Narender Jain, New Delhi V. ACIT, New Delhi

ITA 2447/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3479 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 22-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 21-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: P ROY CHAUDHARI
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.2447/DEL/2010 ASSESSMENT YEAR : 2005-06 NARENDER JAIN, E-203, NARWANA APARTMENTS, IP EXTENSION, NEW DELHI. PAN : ACYPJ8724E VS. ACIT, CIRCLE 28 (1), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. ROY CHAUDHARI, CA REVENUE BY : SHRI H.K. LAL, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF THE CIT (A) DATED 8 TH MARCH, 2010 FOR ASSESSMENT YEAR 2005-06. GROUNDS OF APPEAL READ AS UNDER:- 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT (A) ERRED IN CONFIRMING THE ORDER OF THE LD. AS SESSING OFFICER BY IGNORING THE ADDITIONAL EVIDENCE PRODUCE D BY THE APPELLANT DURING THE APPELLATE PROCEEDINGS. 2. THAT IN SUCH A SITUATION THE APPELLANT HAS BE EN PREJUDICED AS THE LD. CIT (A) HAD IGNORED THE ADDITIONAL EVIDE NCE AND CONFIRMED THE ADDITION OF RS.202015/- WHICH WAS DEB ITED AS FREIGHT PAID TO M/S MARITIME SERVICES PVT. LTD. FOR NON DEDUCTION OF TDS. 3. THAT THE APPELLANT CRAVES LEAVE TO RAISE/ADD/M ODIFY/DELETE A GROUND/S. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE DID NOT DEDUCT TAX FROM CERTAIN PARTIES AND ITA NO.2447/DEL/2010 2 APPLYING THE PROVISIONS OF SECTION 40(A) (IA) OF IT ACT, 1961 THE ASSESSING OFFICER HAS MADE THE DISALLOWANCE OF RS.25,59,270/- THE DET AILS OF WHICH ARE AS UNDER:- M/S NORTON MARINE SERVICES PVT. LTD. RS.28000/- RS.29500/- ON 03/11/04 ON 07/12/04 M/S MACNET LINES (P) LTD. RS.155595/- ON 24/12/04 M/S EXPO FREIGHT LTD. RS.642710/- 24/06/04 TO 10/03 /05 M/S MACNET LINES (P) LTD. RS.1315700/- 25/10/04 TO 20/12/04 M/S MARITIME SERVICES (P) LTD. RS.202015/- 19/10/04 TO 25/10/04 M/S NEELS CONTAINERS LINEST PVT. LTD. RS.235750/- 2 4/12/04 3. BEFORE THE CIT (A) THE ASSESSEE SOUGHT TO FILE A LETTER IN RESPECT OF A SUM OF RS.2,02,015/- BELONGING TO M/S MARITIME SERVICES PVT. LTD. WHEREIN DDIT (INTERNATIONAL TAXATION), 2 (1) HAS ISSUED 100% DIT RELIEF. LD. CIT (A) REFUSED TO TAKE INTO CONSIDERATION THE SAME AND UPHELD THE DIS ALLOWANCE. THE ASSESSEE IS AGGRIEVED, HENCE, IN APPEAL. 4. BEFORE US, IT WAS PLEADED BY LD. AR THAT TO ALL THESE PARTIES .DDIT (INTERNATIONAL TAXATION) HAD ISSUED 100% DIT RELIEF , HENCE, THE ASSESSEE WAS NOT LIABLE TO DEDUCT ANY TAX FROM THE AMOUNTS PAID TO THESE PARTIES. HE CONTENDED THAT THE ASSESSEE COULD NOT OBTAIN THE EV IDENCE WHILE ASSESSMENT PROCEEDINGS WERE COMPLETED AND ALSO COULD NOT GET A LL THE CERTIFICATES EVEN DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT (A) . HE SUBMITTED THAT NOW THE ASSESSEE HAS ALL THE CERTIFICATES WITH HIM ACCORDIN G TO WHICH 100% DIT RELIEF WAS GIVEN TO ALL THESE PARTIES, AND, HENCE, THE ASSESSE E WAS NOT LIABLE TO DEDUCT TAX AT SOURCE FROM THESE PAYMENTS. HE SUBMITTED THAT I N THE INTEREST OF JUSTICE THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSIN G OFFICER WITH A DIRECTION TO ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF HEAR ING TO PRODUCE ALL THESE DOCUMENTS. HE SUBMITTED THAT THE ASSESSEE HAS BEEN FASTENED WITH THE LIABILITY WHICH ACTUALLY IS NOT DUE AS PER THE PROVISIONS OF THE ACT AS THE RESPECTIVE PARTIES HAVE BEEN ISSUED THE EXEMPTION CERTIFICATE FROM THE INCOME-TAX DEPARTMENT. ITA NO.2447/DEL/2010 3 5. ON THE OTHER HAND, RELYING UPON THE ORDER OF ASS ESSING OFFICER AND CIT (A) IT WAS PLEADED BY LD. DR THAT DESPITE THE OPPORTUNI TIES GIVEN THE ASSESSEE COULD NOT PRODUCE THE RELEVANT EVIDENCE, HENCE, THE ASSES SEE MAY NOT BE ALLOWED TO PRODUCE THE EVIDENCE AND THE CIT (A) HAS RIGHTLY RE JECTED THE SAME. IT WAS SUBMITTED THAT THE ORDER OF THE CIT (A) SHOULD BE U PHELD AND THE APPEAL FILED BY THE ASSESSEE SHOULD BE DISMISSED. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. SIMPLY FOR THE REASON T HAT THE ASSESSEE COULD NOT COLLECT THE NECESSARY EVIDENCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR APPELLATE PROCEEDINGS THAT HE WAS NOT LIABLE FOR DE DUCTION OF TAX, THE CLAIM OF THE ASSESSEE CANNOT BE REJECTED. IF THE ASSESSEE IS AB LE TO PLACE ON RECORD THE EVIDENCE TO SHOW THAT IN FACT THOSE PARTIES WERE EX EMPTED BY THE DEPARTMENT FROM TAX, THEN, IN THE INTEREST OF JUSTICE THE MATT ER REQUIRES TO BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO PROVIDE THE ASSESS EE WITH SUCH OPPORTUNITY TO PRODUCE THE EVIDENCE TO SHOW THAT HE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE. ACCORDINGLY, WE RESTORE THE ISSUE OF DISALLOWANCE M ADE U/S 40 (A)(IA) TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO PROVIDE THE A SSESSEE A REASONABLE OPPORTUNITY OF HEARING TO PLACE THE NECESSARY EVIDE NCE ON RECORD TO CONTEND THAT HE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE FROM THES E PAYMENTS AND TO CONTEND THAT PROVISIONS OF SECTION 40(A)(IA) COULD NOT BE A PPLIED FOR MAKING SUCH DISALLOWANCE. AFTER GIVING SUCH OPPORTUNITY THE AS SESSING OFFICER WILL RE- ADJUDICATE THE ISSUE IN ACCORDANCE WITH THE LAW. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.07. 2010. SD/- SD/- [R.C. SHARMA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 22.07.2010. ITA NO.2447/DEL/2010 4 DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES