WILL ARRIVE AT THE CONC LUSION WHETHER THE ASSESSEE CAN BE SAID TO BE IN DEFAULT U/S 201(1) OR 201(1A). 4. AT THE TIME OF HEARING BEFORE US, BOTH THE PARTI ES FAIRLY AGREED THAT IN THE YEAR UNDER CONSIDERATION ALSO THE FACTS ARE IDE NTICAL AND THEREFORE, THE ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESS ING OFFICER FOR RE- ADJUDICATION AS PER THE DIRECTIONS OF ITAT FOR ASSE SSMENT YEAR 2008-09. IN VIEW OF ABOVE, WE, RESPECTFULLY FOLLOWING THE ABOVE DECISION OF ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008-09, SE T ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MAT TER BACK TO THE FILE OF THE ASSESSING OFFICER TO BE RE-ADJUDICATED THE MATTER A FRESH AS PER THE OBSERVATIONS/DIRECTIONS OF THE ITAT IN ASSESSEES O WN CASE FOR ASSESSMENT YEAR 2008-09. 5. WITH REGARD TO CROSS-OBJECTION, IT IS SUBMITTED BY THE LD. COUNSEL THAT WHEN THE MATTER IS BEING SET ASIDE, NO FURTHER RELI EF IS BEING CLAIMED IN THE CROSS-OBJECTION AND THEREFORE, THE SAME MAY BE TREA TED AS NOT PRESSED. ACCORDINGLY, THE ASSESSEES CROSS-OBJECTION IS DISM ISSED BEING NOT PRESSED AND THE ISSUE RAISED IN THE REVENUES APPEAL IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. 6. IN THE RESULT, THE REVENUES APPEAL IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES AND THE ASSESSEES CROSS-OBJEC TION IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 22 ND JUNE, 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 22/06/2015 BIJU T., PS ITA NO.1946/AHD/2011 & CO NO.196/AHD/2011 ACIT VS. HAZIRA PORT PVT LTD FOR AY 2009-10 4 *+ % !&, -*,& *+ % !&, -*,& *+ % !&, -*,& *+ % !&, -*,&/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. & #. / CONCERNED CIT 4. #. ( ) / THE CIT(A) 5. ,12 !& , , / DR, ITAT, AHMEDABAD 6. 2 4$ / GUARD FILE . *+# *+# *+# *+# / BY ORDER, TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD