SUPRIYA SILK INDUSTRIES, MUMBAI V. ITO 18(3)(4), MUMBAI

ITA 317/MUM/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3620 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 20-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAVDR
• Section: 194C

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.317/MUM/2016 ASSESSMENT YEAR: 2012-13 M/S SUPRIYA SILK INDUSTRIES, 23/25, 2 ND FLOOR, CHAMPA GALLI, MUMBAI-400002 / VS. ITO-18(3)-4, MUMBAI / ASSESSEE / REVENUE P.A. NO . AAAFS8864Q $ % & / ASSESSEE BY SHRI BHUPENDRA SHAH $ % & / REVENUE BY SHRI VISHWAS JADHAV-DR / DATE OF HEARING 08/03/2016 & / DATE OF ORDER: 10/03/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 06/11/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTA INS TO ITA NO.5619/MUM/2015 NANJI GANPAT CHHEDA DISCRETIONARY TRUST 2 DISALLOWING RS.3,23,794/- U/S 40(A)(IA) OF THE INCO ME TAX ACT, 1961 (HEREINAFTER THE ACT) ON ACCOUNT OF PAYME NT MADE TO TRANSPORTER WITHOUT TDS BECAUSE PAN OF SUCH TRANSPORTER WERE NOT FURNISHED U/S 194C(7) OF THE A CT. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI BHUPENDRA SHAH, ADVANCED ARGUMENTS WHICH IS IDENTICAL TO THE GROUND RAISED BY INVITING OUR ATTENTION TO PAGE 65 OF THE PAPER BOOK, CONTAINING THE ORDER OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF VIJAY SIDDHRAJ BASHTE VS ADDL. CIT (2014) 49 TAXMAN .COM 334 (PUNE TRIB.). ON THE OTHER HAND, THE LD. DR, S HRI VISHWAS JADHAV, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS OF MANUFACTURING/PROCESSING OF TEXTILES ON JOB WORK BASIS. THE ASSESSEE RETURNED ITS INCOME AT RS.7,47,709/- W HICH WAS ASSESSED AT RS.10, 71,503/- MAKING ADDITION OF RS.3,23,794/-. WHILE DOING SO, THE LD. ASSESSING OF FICER MADE DISALLOWANCE ON ACCOUNT OF NON-DEDUCTION OF TD S ON TRANSPORTATION CHARGES/PAYMENT OF TRANSPORTATION CHARGES U/S 194C(7) OF THE ACT BY OBSERVING THAT T DS ON PAYMENTS TO TWO TRANSPORTERS WAS NOT DEDUCTED. THE STAND OF THE ASSESSEE IS THAT TDS WAS NOT DEDUCTIBL E ON SUCH PAYMENT MADE TO THOSE TRANSPORTERS WHO HAVE ITA NO.5619/MUM/2015 NANJI GANPAT CHHEDA DISCRETIONARY TRUST 3 FURNISHED THEIR PAN TO THE ASSESSEE. THE LD. ASSESS ING OFFICER OBSERVED THAT SUCH DETAILS WHICH WERE REQUI RED TO BE FURNISHED U/S 194C(7) OF THE ACT WERE NOT FURNIS HED. ON APPEAL, THE STAND TAKEN IN THE ASSESSMENT ORDER WAS AFFIRMED. THE ASSESSEE IS IN FURTHER APPEAL, BEFORE THIS TRIBUNAL. 2.2. IF THE OBSERVATION MADE IN THE ASSESSMENT ORDER, LEADING TO ADDITION MADE TO THE TOTAL INCOME , CONCLUSION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RES PECTIVE COUNSEL, IF KEPT IN JUXTAPOSITION AND ANALYZED, I F IND THAT UNDER THE FACTS NARRATED HEREINABOVE, A CO-JOINT RE ADING OF SECTION 194C AND 40(A)(IA) OF THE ACT WITH RESPECT TO PAYMENTS MADE TO CONTRACTORS/SUB-CONTRACTORS/ TRANSPORTERS, WHERE THE ASSESSEE FURNISHED PAN OF T HOSE TRANSPORTERS, TO WHOM PAYMENTS WERE MADE, AS PER PROVISIONS OF SECTION 194C(6) OF THE ACT, TDS WAS N OT REQUIRED TO BE MADE. AS PER RULE 29D OF THE RULES, THE SUB-CONTRACTOR IS REQUIRED TO FURNISH DECLARATION I N FORM 15-I TO THE CONTRACTOR BEFORE ACTUAL PAYMENT OR ACT UAL CREDIT TO HIS ACCOUNT TAKES PLACE. AT THE SAME TIME , AS PER SECTION 194C (6), NO DEDUCTION SHALL BE MADE FROM A NY SUM CREDITED OR PAID OR LIKELY TO BE CREDIT OR PAID DURING THE PREVIOUS YEAR TO THE ACCOUNT OF A CONTRACTOR DU RING COURSE OF BUSINESS OF PLYING, HIRING OR LEASING GOO DS CARRIAGES ON FURNISHING OF HIS PERMANENT ACCOUNT NU MBER TO THE PERSON PAYING OR CREDITING SUCH SUM. AS PER CLAUSE ITA NO.5619/MUM/2015 NANJI GANPAT CHHEDA DISCRETIONARY TRUST 4 (7) TO SECTION 194C OF THE ACT, THE PERSON RESPONSI BLE FOR PAYING OR CREDITING ANY SUM TO THE PERSON REFERRED TO IN SUB-SECTION (6) SHALL FURNISH, TO THE PRESCRIBED IN COME TAX AUTHORITY OR THE PERSON AUTHORIZED BY IT, SUCH PART ICULARS IN SUCH FORM AND WITHIN SUCH TIME AS MAY BE PRESCRI BED. BEFORE THIS TRIBUNAL, THE ASSESSEE HAS CLAIMED THAT NECESSARY DOCUMENTS/PAN WAS DULY FURNISHED BY THE CONCERNED PERSON. IT IS ALSO NOTED THAT IN PARA 3 OF THE ASSESSMENT ORDER, THERE IS MENTIONED BY THE LD. ASS ESSING OFFICER HIMSELF, THE ASSESSEE SUBMITTED PAN OF THES E TWO PARTIES AND ALSO LETTER FROM ONE OF THE PARTIES M/S MOOGIPA ROADWAYS PVT. LTD. IN VIEW OF THIS CLAIM, THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE AUTHEN TICITY OF THE CLAIM OF THE ASSESSEE AND IF IT IS FOUND TO BE CORRECT, THEN, NECESSARY RELIEF MAY BE GRANTED. THE LD. ASSE SSING OFFICER IS ALSO TO EXAMINE THE FACT, WHETHER THE PA N OF THESE TWO PARTIES WERE ISSUED PRIOR TO MAKING THE PAYMENTS. IF THE PAN WERE ISSUED PRIOR TO PAYMENTS THEN THERE IS FORCE IN THE CONTENTION OF THE ASSESSEE. THE LD. ASSESSING OFFICER IS NOT EXPECTED TO GO INTO MUCH TECHNICALITIES AND TO EXERCISE THE DISCRETION JUSTI FIABLY. EVEN OTHERWISE, THE MANDATE OF THE CONSTITUTION IS TO LEVY AND COLLECT DUE TAXES. AFTER ASCERTAINING THE FACT S, EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUN ITY OF BEING HEARD TO SUBSTANTIATE ITS CLAIM, THUS, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.5619/MUM/2015 NANJI GANPAT CHHEDA DISCRETIONARY TRUST 5 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 08/03/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 10/03/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI