The ITO,(TDS), Valsad V. M/s. JBF Industries Ltd., SILVASSA

ITA 2773/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57016 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S SURYAWANSHI
• Assessee Lawyers: S N DIVATIA
• Section: 194C; 201(1)

Judgement Text

ITA NO.2773-2774/AHD/2011 ASST.YEARS 2009-10 & 2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHM EDABAD (BEFORE SHRI G.C.GUPTA,VICE PRESIDENT AND SHRI A.L . GEHLOT) I.T.A. NO. 27 73/AHD/2011 (ASSESSMENT YEAR: 2009-2010) INCOME TAX OFFICER (TDS), ASHISH BUILDING, OLD RTO BUILDING, MADANWAD, VALSAD. (APPELLANT) VS. M/S. JBF INDUSTRIES LTD., SURVEY NO.273, VILLAGE ATHOLA, SILVASA. (RESPONDENT) I.T.A. NO. 2774/AHD/2011 (ASSESSMENT YEAR: 2010-2011) INCOME TAX OFFICER (TDS), ASHISH BUILDING, OLD RTO BUILDING, MADANWAD, VALSAD. (APPELLANT) VS. M/S. JBF INDUSTRIES LTD., SURVEY NO.273, VILLAGE ATHOLA, SILVASA. (RESPONDENT) PAN: AACFN 4402D ON BEHALF OF THE REVENUE :SHRI G.S. SURYAWANSHI, SR . D.R. ON BEHALF OF THE ASSESSEE :SHRI S. N.DIVATIA. ( )/ ORDER DATE OF HEARING : 10-1-2012 DATE OF PRONOUNCEMENT : 13-1-2012 PER: SHRI A.L. GEHLOT,A.M. THESE TWO APPEALS ARE OF THE REVENUE AGAINST THE C OMMON ORDER OF LD. CIT (A) VALSAD IN APPEAL NO. CIT (A)VLS/173/09-10 DATED 11-8-2011. ITA NO.2773-2774/AHD/2011 ASST.YEARS 2009-10 & 2010-11 2 2. BOTH THESE APPEALS ARE BY THE DEPARTMENT. A COMM ON GROUND RAISED IN BOTH THE APPEALS BY REVENUE IN ITS APPEAL IS THAT CIT (A ) ERRED IN DELETING THE ORDER PASSED U/S. 201(1) OF THE ACT, RS.3,52,607/- AND IN TEREST RS.56,417/- U/S. 201(1A) FOR THE ASSESSMENT YEAR 209-10 AND RS.43,020/- U/S. 201(1) FOR THE ASSESSMENT YEAR 2010-11. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A LIMITED COMPANY ENGAGED IN MANUFACTURING OF POY AND POLYSTER CHIPS. A SURVE Y U/S.133A WAS CARRIED OUT. DURING THE COURSE OF SURVEY IT WAS NOTICED THAT THE ASSESSEE HAS INCURRED EXPENSES LIABLE FOR DEDUCTION OF TAX AT SOURCE UNDER CHAPTER XVII-B SUCH AS SALARY, JOB WORK AND TECHNICAL SERVICES, COMMISSION BROKERAGE, INTER EST, CLEARING AND FORWARDING EXPENSES, SHIPPING REPAIRING ETC., IT WAS FURTHER N OTICED THAT ON VEHICLE HIRING CHARGES AMOUNTING TO RS.49,67,653/- THE ASSESSEE WA S DEDUCTING TAX AT 2.66%.THE AO WAS OF THE VIEW THAT THE ASSESSEE IS LIABLE TO D EDUCT TAX AT SOURCE U/S. 194I ON THE GROUND THAT HIRING OF MOTOR VEHICLE IS WITHIN T HE MEANING OF PLANT AND MACHINERY AND AMOUNT PAID FOR HIRE IS NOTHING BUT T HE RENT PAID FOR PLANT AND MACHINERY. THEREFORE, ACCORDING TO SECTION 194I, TH E ASSESSEE WAS LIABLE TO DEDUCT TAX AT 11.33%.THE A.O. CREATED DEMAND OF THE DIFFER ENCE AMOUNT AND ALSO CHARGED INTEREST. THE CIT (A) ALLOWED THE APPEAL OF THE ASS ESSEE ACCEPTING THE ASSESSEES CONTENTION THAT THE CASE OF THE ASSESSEE IS COVERED BY SECTION 194C OF THE ACT AND NOT U/S. 194I OF THE ACT. AT THE OUTSET THE LD. AR SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY LATES T JUDGMENT OF APEX COURT IN THE CASE OF CIT (TDS) VS. SHREE MAHALKAXMI TRANSPORT CO . 339 ITR -484 (GUJ). 4. THE LD. DR SUBMITTED THAT THE FACTS OF THE CASE ARE REQUIRED TO BE VERIFIED IN THE LIGHT OF THE JUDGMENT OF THE JURISDICTIONAL HIG H COURT. AFTER HEARING LD. REPRESENTATIVES OF THE PARTIES WE FIND THE FACTS OF THE CASE ARE REQUIRED VERIFICATION ITA NO.2773-2774/AHD/2011 ASST.YEARS 2009-10 & 2010-11 3 IN THE LIGHT OF ABOVE JUDGMENT OF JURISDICTIONAL HI GH COURT THEREFORE, WE SEND BACK THIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION T O VERIFY THE FACTS AND DECIDE THE ISSUE IN ACCORDANCE WITH JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT (TDS) VS. MAHALAXMI TRANSPORT CO. (SUPRA). 5. IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWE D FOR STATISTICAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 13- 01 - 2012. SD/- SD/- (G. C. GUPTA) (A. L.GEHLOT) VICE PRESI DENT ACCOUN TANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-VALSAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.2773-2774/AHD/2011 ASST.YEARS 2009-10 & 2010-11 4 1.DATE OF DICTATION 10 - 01 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 11 / 01 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 12 - 1 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13 - 1 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 13 -1 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13 - 1 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..