M/s. Pratibha Exim Pvt. Ltd., Indore V. The ACIT, Ratlam

ITA 31/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8010 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: GARJANA RATHORE
• Keywords: TDS
• Section: 40(a)(ia)

Judgement Text

1 THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO. 31/IND/10 A.Y. 2006-07 PRATIBHA EXIM PVT. LTD INDORE PAN AACCP2339L APPLICANT VS ASSTT. COMMR. OF INCOME TAX RATLAM RESPONDENT APPLICANT BY SMT. GARJANA RATHORE RESPONDENT BY SMT. APARNA KARAN O R D E R PER BENCH THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LEARNED CIT(A) DATED 31 ST OCTOBER, 2009 FOR THE ASSESSMENT YEAR 2006-07. 2. GROUND NOS. 1 AND 2 READ AS UNDER :- 1. THAT THE LD. ACIT HAS ERRED IN LAW BY DISALLOWI NG RS.1,04,80,591/- U/S 40(A)(IA) ON ACCOUNT OF JOB WORK CHARGES CARRIED OUT BY M/S KARTIK SOLVEX PVT. LTD. 2 2. THAT THE LD. ACIT HAS ERRED IN LAW BY DISALLOWIN G RS.11,22,460/- U/S 40(A)(IA) ON ACCOUNT OF CLEARING , FORWARDING AND TRANSPORTATION WORK CARRIED OUT BY M/S SWASTIK ENTERPRISES, INSPITE THE FACT THAT THE TDS HAS BEEN DEDUCTED AND PAID ON THE SAID AMOUNT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR AT TENTION TO THE APPELLATE ORDER AND SUBMITTED THAT ON 29.10. 2009 THE CA HAD WITHDRAWN HIS POWER OF ATTORNEY. HOWEVER, ON 3 0.10.2009 I.E. ONE DAY AFTER THAT DATE, THE LEARNED COMMISSIO NER OF INCOMETAX (APPEALS) DISMISSED THE APPEAL IN LIMINE FOR WANT OF PROSECUTION WHICH WAS NOT CORRECT IN LAW AS THE LEA RNED COMMISSIONER OF INCOMETAX (APPEALS) WAS TO DECIDE T HE APPEAL ON MERITS. SHE FURTHER DREW OUR ATTENTION T O THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESS MENT ORDER THAT THE ASSESSEE HAD FAILED TO DEPOSIT THE TAX IN TIME AFTER DEDUCTION OF TAX AT SOURCE. HOWEVER, THE FACT WAS THAT THE ASSESSEE HAD NEVER DEDUCTED ANY TAX AT SOURCE. SHE FURTHER CONTENDED THAT EVEN ON MERIT, THE ASSESSEE WAS HAVI NG A STRONG CASE, IN VIEW OF VARIOUS DECISIONS. ACCORDI NGLY, SHE PRAYED THAT THE MATTER COULD BE RESTORED TO THE FIL E OF THE ASSESSING OFFICER. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, PLACED STRONG RELIANCE ON THE ORDERS OF THE R EVENUE AUTHORITIES. 3 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUT HORITIES BELOW. IT IS NOTED THAT IT IS A CASE WHERE A DISALL OWANCE HAS BEEN MADE UNDER SECTION 40(A)(I) OF THE ACT FOR WAN T OF NON- DEDUCTION OF TAX ON MANUFACTURING JOB WORK ACTIVITI ES. THERE ARE CERTAIN FACTUAL FACTS WHICH ARE REQUIRED TO BE VERIFIED. FURTHER, JUDICIAL DECISIONS RENDERED SUBSEQUENTLY H AVE TO BE TAKEN INTO CONSIDERATION IN THE LIGHT OF THE FACTS OF THIS CASE. THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) HAS ALSO NOT PASSED ORDER ON MERIT, WHICH IS CONTRARY TO THE PRO VISIONS OF LAW. IN THE BACKGROUND OF THESE FACTS, WE ARE OF T HE VIEW THAT THE INTERESTS OF JUSTICE REQUIRE THAT THIS CASE SHO ULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECISION T HEREON AFRESH AS PER LAW, AFTER GIVING DUE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE, WHO SHALL BE AT LIBERTY TO ADDUCE NECESSA RY EVIDENCE TO SUBSTANTIATE ITS CLAIM. THUS, BOTH THESE GROUND S ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 26 TH MARCH, 2010 SD SD (JOGINDER SINGH) (V.K. GUPTA) JUDICIAL MEMBER ACCOUNTAN T MEMBER 26 TH MARCH, 2010 COPY TO APPLICANT, RESPONDENT, CIT, CIT(A), DR, GUA RD FILE 4 D/-