ITO 30(2)(1), MUMBAI V. KARAKAL V. VARGHESE, MUMBAI

ITA 2734/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2609 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68

Judgement Text

, , SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, SMC MUMBAI , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.2734/MUM/2015 ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER 30(2)(1) ROOM NO. 606, 6 TH FLOOR C-13, PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E), MUMBAI / VS. SHRI KARAKAL V. VARGHESE M/S. ANU ENG. WORKS OPP. SOUTH INDIA TEMPLE SRAMCHANDRA LANE KACH PADA, MALAD WEST MUMBAI 400064 ( / REVENUE) ( /ASSESSEE) PAN. NO. AAAPV7565R ! ' #$ / DATE OF HEARING : 13/07/2016 ' #$ / DATE OF ORDER: 13/07/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATE D 27/02/2015 OF LD. COMMISSIONER OF INCOME TAX, MUMBA I. / REVENUE BY SHRI RAJESH OJHA, JCIT / ASSESSEE BY NONE ITA NO.2734/MUM/2015 SHRI KARAKAL V. VARGHESE 2 THE ONLY GROUND AGITATED BY THE REVENUE, BEFORE THI S TRIBUNAL, IS WITH RESPECT TO DELETING THE ADDITION MADE UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING THE LEARNED D.R. SHRI RAJESH OJHA , MERELY RELIED UPON THE ASSESSMENT ORDER AND THE CON SEQUENT ADDITION MADE THEREIN. ON THE OTHER HAND, NOBODY WA S PRESENT FOR THE ASSESSEE IN SPITE OF ISSUANCE OF RE GISTERED AD NOTICE ON 29.06.2016. THE ASSESSEE NEITHER PRESENTE D HIMSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT T HE ASSESSEE HAS NOTHING TO SAY. THEREFORE I HAVE NO OP TION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE, AND DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. I HAVE CONSIDERED THE SUBMISSION OF LEARNED A.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THOUGH VA RIOUS ADDITIONS WERE MADE IN THE PRESENT APPEAL LIKE SECT ION 68 BUT THE DEPARTMENT IS IN APPEAL WITH RESPECT TO ADDITIO N MADE UNDER SECTION 40(A)(IA) OF THE ACT. THIS ISSUE HAS BEEN DISCUSSED IN PARA 10 OF THE ASSESSMENT ORDER WHEREI N IN THE PROFIT & LOSS ACCOUNT THE ASSESSEE HAS CLAIMED/DEBI TED CERTAIN EXPENSES. THE ASSESSEE WAS ASKED TO EXPLAIN THE POSITION OF TAX DEDUCTED AT SOURCE ALONG WITH DETAI LS OF SUCH EXPENSES. THE ASSESSEE DULY FILED THE DETAILS AND A LSO COPY OF CHALLAN SHOWING THE TAX DEDUCTED AT SOURCE. HOWEVER , THE LEARNED ASSESSING OFFICER MADE CERTAIN DISALLOWANCE S. ON APPEAL BEFORE THE LEARNED CIT(A) THE DISALLOWANCE M ADE BY THE ASSESSING OFFICER WAS DELETED. I FIND THAT THE ASSE SSEE HAS DELIBERATED UPON THE NON-APPLICABILITY OF THE TDS P ROVISIONS WITH RESPECT TO CERTAIN PARTIES AND HAS CONSIDERED THE PARTY- ITA NO.2734/MUM/2015 SHRI KARAKAL V. VARGHESE 3 WISE DETAILS OF THE EXPENSES FROM PARA 5.2.1 ON WAR DS OF THE IMPUGNED ORDER. THE CLAUSE 11 OF THE FINANCE BILL 2 004 ALONG WITH THE PROVISION HAS BEEN DELIBERATED UPON ALONG WITH THE DECISION IN CIT VS. MOTHER INDIA REFRIGERATION INDU STRIES PVT. LTD. (1985) 155 TAXMAN 711, SS NETWORKS VS. ITO (20 15) 53 TAXMANN.COM 534 (HYD), PADAM SUNDRA RAO VS. STATE ( 2002) 255 ITR 147 (SC), ACIT VS. VELLIAPA TEXTILES LTD. ( 2003) 263 ITR 550, RAJIV KUMAR AGARWAL VS. ADDL. CIT (2014) 4 5 TAXMANN.COM 555 (AGRA) AND FOUND THAT ASSESSEE DULY DEDUCTED TAX ON LABOUR CHARGES AND ON SOME PARTIES THE TDS PROVISION IS NO APPLICABLE AS THE TRANSACTION , DUR ING THE YEAR, WAS BELOW EXEMPTION LIMIT. SO FAR AS NON-DEDUCTION ON FREIGHT, COMMISSION AND BROKERAGE IS CONCERNED AFTER CONSIDE RING THE TOTALITY OF FACTS NOTHING WAS FOUND AGAINST THE ASS ESSEE. CONSIDERING THE TOTALITY OF FACTS AND THE FOREGOING DECISION INCLUDING THE JUDICIAL PRONOUNCEMENTS I FIND NO INF IRMITY IN THE CONCLUSION OF THE LEARNED CIT(A). IT IS AFFIRME D. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. D.R. AT THE CONCLUSION OF THE HEARI NG ON 13/07/2016. SD/- (JOGINDER SINGH) ! /JUDICIAL MEMBER ! MUMBAI; & DATED : 13/07/2016 AA? P.S / /. . . ITA NO.2734/MUM/2015 SHRI KARAKAL V. VARGHESE 4 ' #$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. ()*+, / THE APPELLANT (RESPECTIVE ASSESSEE) 2. -.+, / THE RESPONDENT. 3. / / 0 ( ()* ) / THE CIT-24/30, MUMBAI. 4. / / 0 / CIT(A)-41, MUMBAI, 5. 23 - , / ()*# (4 , ! / DR, SMC BENCH, ITAT, MUMBAI 6. 5 6!* / GUARD FILE. / BY ORDER, .2) - //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI