EDELWISS GLOBAL WELATH MANAGAMENT LTD, MUMBAI V. DCIT 3(1), MUMBAI

ITA 2063/MUM/2013

• Counselvise Citation: 206319914 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Assessee Lawyers: MANOJ JAJOO
• Keywords: Opportunity of being heard

Judgement Text

, , ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI , .. , ! ' BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NOS.2063/MUM/2013 # # # # $# $# $# $# / ASSESSMENT YEAR: 2009-10 M/S EDELWEISS GLOBAL WEALTH MANAGEMENT LTD., EDELWEISS FINANCIAL PRODUCT AND SOLUTION LIMITED, EDELWEISS HOUSE, 4 TH FLOOR, OFF C.S.T. ROAD, KALINA, MUMBAI-400098 VS. THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-3(1), AAYAKAR BHAVAN, MUMBAI-400020 ( %& / APPELLANT ) ( '(%& / RESPONDENT) P.A. NUMBER : AABCI7567C %& ) * / APPELLANT BY: SHRI MANOJ JAJOO '(%& ) * / RESPONDENT BY : SHRI NEIL PHILIP-DR ) +, / DATE OF HEARING : 09/12/2014 -.$ ) +, / DATE OF PRONOUNCEMENT : 09/12/2014 O R D E R PER JOGINDER SINGH, JM: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 08/01/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MUM BAI, ON THE GROUND IN NOT GRANTING CREDIT OF TDS AMOUNT OF RS.2 ,26,500/- ERRONEOUSLY OBSERVING THAT THE REVERSAL OF INCOME O FFERED BY THE 2 M/S EDELWEISS GLOBAL WEALTH MANAGEMENT LTD ASSESSEE IS NOT ASSESSABLE TO TAX AND FURTHER ERRED THAT THE TDS CLAIM IS NOT WITHIN THE FRAME WORK OF RULE 37BA OF THE RU LES. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI MANOJ JAJOO ADVANCED HIS ARGUMENTS WHICH ARE IDENTI CAL TO THE GROUND RAISED BY FURTHER SUBMITTING THAT PROPER OPP ORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE. ON THE OTH ER HAND, THE LD. DR, SHRI NEIL PHILIP DEFENDED THE CONCLUSION ARRIVE D AT BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE COMPANY IS CARRYING ON THE BUSINESS OF MARKETING AN D DISTRIBUTION OF FINANCIAL PRODUCTS DECLARED LOSS OF RS.2,79,54,506/ - IN ITS RETURN FILED 26 TH SEPT. 2009. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE ASSESSMENT WAS FRAMED U/S 143 DETERMINING THE L OSS AT RS.2,77,76,950/- DISALLOWING THE CLAIMED TDS AT RS. 2,26,500/-. THE CLAIM BEFORE US IS THAT THE CREDIT FOR TDS AMOUNTIN G TO RS.2,26,500/-, DEDUCTED BY BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. WAS NOT GRANTED TO THE ASSESSEE. IT WAS PLEADED THAT BAJAJ ALLIANZ GENERAL INSURANCE COMPANY HAS ALREADY PAID THE DEDUCTED AMO UNT TO THE GOVERNMENT AND ISSUED A TDS CERTIFICATE. HOWEVER, WE NOTE THAT THE CLAIMED BENEFIT OF TDS WAS DENIED TO THE ASSESSEE O N THE GROUND THAT THE CREDIT OF TDS IS TO BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH THE INCOME IS ASSESSABLE. IN APPEAL PROCEEDING BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THE ASSESSEE F ILED A CIRCULAR NO.5/2001, ISSUED BY CBDT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONCLUDED THAT THE CIRCULAR IS PRIOR TO T HE AMENDMENT IN SECTION 199 WITH EFFECT FROM 01/04/2008 R.W. RULE 3 7BA, THUS IS NOT APPLICABLE FOR A.Y. 2009-10. THE CRUX OF ARGUMENTS BEFORE US IS THAT 3 M/S EDELWEISS GLOBAL WEALTH MANAGEMENT LTD THE AGREEMENT WAS TERMINATED ON 28/02/2009 WHEREAS THE TAX WAS DEDUCTED AT SOURCE ON 18/07/2008. HOWEVER, WE NOTE THAT THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER ARE MUM ON THIS ARGUMENT AND EVEN THERE IS NO WHISPER REGARDING TER MINATION OF AGREEMENT, THEREFORE, TO SAFEGUARD THE INTEREST OF BOTH SIDES AND ALSO IN THE INTEREST OF JUSTICE, WE REMAND THIS APPEAL T O THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE AND DECIDE IN ACCORDANCE WITH LAW IN THE LIGHT OF CBDT CIRCULAR N O.2/2011 DATED 27/04/2011 AND 5/2001 DATED 02/03/2001. THE ASSESS EE HAS ALSO CLAIMED THAT LATER ON DUE TO NON-FULFILLMENT OF OBL IGATIONS, AS PER AGREEMENT, THE ASSESSEE HAD TO REFUND THE ADVANCE R ECEIVED OF RS.2 CRORES AND THE CORRESPONDING INCOME WAS REVERSED IN THE BOOKS OF ACCOUNTS. THE STAND OF THE REVENUE IS THAT ASSESSE E SOUGHT THE CLAIM/CREDIT WITHOUT OFFERING CORRESPONDING INCOME FOR TAXATION. THUS, THE ASSESSING OFFICER IS EXPECTED TO EXAMINE THE CLAIM OF THE ASSESSEE FROM THESE ANGLES. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENC E, IF ANY, IN SUPPORT OF ITS CLAIM. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION O F THE HEARING ON 09/12/2014. SD/- SD/- B.R. BASKARAN JOGINDER SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED - 09/12/2014 F{X~{T? P.S/. . . 4 M/S EDELWEISS GLOBAL WEALTH MANAGEMENT LTD !/ !/ !/ !/ ) )) ) '+0 '+0 '+0 '+0 10$+ 10$+ 10$+ 10$+ / COPY OF THE ORDER FORWARDED TO : 1. %& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. 2 ( ) / THE CIT(A)- 4. 2 / CIT 5. 03 '+ , , / DR, ITAT, MUMBAI 6. 34# 5 / GUARD FILE. !/ !/ !/ !/ / BY ORDER, (0+ '+ //TRUE COPY// 6 66 6 / 7 7 7 7 8 8 8 8 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI