ITO, New Delhi V. M/s. Aashirwad Logistics, New Delhi

ITA 2282/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6957 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 26-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHISH GOEL CAS
• Keywords: Retrospective amendment
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-I : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER ITA NO.2282/DEL/2016 ASSESSMENT YEAR : 2008-09 ITO, WARD 50(5), NEW DELHI. VS. AASHIRWAD LOGISTICS, WZ-909B, 1 ST FLOOR, NARAINA, RING ROAD, NEW DELHI. PAN: AAMFA1261B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRANJAL SRIVASTAVA, ADVOCATE, SHRI ASHISH CHADHA & SHRI ASHISH GOEL, CAS. DEPARTMENT BY : SHRI RAJESH KUMAR, SR. DR DATE OF HEARING : 29.09.2016 DATE OF PRONOUNCEMENT : 29.09.2016 ORDER THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE CIT(A) ON 15.2.2016 IN RELATION TO THE ASSES SMENT YEAR 2008-09. ITA NO.2282/DEL/2016 2 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAIN ST RESTRICTING THE ADDITION TO RS.3,52,935/- OUT OF TOTAL DISALLOWANCE OF RS.3 7,20,904/- MADE BY THE AO U/S 40(A)(IA) OF THE ACT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE PAID FREIGHT AND FORWARDING AMOUNTING TO RS.37,20,904/- TO M/S P RAKASH FREIGHT AND OTHERS. THE AO INVOKED THE PROVISIONS OF SECTION 4 0(A)(IA), AS IN HIS OPINION, THE TAX WAS REQUIRED TO BE DEDUCTED AT SOU RCE U/S 194C BEFORE MAKING PAYMENT. THE ASSESSEE CONTENDED THAT IT WAS A BOOKING AGENT FOR M/S PRAKASH FREIGHT AND OTHERS AND WORKING FOR THEM AS AN AGENT AND NOT PAYING ANY FREIGHT TO THEM. NOT CONVINCED, THE AO MADE DISALLOWANCE U/S 40(A)(IA) FOR A SUM OF RS.37.20 LAC. THE LD. C IT(A) DELETED THE DISALLOWANCE AMOUNTING TO RS.33,67,969/-, BEING THE AMOUNT OF FREIGHT PAID TO M/S PRAKASH FREIGHT, BY RELYING ON THE JUD GMENT OF THE HONBLE DELHI HIGH COURT IN CIT VS. ANSAL LANDMARK TOWNSHIP (P) LTD. (2015) 377 ITR 635 (DEL ). FOR THE REMAINING AMOUNTS PAID BY THE ASSESSEE, THE LD. CIT(A) SUSTAINED THE DISALLOWANCE. THE REVENUE IS AGGRIEVED AGAINST THE DELETION MADE BY THE FIRST APPELLATE AUTHORITY. ITA NO.2282/DEL/2016 3 4. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE ASSESSEE PAID A SUM OF RS.33,67,969.26 TO M/S PRAKASH FREIGHT WITHOUT DEDUCTION OF TAX AT SOURCE. THIS AMOUNT WAS ADMITTEDLY INCLUDED BY THAT COMPANY IN ITS INCO ME AT THE TIME OF FILING OF RETURN. THIS FACT TRANSPIRED FROM THE RE MAND REPORT SUBMITTED BY THE AO AT THE INSTANCE OF THE LD. CIT(A). THE HON BLE DELHI HIGH COURT IN CIT VS. ANSAL LANDMARK TOWNSHIP (P) LTD. (SUPRA) HAS HELD THAT SECOND PROVISO TO SECTION 40(A)(IA) IS DECLARATORY AND CUR ATIVE IN NATURE AND, HENCE, HAS RETROSPECTIVE EFFECT FROM 1 ST APRIL, 2005. THIS JUDGMENT FULLY SUPPORTS THE DELETION OF DISALLOWANCE U/S 40(A)(IA) BECAUSE M/S PRAKASH FREIGHT ADMITTEDLY INCLUDED THE AMOUNT RECEIVED FRO M THE ASSESSEE IN ITS INCOME. THE CONTENTION OF THE LD. DR THAT SLP HAS BEEN ADMITTED AGAINST THIS JUDGMENT OF THE HONBLE DELHI HIGH COURT, IN M Y CONSIDERED OPINION, DOES NOT CHANGE THE EXISTING LEGAL POSITION. SO LO NG AS THE JUDGMENT OF THE HONBLE HIGH COURT IS NOT MODIFIED BY THE HONB LE SUPREME COURT, THE SAME IS BINDING AND HAS A PRECEDENT VALUE. IN VIEW OF THE FOREGOING DISCUSSION, I AM SATISFIED THAT THE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE ADDITION TO THE TUNE OF RS.33,67,969.26. ITA NO.2282/DEL/2016 4 5. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.09.20 16. SD/- [R.S. SYAL] ACCOUNTANT MEMBER DATED, 29 TH SEPTEMBER, 2016. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.