JAHANGIR HC JAHANGIR, MUMBAI V. ACIT CIR 12(3), MUMBAI

ITA 2050/MUM/2009

• Counselvise Citation: 205019914 RSA 2009
• Duration Of Justice: 6 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 07-05-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAVAN KUMAR BIRLA
• Assessee Lawyers: FARROKH IRANI
• Section: 194C

Judgement Text

, J IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI , . . , , . . , BEFORE SHRI I.P. BANSAL , J M AND SHRI B.R. BASKARAN , A M . / ITA NO. 2050 / MUM/ 20 09 ( / ASSESSMENT YEAR : 200 5 - 0 6 ) M/S. JAHANGIR HC JAHANGIR, READYMONEY MANSION 43 VEER NARIMAN ROAD, MUMBAI 400 0 01 .. / APPELLANT V/S ITO - 12(1)(3) , AAYAKAR BHAVAN MUMBAI - 400004 .. .. / RESPONDENT . / PERMANENT ACCOUNT NUMBER AFOPJ6023P APPELLANT BY : SHRI FARROKH IRANI REVENUE BY : SHRI PAVAN KUMAR BIRLA (DR) / DATE OF HEARING 1 8 .0 6 .201 5 / DATE OF ORD ER 18 .0 6 .2015 / ORDER . . , / PER B.R. BASKARAN , A .M. TH IS APPEAL OF THE ASSESSEE WAS DISPOSED OFF BY THE TRIBUNAL ON 16.05.2012. BEFORE THE TRIBUNAL , THE ASSESSEE HAD RAISED AN AD DITIONAL GROUND WITH REGARD TO DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S.40(A)(IA) OF THE ACT FOR NONE DEDUCTION OF TAX OF SOURCE U/S.194J OF THE ACT. SINCE THE ASSESSEE DID NOT AGITATE THIS GROUND BEFORE LD.CIT(A), THE TRIBUNAL DECLINED TO ADJUDICATE THE SAME ON THE J AHANGIR HC JAHANGIR 2 REASONING THA T THE SAID GROUND DOES NOT ARIS E OUT OF ORDER OF FIRST APPELLATE AUTHORITY. AGGRIEVED BY THE DECISION TAKEN BY THE TRIBUNAL, THE ASSESSEE PREFERRED APPEAL BEFORE THE HONBLE HIGH COURT OF BOMBAY . THE HONBLE HIGH COURT, VIDE ITS ORDER DATED 07.11.2014 PAS SED IN ITA NO.1208 OF 2012, SET ASIDE THE ORDER OF TRIBUNAL ON THE ABOVE SAID ISSUE AND RESTORED THE SAME TO THE FILE OF THE TRIBUNAL WITH THE DIRECTION TO HEAR THE SAME. 2. WE HAVE HEARD THE PARTIES ON THIS ISSUE. LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HA D PAID PROJECT MANAGEMENT FEE OF RS.7,41,225/ - TO M/S. GODREJ PROPERTIES LTD IN CONNECTION WITH THE DEVELOPMENT OF A PROPERTY LOCATED AT PUNE AND CLAIMED THE SAME AS DEDUCTION. THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASS ESSEE SHOULD HAVE DEDUCTED TA X AT SOURCE U/S.194J OF THE ACT ON THE ABOVE SAID PAYMENT AND S I NCE THE ASSESSEE HAS FAILED TO DEDUCT TDS , THE AO DISALLOWED THE SAID EXPENDITURE AS PER THE PROVISIONS OF U/S.40(A)(IA) OF THE ACT. THE LD. COUNSEL SUBMITTED THA T THE PAYMENT MADE TO M/S. GODREJ PROPERTIES LTD. CANNOT BE CONSIDER ED AS FEE FOR PROFESSIONAL SERVICES FALLING WITHIN THE PURVIEW OF SEC .194J OF THE ACT . HE SUBMITTED THAT, AT THE MOST , IT MAY BE A PAYMENT FALL ING WITHIN THE PURVIEW OF S.194C OF THE ACT. HE FURTHER SUBMITTED THAT THE ASSESSEE , BEING AN INDIVIDUAL , IS NOT RE QUIRED TO DE D UCT TAX AT SOURCE U/S. 194C OF THE A CT IN THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY, HE SUBMITTED THAT THE ASSESSING OFFICER W A S NOT JUSTIFIED IN DISALLOWING THE A BOVE SAID PAYMENT U/S 40(A)(IA) OF THE ACT. 3. HOWEVER, THE LD. DR SUBMITTED THAT THE ASSESSEE HAS URGED THIS ISSUE FOR THE FIRST TIME BEFORE THE TRIBUNAL AND FACT RELATING TO THE SAME REQUIRES VERIFICATION. FURTH E R THE RE WAS NO OCCASION FOR THE J AHANGIR HC JAHANGIR 3 LD.CIT(A ) TO ADJUDICATE THIS ISSUE, SINCE THE ASSESSEE DID NOT CONTEST THE SAME BEFORE HIM AND HENCE THE VIEW OF FIRST APPELLATE AUTHORITY IS NOT ALSO AVAILABLE ON RECORD. ACCORDINGLY, THE LD. DR CONTENDED THAT THIS ISSUE REQUIRES EXAMINATION AT THE END OF THE LD. CIT(A) . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND WE FIND MERIT ON IN THE CONTENTION S PUT FORTH BY LD. DR. ADMITTEDLY THIS GROUND RELATING TO DISALLOWANCE U/S.40(A)(IA) OF THE ACT WAS NOT URGED BEFORE THE LD. CIT(A) AND HENCE THE RE WAS NO OCCASION FOR T HE FIRST APPELLATE AUTHORITY TO ADJUDICATE THE SAME. HENCE, THIS ISSUE DOES NOT ARISE OUT OF THE ORDER OF LD.CIT(A). FURTHER, THE VARIOUS CONTENTIONS PUT FORTH BY LD. AR, IN OUR VIEW, REQUIRE EXAMINATION WITH REFERENCE TO THE RELEVANT MATERIALS. ACCORDI NGLY , WE ARE OF THE VIEW THAT THIS ISSUE REQUIRE EXAMINATION AT THE END OF LD. CIT(A). ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE SAME AS EARLY AS POSSIBLE. 5 . IN THE RESULT, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N 18TH DAY OF JUNE, 2015. SD SD SD SD/ - . . I.P.BANSAL JUDICIAL MEMBER SD/ - . . B.R. BASKARAN ACCOUNTANT MEMBER MUMBAI, DATED : 18 . 06 .2015 PATEL J AHANGIR HC JAHANGIR 4 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / TH E ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER TRUE COPY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI