ACIT, Patna V. M/s Vibharaj Construction Pvt. ltd., Nawada

ITA 237/PAT/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9635 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2017
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2013
• Court: TRIBUNAL
• Department Lawyers: T VARKEY JUDIC IA L M EMBER
• Assessee Lawyers: S K PAUL DR SHRI MANIS
• Section: 194C

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH:P ATNA BEFORE SHRI ABY T. VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 237/PAT/2013 ASSESSMENT YEAR:2010-11 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, PATNA. / V/S . M/S. VIBHARAJ CONSTRUCTION PVT. LTD., PATHRA ENGLISH, P.O ORHANPUR, NAWADA-805110 PAN: AACCV2812N /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S. K. PAUL, DR /BY RESPONDENT SHRI MANISH RASTOGI, ADVOCATE /DATE OF HEARING 05-04-2017 /DATE OF PRONOUNCEMENT 07-04-2017 /O R D E R PER BENCH: THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF CIT(A), DHANBAD DATED 28.08.2013 FOR AY 2010-11. 2. THE ONLY GROUND THAT HAS BEEN RAISED BY THE REVE NUE IS AGAINST THE DELETION OF ADDITION MADE U/S. 40(A)(IA) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), WHICH WAS ADDED BY AO REJECTING THE PLEA OF THE ASSESSEE THAT THE EXPENSES BOOKED UNDER THE HEAD MACHINE HIRE CHARGES WERE NOT PAID TO ITS PRINCIPAL FROM WHOM IT RECEIVED SUB-CONTRACT BUT ACTUALLY ITS PRINCIPAL AD JUSTED THE AMOUNT FROM THE PAYMENTS DUE TO THE ASSESSEE. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE STATED THAT THE ISSUE RAISED BY THE REVENUE HAS ALREADY BEEN DECIDED IN FAVOUR OF T HE ASSESSEE BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR AYS. 2008-09 AND 2009-10. THE LD. DR COULD NOT CONTROVERT THE AFORESAID SUBMISSION OF THE LD. AR AND RELIED ON THE ORDER OF THE AO. 2 ITA NO.237/PAT/2013 VIBHARAJ CONSTN. PVT. LTD., AY 2010-11 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT SIMILAR ISSUE CROPPED UP IN THE ASSESSMENT YEARS 2008-09 AND 2009- 10 IN ASSESSEES OWN CASE WHICH WAS DECIDED IN FAVO UR OF ASSESSEE BY THE LD. CIT(A). THE SAID ORDER OF THE LD. CIT(A) WAS CHALLENGED BY THE DEPARTMENT BEFORE THE TRIBUNAL IN ITA NO.121/PAT/2011 FOR AY 2008-09 AND IN ITA NO. 173/P AT/2012 FOR AY 2009-10. WE HAVE PERUSED THE ORDERS OF THE TRIBUNAL AND TAKEN NOTE T HAT SIMILAR ISSUE HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE AND THE TRIBUNAL HAS CONCURR ED WITH THE VIEW OF THE LD. CIT(A) FOR AY 2008-09, WHEREIN THE TRIBUNAL VIDE PARA 3 OF ITS ORDER HAS HELD AS UNDER: 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. IT WAS SUBMITTED THAT THE ASSESSEE HAS NOT TAKEN ANY SUCH MACHINES O N HIRE FROM ITS PRINCIPAL AS ALLEGATION MADE BY THE ASSESSING OFFICER. THE PRINCIPAL HAS P ROVIDED SOME MACHINES FOR DOING THE WORK ON THE PROJECT AND CHARGES IN RESPECT THEREOF AS DETERMINED BY THE PRINCIPAL WERE RECOVERED BY THEM FROM THE AMOUNTS PAYABLE FOR THE SUB-CONTRACT WORKS TO THE ASSESSEE. THEREFORE, THERE IS NO LIABILITY ON THE PART OF THE ASSESSEE TO DEDUCT THE TAX AT SOURCE. WE CONCUR WITH THE VIEWS OF LD. CIT(A) THAT SOME MACHI NES WERE PROVIDED BY THE PRINCIPAL TO FACILITATE THE EXECUTION OF SUB-CONTRACT WORK AND C HARGES THEREOF WERE RECOVERED FROM THE AMOUNT PAYABLE TO THE ASSESSEE. SINCE NO AMOUNT HA S BEEN PAID OR CREDITED TO THE ASSESSEE TO THE PRINCIPAL, WHICH IS A PREREQUISITE FOR ATTRA CTING PROVISIONS OFSECTION 194C OR 194I OF THE ACT. IN THE CIRCUMSTANCES AND FACTS OF THE CAS E, THE TDS PROVISIONS ARE NOT APPLICABLE AND THERE CANNOT BE ANY DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. WE, THEREFORE, FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) TO INTERFER E. HENCE, GROUND OF APPEAL TAKEN BY THE REVENUE IS REJECTED. 5. THEREAFTER, WE NOTE THAT ON 05.05.2015 FOR AY 20 09-10, THE TRIBUNAL HAS FOLLOWED THE ORDER PASSED IN AY 2008-09 AND DISMISSED THE AP PEAL OF THE REVENUE. RESPECTFULLY FOLLOWING THE ORDERS OF THE COORDINATE BENCH DATED 11.07.2014 AND 05.05.2015 FOR AYS. 2008-09 AND 2009-10, WE DISMISS THE APPEAL OF THE R EVENUE AND CONFIRM THE ORDER OF LD. CIT(A). 6. IN THE RESULT, APPEAL OF REVENUE STANDS DISMISSE D. ORDER IS PRONOUNCED IN OPEN COURT ON 07.04.2017. SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 7 TH APRIL, 2017 JD. SR. PS 3 ITA NO.237/PAT/2013 VIBHARAJ CONSTN. PVT. LTD., AY 2010-11 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ' / CONCERNED CIT 4. ' - / CIT (A) 5. # && , / DR, ITAT, PATNA 6. ( / GUARD FILE. BY ORD ER/ , ASSISTANT REGI STRAR, ITAT, PATNA,