ACIT, CHENNAI V. Myung Sung India Precision Pvt Ltd., Kancheepuram

ITA 331/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9349 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-02-2016
• Court: TRIBUNAL
• Department Lawyers: H KABILA
• Assessee Lawyers: S RAGHUNATHAN
• Keywords: Non-deduction of tax

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.331/MDS/2016 / ASSESSMENT YEAR : 2011-12 THE ASSTT. COMMISSIONER OF INCOME-TAX CORPORATE CIRCLE 4(1) CHENNAI VS. M/S MYUNG SUNG INDIA PRECISION PVT. LTD NO.101/55, THANDALAM VILLAGE SRIPERUMBUDUR TALUK KANCHIPURAM DISTRICT 602 105 [PAN AAECM 7514 J ] ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : MS. H. KABILA, JCIT /RESPONDENT BY : SHRI S. RAGHUNATHAN, ADVOCATE / DATE OF HEARING : 07 - 04 - 2016 ! / DATE OF PRONOUNCEMENT : 19 - 05 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-8, CHENNAI , DATED 20.11.2015 AND PERTAINS TO ASSESSMENT YEAR 2011-12 . 2. MS.H. KABILA, LD. DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT THE ASSESSEE PAID AN AMOUNT OF ` 46,74,584/- WITHOUT DEDUCTING TDS, THEREFORE, THE ASSESSING OFFICER DISALLOWED THE CLA IM OF THE ASSESSEE U/S 40(A)(IA) OF THE ACT. HOWEVER, THE CIT(A) DELE TED THE ADDITION ITA NO.331/16 :- 2 -: MADE BY THE ASSESSING OFFICER ON THE GROUND THAT TH E RECIPIENT TRANSPORTERS HAS FURNISHED THE PAN TO THE ASSESSEE , THEREFORE, IN VIEW OF SEC. 194C(6) OF THE ACT, THE ASSESSEE IS NOT RE QUIRED TO DEDUCT TAX WHILE MAKING THE PAYMENT. REFERRING TO SEC. 194C(7 ) OF THE ACT, THE LD. DR SUBMITTED THAT SEC. 194C(6) WOULD BE APPLICA BLE IN CASE THE ASSESSEE HAS FURNISHED PARTICULARS OF THE PAYMENT A ND RECIPIENTS IN SUCH FORM WITHIN SUCH TIME AS MAYBE PRESCRIBED. SI NCE THE ASSESSEE HAS NOT FURNISHED THE PARTICULARS AS REQUIRED U/S 194C(7) OF THE ACT, THE PROVISIONS OF SEC. 194C(6) WOULD NOT BE APPLIC ABLE. 3. ON THE CONTRARY, SHRI RAGHUNATHAN, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO DOUBT THE ASSESSEE WAS EXPECTED TO FURNISH THE PARTICULARS IN SUCH FORM AND WITHIN SUC H TIME AS MAY BE PRESCRIBED. IN THIS CASE, NO FORM WAS PRESCRIBED A ND TIME LIMIT WAS ALSO NOT PRESCRIBED. REFERRING TO THE DECISION OF THE HYDERABAD BENCH OF THIS TRIBUNAL IN ACIT VS MR. MOHAMMED SUHAIL, I. T.A.NO. 1356/HYD/2014, DATED 13.2.2015, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL FOUND THAT THE NOTIFICA TION PRESCRIBING THE FORM AND THE TIME LIMIT WAS ISSUED ONLY ON 15.10.20 10, THEREFORE, THE TRIBUNAL FOUND THAT THE ASSESSEE NEED NOT GIVE THE PARTICULARS FOR ASSESSMENT YEAR 2010-11. IN THE CASE BEFORE US, TH E ASSESSMENT YEAR IS 2011-12 AND FINANCIAL YEAR 2010-11. THEREFORE, IN RESPECT OF THE PAYMENT MADE UPTO 15.10.2010, THE FORM IS NOT AVAIL ABLE AND THE TIME ITA NO.331/16 :- 3 -: LIMIT IS ALSO NOT PRESCRIBED, HENCE, THE ASSESSEE IS NOT EXPECTED TO FURNISH THE INFORMATION AS REQUIRED. THEREFORE, TH E PAYMENT MADE UPTO 15.10.2010 CANNOT BE DISALLOWED FOR FAILURE OF THE ASSESSEE TO DEDUCT TAX. HOWEVER, THE PAYMENT MADE ON AND FROM 16.10.2010 CAN ONLY BE DISALLOWED IF AT ALL THE DISALLOWANCE HAS T O BE SUSTAINED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR, SE C. 194C(6) PROVIDES FOR NON-DEDUCTION OF TAX AT THE TIME OF PAYMENT OR CREDIT IN CASE THE RECIPIENT OR THE TRANSPORTER FURNISHES A DECLARATIO N ALONGWITH HIS PAN. THE ASSESSEE IS ALSO REQUIRED TO FURNISH THE PARTI CULARS AS REQUIRED U/S 194C(7) OF THE ACT IN SUCH FORM WITHIN SUCH TIM E AS MAY BE PRESCRIBED. IT IS NOT IN DISPUTE THAT THE FORM IS NOT PRESCRIBED AND THE CBDT HAS ISSUED NOTIFICATION ONLY ON 15.10.2010. T HEREFORE, AS RIGHTLY SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AT T HE BEST, THE PAYMENT MADE ON AND FROM 16.10.2010 CAN BE DISALLOW ED FOR FAILURE OF THE ASSESSEE TO FURNISH THE PARTICULARS. AS FAR A S THE PAYMENT MADE UPTO 15.10.2010 IS CONCERNED, THERE CANNOT BE ANY D ISALLOWANCE SINCE THE FORM AND TIME LIMIT WAS NOT PRESCRIBED BY THE C BDT. ACCORDINGLY, THE ORDER OF THE CIT(A) IS MODIFIED AND THE ASSESSI NG OFFICER IS DIRECTED TO VERIFY AND DISALLOW ONLY THE PAYMENT MA DE ON AND FROM ITA NO.331/16 :- 4 -: 16.10.2010. HOWEVER, IN RESPECT OF THE PAYMENT MAD E UPTO 15.10.2016, THERE CANNOT BE ANY DISALLOWANCE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MAY, 2016, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 19 TH MAY, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF