Income Tax Officer, Ward-2(2), Vijayawada V. Fusion Voice solutions India Private Limited, Vijayawada

ITA 239/VIZ/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5153 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CH SANJEEV
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ I .T.A.NO. 239 /VIZ/201 8 ( / ASSESSMENT YEAR: 2012 - 2013 ) INCOME TAX OFFICER WARD - 2(2) VIJAYAWADA VS. M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. D.NO.36 - 14 - 2, FUSION TOWERS, RAMANAIDU STREET MOGALRAJPURAM VIJAYAWADA [PAN : AABCF2029A ] ( / APPELLANT) ( / RESPONDENT) CROSS OBJECTION NO.44/VIZ/2018 ARISING OUT OF I .T.A.NO.239 /VIZ/2018 ( / ASSESSMENT YEAR: 2012 - 2013 ) M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. D.NO.36 - 14 - 2, FUSION TOWERS, RAMANAIDU STREET MOGALRAJPURAM , VIJAYAWADA [PAN : AABCF2029A ] INCOME TAX OFFICER WARD - 2(2) VIJAYAWADA ( / APPELLANT) ( / RESPONDENT) / REVENUE BY : SHRI C H .SANJEEV, DR / ASSESSEE BY : SHRI G.V.N.HARI, AR / DATE OF HEARING : 17 . 10. 2018 / DATE OF PRONOUNCEMENT : 24 . 10 .2018 2 I.T.A. NO .239 /VIZ/201 8 AND CO NO.44/VIZ/2018 M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. VIJAYAWADA / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: TH IS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(CIT(A)], VIJAYAWADA VIDE ITA NO.10196/CIT(A)/VJA/2017 - 18 DATED 23.03.2018 FOR THE ASSESSMENT YEAR 2012 - 13 . THE ASSESSEE ALSO FILED CROSS OBJECTIONS IN SUPPORT OF THE ORDER OF THE LD.CIT(A). 2 . ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ORDER PASSED BY THE CIT(A) AGAINST THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFFICER (AO) U/S 143(3) R.W.S. 263 ON 29.12.2017 GIVING EFFECT TO THE REVISION ORDER MADE U/S 263 OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). IN THIS CASE, THE ASSESSEE FILED THE RETURN OF INCOME ADMITTING TOTAL INCOME OF RS.4,53,760/ - . THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 03.03.2015 DETERMINING THE TOTAL INCOME OF RS.7,74,178 / - . SUBSEQUENTLY, THE PR.CIT, VIJAYAWADA HAS TAKEN UP THE CASE FOR REVISION U/S 263 AND FOUND THAT THE ASSESSEE PAID A SUM OF RS.4,46,924/ - TOWARDS THE INCENTIVES TO STAFF AND A SUM OF RS.1,38,34,314/ - TO THE RETAILERS AS INCENTIVES BUT NOT D EDUCTED THE TDS AS REQUIRED U/S 194H OF THE ACT . 3 I.T.A. NO .239 /VIZ/201 8 AND CO NO.44/VIZ/2018 M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. VIJAYAWADA THEREFORE, THE LD.PR.CIT HELD THE ORDER PASSED U/S 143(3) DATED 03.03.2015 AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND SET ASIDE THE ORDER PASSED U/S 143(3) AND DIRECTED THE AO TO REDO TH E ASSESSMENT AS PER LAW. 3. AGGRIEVED BY THE ORDER OF THE LD.PR.CIT, THE ASSESSEE FILED APPEAL BEFORE THE ITAT, VISAKHAPATNAM AND THE ITAT IN ITS ORDER VIDE I.T.A. NO.335/VIZ/2017 DATED 14.03.2018 SET ASIDE THE ORDER PASSED U/S 263 AND ALLOWED THE APPEA L OF THE ASSESSEE. 4. CONSEQUENT TO REVISION ORDER PASSED U/S 263 OF THE ACT, THE AO HAS PASSED MODIFICATION ORDER U/S 143(3) R.W.S. 263 OF THE ACT AND DETERMINED THE TOTAL INCOME AT RS.1,46,08,490/ - . THE AO MADE THE ADDITION OF RS.1,38,34,314/ - RELATING TO THE INCENTIVES TO THE RETAILERS , WHERE NO TAX WAS DEDUCTED AS REQUIRED U/S 194H OF THE ACT. 5. AGGRIEVED BY THE ORDER OF THE AO PASSED U/S 143(3) R.W.S. 263 DATED 29.12.2017, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ORDER U/S 263 IS NOT IN EXISTENCE AS THE SAID ORDER WAS SET ASIDE BY THE ITAT, 4 I.T.A. NO .239 /VIZ/201 8 AND CO NO.44/VIZ/2018 M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. VIJAYAWADA VISAKHAPATNAM AND THE CONSEQUENTIAL ORDER PASSED U/S 143(3) R.W.S. 263 ALSO DOES NOT EXIST. 6. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE REVENUE HAS FILED APPEAL BEFORE THE TRIBUNAL TO KEEP THE MATTER ALIVE SINCE THE REVENUE HAS PROPOSED TO CHALLENGE THE ITATS ORDER AGAINST THE ORDER PASSED BY THE PR.CIT U/S 263 BEFORE THE HONBLE HIGH COURT OF ANDHRA PRADESH. 7. WE HAVE HEARD BOTH T HE PARTIES AND PERUSED THE MATERIALS PLACED ON RECORD. THE AO HAS PASSED THE ORDER U/S 143(3) R.W.S. 263 GIVING EFFECT TO THE REVISION ORDER PASSED BY THE LD.PR.CIT U/S 263. THE ITAT IN ITS ORDER DATED 14.03.2018 CITED SUPRA SET ASIDE THE ORDER PASSED U/S 263 AND ALLOWED THE APPEAL OF THE ASSESSEE. THEREFORE, THE IMPUGNED ORDER PASSED U/S 263 IS NOT IN EXISTENCE AND CONSEQUENTIAL ORDER HAS NO LEGS TO STAND. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AND THE SAME IS UPHELD. ACCORDING LY, THE APPEAL OF THE REVENUE IS DISMISSED. 8. THE ASSESSEE FILED CROSS OBJECTION SUPPORTING THE ORDER OF THE LD.CIT(A). SINCE THE APPEAL OF THE REVENUE IS DISMISSED, THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED. 5 I.T.A. NO .239 /VIZ/201 8 AND CO NO.44/VIZ/2018 M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. VIJAYAWADA 9. IN THE RESULT, THE APPEAL OF TH E REVENUE IS DISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 24 TH OCTOBER, 2018. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 24 .10.2018 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / ASSESSEE M/S FUSION VOICE SOLUTIONS INDIA PVT. LTD. , D.NO.36 - 14 - 2, FUSION TOWERS, RAMANAIDU STREET , MOGALRAJPURAM , VIJAYAWADA 2 . / REVENUE INCOME TAX OFFICER, WARD - 2(2), VIJAYAWADA 3. THE PR.COMMISSIONER OF INCOME TAX, VIJAYAWADA 4. THE COMMISSIONER OF INCOME TAX (APPEALS),VIJAYAWADA 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM