A.C.I.T., Circle-1, Gwalior V. Sh. Deepak Anand, Gwalior

ITA 307/AGR/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0777 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 7 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 07-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK VIJAYWARGIYA; ANK IT WARGI YA
• Keywords: TDS
• Section: 143(3); 40(a)(ia); 201; 6; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A GRA BENCH: A GRA BEFORE S HRI A. D. JAIN, JUDICIAL MEMBER AND DR. MITHA LAL MEENA , ACCOUNTANT MEMBER I.T.A NO. 3 07/ A GR /201 4 (ASSESSMENT YEAR S. - 200 6 - 0 7 ) ACIT, CIRCLE - 1, GWALIOR ( REVENUE ) V S .. SHRI DEEPAK ANAND PROP. JENEX INTERNATIONAL, C/O HEERANI BHAWAN, LASHKAR, GWALIOR PANNO. AAKPA7642N ( ASSESSEE ) I.T.A NO. 308/ A GR /201 4 (ASSESSMENT YEAR - 2006 - 07 ) ACIT, CIRCLE - 1, GWALIOR ( REVENUE ) VS .. SMT. PRABHA ANAND W/O SHRI YOGESH ANAND HEERANI BHAWAN, LASHKAR, GWALIOR PANNO. A CJPA1637J ( ASSESSEE ) REVENUE BY SHRI WASEEM ARSHAD , SR.D R . ASSESSEE BY SHRI ASHOK VIJAY WARG I YA, & SHRI ANK IT WARGI YA , A R . ORDER DATE OF HEARING 29 . 11 .2016 DATE OF PRONOUNCEMENT 30 .1 1 . 201 6 I.T.A NO. 3 07 & 308 /A G R /2014 2 PER, A. D. JAIN, JUDICIAL MEMBER: BOTH APPEALS FILED BY THE REVENUE ARE IN RELATION TO THE ASSESSMENT YEAR 200 6 - 0 7 , RESPECTIVELY . 2. FIRST WE TAKE UP ITA NO. 307 /A GR /2014 . HERE THE DEPARTMENT CONTENDS T HAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE DISALLOWANCE OF TREATMENT CHARGES OF RS.53,99,974/ - IN THE HANDS OF THE AS SESSEE U/S 40(A)(IA) OF THE ACT, ON ACCOUNT OF NON - DEPOSIT OF TAXES THAT HAVE BEEN DEDUCTED AT SOURCE DURING THE PERIOD FROM 30.06.2005 TO 31.12.2005, BUT HAVE NOT BEEN DEPOSITED INTO THE GOVERNMENT ACCOUNT BEFORE THE END OF THE PREVIOUS YEAR, IS NOT A MISTAKE APPARENT FROM THE RECORD AND IT, HENCE, DOES NOT COME UNDER THE PURVIEW OF SECTION 154 OF THE ACT. 3. THE FACTS ARE THAT THE ASSESSEE FILED RETURN OF INCOME , DECLARING INCOME OF RS.37,74,940/ - AND ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 18.12.2008, AT A TOTAL INCOME OF RS.38,69,940/ - . IT WAS FOUND BY THE AO THAT THE ASSESSEE HAD PAID/CLAIMED TREATMENT CHARGES TO THE EXTENT OF RS.84,51,100/ - ; THAT TREATMENT CHARGES TO THE EXTENT OF RS.53,99,974/ - WERE PAID TO THE CONTRACTOR AND TDS OF RS.1,10,158/ - WAS MADE FROM 30.06.2005 TO 31.12.2005; THAT, HOWEVER, THIS TDS WAS NOT DEPOSITED INTO THE GOVERNMENT ACCOUNT TILL 31.03.2006; THAT AS SUCH, THE ASSESSEE HAD FAILED TO COMPLY WITH THE PROVISIONS OF I.T.A NO. 3 07 & 308 /A G R /2014 3 SECTION 40(A)(IA) OF THE ACT; AND THAT THEREFORE, THERE WAS A MISTAKE APPARENT FROM THE FACE OF THE RECORD. THE REPLY OF THE ASSESSEE IN RESPONSE TO THE NOTICE ISSUED U/S 154 OF THE ACT WAS CONSIDERED AND IT WAS HELD BY THE AO THAT THERE WAS A MISTAKE APPARENT FROM THE RECORD, WHICH MISTAKE WAS RECTIFIABLE U/S 154 OF THE ACT. ACCORDINGLY, THE AO REVISED THE ASSESSED INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, MAKING ADDITION OF RS.53,99,974/ - UNDER THE PROVISION S OF SECTION 40(A)(IA) OF THE ACT. THE ASSESSED INCOME OF THE ASSESSEE WAS THUS REVISED FROM RS .38,69,940/ - TO RS.92,69914/ - . 4. BY VIRTUE OF THE IMPUGN ED ORDER, THE LD. CIT(A) REVERSED THE AOS AFORESAID ORDER PASSED U/S 154 OF THE ACT. 5. AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE US . 6. AS PER THE LD. DR, THE LD. C IT(A) HAS ERRED IN HOLDING T HAT THERE WAS NO MISTAKE APPARENT FROM THE RECORD. 7. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 8. WE HAVE HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL PLACED ON RECORD. THE FACTS ARE NOT DISPUTED. AS PER THE PROVISIONS OF SECTION 154 OF THE ACT, ANY MISTAKE WHICH IS APPARENT FROM THE RECORD IS RECTIFIABLE THERE - UNDER. I.T.A NO. 3 07 & 308 /A G R /2014 4 9. THE ISSUE OF DISALLO WANCE U/S 40(A)(IA) OF THE ACT OF EXPENDITURE REMAINING PAYABLE AT THE END OF THE YEAR STANDS S ETTLED IN FAVOUR OF THE ASSESSEE BY THE HONBLE SUPREME COURT VIDE ITS ORDER DATED 02.07.2014 IN THE CASE OF CIT VS. M/S VECTOR SHIPPING SERVICES (P) LTD., DISMISSING THE SLP FILED BY THE DEPARTMENT VIDE C . C . NO.8068/2014, AGAINST THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN CIT VS. M/S VECTOR SHIPPING SERVICES (P) LTD., 357 ITR 642 (ALL), WHEREIN, IT WAS HELD, INTERALIA, THAT FOR DISALLOWING EXPENSES FROM BUSINESS AND PROFESSION ON THE GROUND THAT TAX HAS NOT BEEN DEDUCTED AT SOURCE, THE AMOUNT SHOULD BE PAYABLE AND NOT WHICH HAS BEEN PAID BY THE END OF THE YEAR. 10. EAR LIER, THERE W AS A DIVERGEN CE OF OPINION BETWEEN DIFFERENT HIGH COURTS O N THIS ISSUE . H OWEVER, THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S VECTOR SHIPPING SERVICES (P) LTD. (SUPRA), UPHOLDING THE DECISION OF THE HONBLE JURISDICTI ONAL HIGH COURT, HAS P UT THE CONTROVERSY TO REST. TH AT BEING SO, THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH COULD BE SAID TO BE RECTIFIABLE UNDER THE PROVISIONS OF SECTION 154 OF THE ACT. 11. THE ABOVE POSITION HAS CORRECTLY BEEN TAKEN INTO CONSID ERATION BY THE LD. CIT(A) AND HE HAS RIGHTLY HELD THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD, RECTIFIABLE U/S 154 OF THE ACT, BY VIRTUE OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S VECTOR SHIPPING SERVICES (P) LTD.,(SUPRA). I.T.A NO. 3 07 & 308 /A G R /2014 5 12. WE FIND NO ERROR WHATSOEVER IN THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY, THE SAME IS HEREBY CONFIRMED. THE GRIEVANCE SOUGHT TO BE RAISED BY THE DEPARTMENT IS FOUND TO S HO RN OF MERIT. IT IS REJECTED AS SUCH. ITA NO.308/AGR/2014 13. THE FACTS IN THE PRESENT CASE ARE, MUTATIS MUTANDIS, EXACTLY SIMILAR TO THOSE PRESENT IN ITA NO. 307/AGR/2014. THEREFORE, OUR ABOVE OBSERVATION S SHALL, MUTATIS MUTANDIS, APPLY TO THE PRESENT APPEAL ALSO. 14. IN THE RESULT, BOTH APPEALS ARE DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 30 /1 1 / 2016. SD/ - SD/ - ( DR. MITHA LAL MEENA ) (A. D. JAIN) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED 30 /1 1 /2016 * AKV * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR I.T.A NO. 3 07 & 308 /A G R /2014 6 DATE 1. DRAFT DICTATED (DNS) 2 9 .1 1 .201 6 PS 2. DRAFT PLACED BEFORE AUTHOR 2 9.11 . 201 6 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 30.11.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 30.11.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.