VIRAG J SHAH, MUMBAI V. ITO 13(3)(2), MUMBAI

ITA 3678/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9325 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 24-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOPAK KUMAR
• Assessee Lawyers: SITHANSH RAICHURA
• Keywords: Opportunity of being heard
• Section: 194C

Judgement Text

, . . , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI .. , BEFORE SHRI R.K.GUPTA, JM ./ ITA NO.3678/MUM/2012 ( ! ! ! ! '#! '#! '#! '#! / ASSESSMENT YEAR :2008-2009) VIRAG J SHAH, 11, SAHAYOG SOC., OPP VISHAL HALL, SIR M.V.D. ROAD, ANDHERI (E), MUMBAI-400 069 VS. ITO 13(3)(2), MUMBAI $ % ./ &' ./ PAN/GIR NO. : AABPS 3855 L ( $( / APPELLANT ) .. ( )*$( / RESPONDENT ) !+, - -- - . . . . /ASSESSEE BY : MR. SITHANSH RAICHURA &' - -- - . . . . /REVENUE BY : MR. ROOPAK KUMAR ' - ,/% / DATE OF HEARING : 21 ST NOV., 2012 01# - ,/% / DATE OF PRONOUNCEMENT : 23 RD NOV.,2012 2 2 2 2 / O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 14-03- 2012 OF LEANED CIT(A)-24, MUMBAI RELATING TO THE AS SESSMENT YEAR 2008-09. 2. THE ASSESSEE IS OBJECTING DISALLOWING EXPORT FREIG HT PAYMENT OF RS.1,72,863/- UNDER SECTION 40(A)(IA) OF THE ACT AS TDS NOT DEDUCTED BY THE ASSESSEE ON THE ABOVE GROUND. 3. THE ASSESSEE CLAIMED EXPENDITURE ON ACCOUNT OF FRE IGHT PAID OF RS.1,72,863/- TO M/S R.B. INTERNATIONAL. THE ASSESS ING OFFICER NOTICED ITA NO.3678/2012 2 THAT M/S R.B. INTERNATIONAL WAS NOT AN AGENT FOR AN Y NON-RESIDENT SHIPPING COMPANY, THEREFORE, THE PROVISION OF SECTI ON 194C WERE APPLICABLE IN RESPECT OF PAYMENT OF FREIGHT TO THE ABOVE CONCERN. SINCE THE ASSESSEE HAD NOT DEDUCTED TDS ON SUCH PAYMENT, THEREFORE, THE ASSESSING OFFICER DISALLOWED THE SAME. 4 . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A ), WHO ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5 . AFTER CONSIDERING THE SUBMISSIONS AND PERUSING TH E MATERIAL ON RECORD, I FIND THAT THE MATTER SHOULD GO BACK TO TH E FILE OF THE ASSESSING OFFICER TO RE-EXAMINE THE ISSUE AFRESH. IT WAS STAT ED DURING THE APPELLATE PROCEEDINGS THAT THOUGH M/S R.B. INTERNAT IONAL IS NOT AN AGENT OF THE NON-RESIDENT SHIPPING COMPANY, BUT HE IS A SUB-AGENT AND THIS ASPECT HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER. IT WAS ALSO SUBMITTED THAT M/S R.B. INTERNATIONAL HAS OBTA INED A CERTIFICATE FROM THE ITO NOT TO DEDUCT TDS, HOWEVER, COPY OF TH E CERTIFICATE COULD NOT BE FILED BEFORE THE LOWER AUTHORITIES. THEREFOR E, IT WAS REQUESTED THAT THE MATTER CAN BE SENT BACK TO THE FILE OF THE ASSESSING OFFICER TO ALLOW A FRESH OPPORTUNITY. 6 . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF T HE CASE, I RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFF ICER TO EXAMINE THE ISSUE AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I ORDER ACCORDINGLY. ITA NO.3678/2012 3 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. + ,3 !+, - 4- 567 '8, - &, 9: ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF NOV.2012. 2 - 01# % ; < 3 23 RD NOV.,2012 1 - SD/- ( . . ) (R.K.GUPTA) / JUDICIAL MEMBER MUMBAI ; < DATED : 23 RD NOV./ 2012 . ). . /PKM , . / PS 2 2 2 2 - -- - ),= ),= ),= ),= >=#, >=#, >=#, >=#, / COPY OF THE ORDER FORWARDED TO : 1. $( / THE APPELLANT 2. )*$( / THE RESPONDENT. 3. ? ( ) / THE CIT(A)-X, MUMBAI. 4. ? / CIT 5. ='@ ), , , / DR, ITAT, MUMBAI 6. A! B / GUARD FILE. *=, ), //TRUE COPY// 2 2 2 2 / BY ORDER, 5 55 5 / 9 9 9 9 & & & & ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI