The ITO, Ward-4, GANDHIDHAM V. M/s United Arab Shipping Agency Company (I) P.Ltd., GANDHIDHAM

ITA 399/RJT/2011

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0120 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 24-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Non-deduction of tax
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL: RAJKOT BENCH: RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , # # # # BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM ITA NO. 399/RJT/2011 / ASSESSMENT YEAR 2008-09 ITO, TDS-4, V. M/S. UNITED ARAB SHIPPING AGENCY GANDHIDHAM COMPANY (INDIA) PVT. LTD. OFFICE NO.303, 2 ND FLOOR SUNDAR PARK, PLOT NO.95, SECTOR-8, GANDHIDHAM - KUTCH PAN: AAACU8855G . DATE OF HEARING : 30-05-2012. DATE OF PRONOUNCEMENT : 01-08-2012 REVENUE BY: SHRI M. K. SINGH, D.R ASSESSEE BY: SHRI VIMAL DESAI, C.A. / // / ORDER . .. . . . . . /D. K. SRIVASTAVA: THE APPEAL FILED BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 18-08-2011, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) ERRED IN LAW AS WELL AS FACTS OF THE CASE IN DECLARING THE INTEREST CHARGED U/S.201(1A) OF THE I.T. ACT OF RS.5,01,160/- FOR A.Y. 2008-09 BY TREATING THE VARIOUS CONTRACT U/S.194C O F THE ACT AS AGAINST U/S.194I OF THE ACT BY THE A.O. EVEN THOUGH AFTER S URVEY THE ASSESSEE HAD REALIZED ITS MISTAKE & PAID THE AMOUNT IN RESPECT O F DEFAULT U/S.194I OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) MAY KINDLY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EFFECT. 2. THE RESPONDENT, BEING THE PERSON RESPONSIBLE FOR DEDUCTING/PAYING THE TAX AT SOURCE IN TERMS OF CHAPTER XVII OF THE INCOME-TAX A CT, IS A PRIVATE COMPANY LIMITED BY SHARES. THE RESPONDENT-COMPANY CLAIMS TO BE AN A GENT OF VESSEL OPERATORS AND, IN THAT CAPACITY, HANDLES THEIR VESSELS/CONTAINERS AT PORTS OF GUJARAT PIPAVAV PORT LTD. AND KANDLA PORT TRUST. SURVEY WAS CARRIED OUT BY THE DEPARTMENTAL OFFICERS U/S.133A OF THE INCOME-TAX ACT AT THE PREMISES OF T HE RESPONDENT-COMPANY TO FIND 2 ITA 399/RJT/2011 OUT AS TO WHETHER IT IS DEDUCTING THE TAX AT SOURCE AND PAYING THE SAME TO THE GOVERNMENT IN ACCORDANCE WITH LAW. IT WAS FOUND THA T THE RESPONDENT WAS MAKING PAYMENTS TO KANDLA PORT TRUST AND PIPAVAV PORT LTD. FOR OBTAINING VARIOUS SERVICES FROM THEM, E.G., BERTHING, WHARFAGE, PILOTING, ANCH ORING, ETC. IT WAS FOUND THAT THE RESPONDENT HAD DEDUCTED THE TAX AT SOURCE OUT OF TH E PAYMENTS MADE BY IT TO KANDLA PORT TRUST AND PIPAVAV PORT LTD. U/S 194C FO R UTILIZING THE AFORESAID SERVICES. IT WAS ALSO FOUND THAT THE PROVISIONS OF SECTION 194C WERE NOT APPLICABLE TO THE IMPUGNED PAYMENTS AND THAT THE TAX OUGHT TO HAVE BEEN DEDUCTED AT SOURCE U/S.194I OF THE INCOME-TAX ACT BY THE RESPONDENT. T HE ASSESSING OFFICER WORKED OUT THE DEFAULT ON THE PART OF THE RESPONDENT IN MAKING DEDUCTION AS REQUIRED BY SECTION 194I OUT OF THE PAYMENTS MADE TO KANDLA PORT TRUST AND PIPAVAV PORT LTD. BY HIS ORDER DATED 30-06-2008, THE ASSESSING OFFICER DIREC TED THE RESPONDENT TO PAY INTEREST AMOUNTING TO RS.5,01,160/- U/S.201(1A) REA D WITH SEC.194I OF THE INCOME- TAX ACT, WITH THE FOLLOWING OBSERVATIONS:- 3(III) IN ITS DETAILED WRITTEN REPLY THE ASSESSEE STRONGL Y OBJECTED TO THE DEFAULT DETECTED U/S.194I AND GAVE ITS VARIOUS REAS ONS AS TO THAT THE SAME ARE COVERED UNDER THE PROVISIONS OF SECTION 194C. I T ALSO OBJECTED TO THE ISSUANCE OF SHOW CAUSE NOTICE AND GAVE VARIOUS DECI SIONS FAVOURING ITS VIEW AND ALSO QUOTED THE JUDGMENT IN THE CASE OF CIT V. RANOLI INVESTMENT PVT. LTD. & OTHERS (1999) 235 ITR 433 (GUJ) STATING THAT WHEN THE TAX IS NOT DEDUCTED AT SOURCE, IT REQUIRED TO BE PAID BY THE A SSESSEE DIRECTLY, BUT IN SUCH A CASE THE LIABILITY TO PAY INTEREST CONSEQ UENT UPON THE FAILURE TO DEDUCT THE TAX AT SOURCE WILL NONETHELESS REMAIN WITH SUCH PERSON WHO WAS DUTY BOUND TO DEDUCT, TILL THE DATE WHEN TH E TAX IS ACTUALLY PAID BY THE ASSESSEE OR ON HIS BEHALF. 4.(I) SUBSEQUENTLY THE ASSESSEE REALIZED ITS FOLLY AND CO NVEYED THAT IT IS READY TO MAKE THE DEFAULTED PAYMENT AND ACCORDINGLY IT HAS PAID THE FOLLOWING AMOUNT IN RESPECT OF DEFAULT U/S.194I. SR.NO. AMOUNT PAID (RS) DATE OF PAYMENT. 1. 30164 5.3.08 2. 06 7.3.08 3. 31,15,247 7.3.08 4. 23,91,679 12.3.08 55,37,096 THE ASSESSEE HAS FURTHER VIDE ITS LETTER DATE 17.3. 2008 HAS SUPPLIED THE COPIES OF THE CHALLAN AND RECONCILIATION OF PAYMENT . 4.(II) THOUGH THE ASSESSEE HAS PAID THE DEFAULTED AMOUNT O F TDS HOWEVER THE INTEREST IS REQUIRED TO BE CHARGED U/S.201(1A) FOR THE DEFAULTED AMOUNT IT FAILED TO PAY IN THE GOVERNMENT ACCOUNT WITHIN THE STIPULATED TIME PERIOD. FURTHER IN THE PRESENT CASE AT THE TIME OF SURVEY A CONSOLIDATED ACCOUNT OF CHARGES PAID TO KPT AND CHARGES PAID TO PIPAVAV WERE FURNISHED AND AT 3 ITA 399/RJT/2011 THAT POINT OF TIME THE BIFURCATION WAS NOT MADE, TH E SAME COULD NOT BE INCORPORATED IN THE SHOW CAUSE NOTICE DATE 6.11.200 7 AND THEREFORE THE TOTAL AMOUNT REPRESENTING THE PAYMENTS MADE TO BOTH THESE PORTED WAS MENTIONED. HOWEVER THE ACTUAL BIFURCATION OF EXPEN DITURE UNDER VARIOUS HEADS HAS BEEN MADE ONLY AT THE TIME OF MAKING SUBM ISSION AND THEREFORE THE RATES / AMOUNTS AND SECTION OF DEFAULT MENTIONE D AT THE TIME OF SHOW CAUSE NOTICE STANDS CORRECTED TO THE EXTENT IN THE COMPUTATION OF TAX /INTEREST PART WHILE PASSING OF THIS ORDER. 4.(III) SINCE, THE ASSESSEE HAS FAILED TO CARRY OUT ITS ST ATUTORY RESPONSIBILITY TO DEDUCT APPROPRIATE AMOUNT OF TAX AS PER PROVISIO N OF SECTION 194-I AND PAY THE SAME TO THE CENTRAL GOVT. ACCOUNT, WITHIN STIPU LATED TIME PERIOD THEREFORE INTEREST U/S.201(1A) IS CHARGED. THE CHARGING OF I NTEREST IS MANDATORY AS DECIDED IN THE CASE CITED BY THE ASSESSEE CIT VS. R ANOLI INVESTMENT PVT. LTD. & OTHERS (1999) 235 ITR 433 (GUJ) AND ALSO AS DECID ED BY HON. SUPREME COURT OF INDIA IN THE CASE OF HINDUSTAN COCA COLA B EVERAGES (P) LTD. V. CIT [(2007) 163 TAXMAN 355 (SC)]. THE BENEFIT OF THIS DECISION IS BEING ADVANCED TO THE ASSESSEE FOR THE SAKE OF NATURAL JU STICE ON SUO-MOTO BASIS. IN THE CASE OF GPPL THE ASSESSEE HAS PRODUCED EVIDE NCE OF FILING OF RETURN AND IN THE CASE OF KPT DURING THE COURSE OF PROCEEDING IN SOME OTHER CASE THE EVIDENCE OF FILING OF RETURN HAS BEEN MADE AVAILABLE AND ACCORDINGLY THE INTEREST U/S.201(1A) IS ONLY CHARGED. THE COMP UTATION OF INTEREST IS MADE ON SUBSEQUENT PAGES. 3. ON APPEAL, THE LD. CIT(A) HAS DECIDED THE ISSUE UNDER APPEAL IN FAVOUR OF THE RESPONDENT WITH THE FOLLOWING OBSERVATIONS:- 3.2 INTEREST UNDER SECTION 201(1A) WAS LEVIED BY T HE AO ON THE GROUND THAT TAX SHOULD HAVE BEEN DEDUCTED UNDER SECTION 19 4I (INSTEAD OF U/S.194C) ON THE PAYMENTS MADE TO KANDLA PORT TRUST AND GUJAR AT PIPAVAV PORT LIMITED; THE SHORT DEDUCTION OF TDS WAS MADE GOOD L ATER BY THE APPELLANT; AND INTEREST UNDER SECTION 201(1A) WAS LEVIABLE FOR THE DEFAULT OF DELAY IN THE DEDUCTION AND REMITTANCE. THE CONTENTIONS OF THE L EARNED AR IN BRIEF ARE THAT BOTH THE PORTS HAD CLAIMED REFUNDS ON ACCOUNT OF TD S AND ADVANCE TAX PAID (EVEN AFTER EXCLUDING THE TDS MADE BY THE APPELLANT ); GUJARAT PIPAVAV PORT LIMITED MADE LOSS; SINCE THERE WAS NO LOSS TO THE G OVERNMENT, NO INTEREST WAS LEVIABLE TO COMPENSATE THE LOSS AND IN SUPPORT THEREOF HE RELIED ON THE CASE LAWS CITED AT 287 ITR 354(RAJASTHAN); 116 TTJ 904 (JODHPUR) AND 253 ITR 310(GUJARAT). 3.3. THE CONTENTIONS OF THE LEARNED AR ARE TENABLE. AS SEEN FROM THE COPY OF RETURN OF INCOME FILED BY THE GUJARAT PIPAVAV PO RT LTD. FOR A.Y. 2008-09, LOSS OF OVER RS.208 CRORES WAS ADMITTED AND THE ENT IRE TDS OF RS.5,34,98,061/- WAS CLAIMED AS REFUND. SIMILARLY, KANDLA PORT TRUST, IN THE 4 ITA 399/RJT/2011 RETURN OF INCOME FILED FOR A.Y. 2008-09, ADMITTED T OTAL INCOME AT NIL AND CLAIMED RETURN OF THE ENTIRE AMOUNT OF ADVANCE TAX AND TDS OF RS.83,09,66,060/-. KEEPING IN VIEW THESE FACTS AND IN THE LIGHT OF THE CASE LAW RELIED ON BY THE LEARNED AR, THE CONTENTION (TH AT SINCE THERE WAS NO LOSS TO THE STATE EXCHEQUER, LEVYING INTEREST TO COMPENS ATE THE LOSS WAS UNWARRANTED) IS TENABLE. THE LEVY OF INTEREST IS CA NCELLED. 4. AGGRIEVED BY THE ORDER PASSED BY THE CIT(A), THE DEPARTMENT IS NOW IN APPEAL BEFORE THIS TRIBUNAL. IN SUPPORT OF APPEAL, THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER PASSED BY THE AO . 5. IN REPLY, THE LD. AUTHORIZED REPRESENTATIVE FOR THE RESPONDENT SUPPORTED THE ORDER PASSED BY THE CIT(A). HE HAS RELIED UPON THE WRITTEN SUBMISSIONS FIELD BY HIM BEFORE THE CIT(A) WHICH READS AS UNDER:- 1. THERE WAS A SURVEY ON 10-10-2007. 2. IN PURSUANCE OF THE SURVEY, THE DEPARTMENT TOOK THE VIEW THAT THE BERTH HIRE CHARGES AND WHARFAGE PAID BY THE APPELLA NT TO GUJARAT PIPAVAV PORT LIMITED (GPPL) AND KANDLA PORT TRUST (KPT) WER E FALLING UNDER SECTION 194I AS AGAINST 194C CONSIDERED BY THE APPELLANT. 3. THE APPELLANT FILED DETAILED REPLY PROTESTING TH E STAND OF THE DEPARTMENT. SINCE THE WHARFAGE / BERTH HIRE ARE NO T COVERED U/S.194I, THERE IS NO QUESTION OF CHARGING INTEREST U/S.201(1A) WHI CH IS BASED ON THE STAND THAT THE IMPUGNED PAYMENTS ARE COVERED U/S.194I. 4. HOWEVER, THE PORT USERS WERE FACING PROBLEMS IN USAGE OF PORT SERVICES DUE TO ABOVE STAND OF THE DEPARTMENT. HEN CE, AN AMICABLE SOLUTION WAS WORKED OUT AS PER WHICH THE APPELLANT TO BOTH G PPL AND KPT. BOTH THE PORT ALSO AGREED FOR THIS SOLUTION TO AVOID ANY HAR DSHIP TO THE PORT USERS. 5. THE A.O. ALSO CHARGED INTEREST U/S.201 (1A) OF R S.5,01,160/- AS PER COMPUTATION FORMING PART OF THE ORDER. THE SAME IS CHALLENGED BY THE APPELLANT IN PRESENT APPEAL. 6. AT FIRST, IT IS SUBMITTED THAT THE A.O. FAILED T O APPRECIATE THAT BOTH GPPL AND KPT WERE HAVING CLAIM OF REFUNDS ON ACCOUN T OF TDS AND ADVANCE TAX PAID BY THEM IF TDS MADE BY THE APPELLA NT IS EXCLUDED. FURTHER. GPPL WAS REPORTING NET LESS. COPIES OF RETURN OF I NCOME OF THE BOTH THE PORTS WERE AVAILABLE WITH THE A.O. 7. IT IS A SETTLED PRINCIPLE OF LAW THAT INTEREST U NDER THE DIRECT TAXES IS A COMPENSATORY CHARGE. HENCE, IT SHOULD BE CHARGED O NLY WHEN THERE IS A LOSS TO THE GOVERNMENT EXCHEQUER AND TO THE EXTENT OF SU CH LOSS. SUCH 5 ITA 399/RJT/2011 COMPENSATORY INTEREST CAN NOT BE LEVIED WHERE THERE IS NO LOSS TO THE GOVERNMENT EXCHEQUER. 8. THE RAJASTHAN HIGH COURT HAS HELD IN CASE OF RAJ ASTHAN RAJYA VIDYUT PRASARAN NIGAM LTD. (287 ITR 354) THAT WHEN THE PAY EE IS ENTITLED TO A REFUND AFTER CONSIDERING THE TDS FROM THE PAYER, NO INTEREST U/S.201 (1A) CAN BE DEMANDED FROM THE PRAYER. THIS JUDGMENT FULLY A PPLIES TO THE CASE OF GPPL AND KPT AS BOTH THE PORTS ARE ELIGIBLE FOR A R EFUND AFTER TDS AND ADVANCE TAX. 9. THE ABOVE JUDGMENT HAS BEEN FOLLOWED BY THE RAJK OT ITAT ALSO IN ONE RECENT CASE. 10. FURTHER, JODHPUR ITAT HAS ALSO HELD IN CASE OF EMARALD CONSTRUCTION CO. (P) LTD. (116 TTJ 904) THAT IN CASE NO TAX IS P AYABLE BY THE PAYEE, NO INTEREST U/S.201 (1A) CAN BE CHARGED FROM THE PAYER . IN CASE OF LOSS OR REFUND DUE TO THE PAYEE, NO LOSS OCCURS TO THE GOVE RNMENT AND HENCE NO INTEREST U/S.201 (1A) CAN BE CHARGED FROM THE PAYER . WHEN TAX WHICH WAS TO BE DEDUCTED U/S. 201 WAS NOT PAYABLE AT ALL BY THE PAYEE, IT WOULD BE UNJUST TO CONCLUDE THAT, IN ALL EVENTUALITIES, INTEREST U/ S. 201(1A) IS TO BE CHARGED FROM THE DEDUCTOR. THIS DECISION FULLY APPLIES TO BOTH GPPL AND KPT AS GPPL HAD A LOSS AND BOTH HAD REFUNDS DUE. 11. THE HONBLE GUJARAT HC HAS ALSO HELD IN CASE OF RISHIKESH APARTMENT CO-OPERATIVE HOUSING SOCIETY (253 ITR 310) THAT WHE N THE PAYEES HAVE PAID ADVANCE TAX ON DUE DATES, NO INTEREST U/S. 201 (1A) CAN BE DEMANDED FROM THE PAYER. THIS WILL APPLY TO THE CASE OF KPT AS KP Y HAS PAID THE ADVANCE TAX. SAME VIEW HAS BEEN TAKEN BANGALORE ITAT IN CAS E OF WIPRO FINANCE LTD. (81 TTJ 887). THE LEVY OF INTEREST U/S. 201 (1A) NEED TO BE CANCE LLED IN VIEW OF THE ABOVE SUBMISSIONS. 6. WE HAVE HEARD BOTH THE PARTIES. IT IS NOT IN DIS PUTE THAT THE PAYMENTS WERE MADE BY THE RESPONDENT-COMPANY TO KANDLA PORT TRUST AND PIPAVAV PORT LTD. DURING THE YEAR UNDER APPEAL OUT OF WHICH THE ASSES SEE WAS REQUIRED TO DEDUCT THE TAX AT SOURCE. THE RESPONDENT HOWEVER DEDUCTED THE TAX AT SOURCE U/S.194C TREATING THE IMPUGNED PAYMENTS AS THOSE MADE TO CON TRACTEES. THE RESPONDENT- COMPANY SUBSEQUENTLY REALIZED ITS MISTAKE IN DEDUCT ING THE TAX AT SOURCE U/S 194C INSTEAD OF DEDUCTING THE SAME U/S.194I OUT OF THE A FORESAID PAYMENTS AND THEREFORE RECTIFIED THE MISTAKE AND CONSEQUENTLY DEDUCTED THE AMOUNT OF TAX IN TERMS OF SECTION 194I AND PAID THE SAME TO THE GOVERNMENT. T HUS, THE APPLICABILITY OF THE PROVISIONS OF SEC.194I TO THE CASE OF THE RESPONDEN T IS NOT IN DISPUTE. IT IS ALSO NOTE IN DISPUTE THAT THE TAX WAS NEITHER DEDUCTED AT SOU RCE NOR PAID BY THE RESPONDENT 6 ITA 399/RJT/2011 BEFORE THE DUE DATE AS REQUIRED BY SECTION 194I OF THE INCOME-TAX ACT. THERE IS THUS DELAY IN DEDUCTION OF TAX AT SOURCE IN CONFORMITY W ITH SECTION 194I AND ALSO IN PAYMENT THEREOF. IT IS FOR THIS DELAYED DEDUCTION/P AYMENT THAT THE A.O. HAS CHARGED IMPUGNED INTEREST. 7. THE RESPONDENT-COMPANY RESISTS LEVY OF INTEREST. ITS CASE IS TWOFOLD. ONE, BOTH THE PARTIES, NAMELY; KANDLA PORT TRUST AND PIP AVAV PORT LTD. WERE ENTITLED TO REFUND ON ACCOUNT OF TDS AND ADVANCE TAX PAID BY TH EM AS THEIR INCOME WAS NOT LIABLE TO TAX AND THEREFORE THERE WAS NO LOSS TO TH E REVENUE BY NON-DEDUCTION OF TAX AT SOURCE U/S 194I BY THE RESPONDENT-COMPANY OUT OF THE PAYMENTS MADE BY IT TO THE AFORESAID PARTIES. TWO, IN CIT V. RAJASTHAN RAJ YA VIDYUT PRASARAN NIGAM LTD., 287 ITR 354, IT HAS BEEN HELD THAT INTEREST UNDER S ECTION 201(1A) CANNOT BE CHARGED WHEN THE PAYEE IS ENTITLED TO REFUND. RELIA NCE HAS ALSO BEEN PLACED ON THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN RISHI KESH APARTMENTS CO-OPERATIVE HOUSING SOCIETY LTD., 253 ITR 310 AND THE DECISION OF THIS TRIBUNAL IN RAJKOT MUNICIPAL CORPORATION V. ITO ITA NO.11/RJT/2010 AND ITO V. EMRALD CONSTRUCTION CO.(P) LTD. 10DTR 133. THE ASSESSING OFFICER, ON TH E OTHER HAND, HAS RELIED UPON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN CIT V. RANOLI INVESTMENT P. LTD & OTHERS, 235 ITR 433. 8. IN HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT, 293 ITR 226 (SC), THE HONBLE SUPREME COURT HAS HELD AS UNDER: BE THAT AS IT MAY, CIRCULAR NO. 275/201/95-IT(B) D ATED JANUARY 29, 1997, ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, IN OUR CONSIDERED OPINION SHOULD PUT AN END TO THE CONTROVERSY. THE CIRCULAR DECLARE S NO DEMAND VISUALISED U/S.201(1) OF THE INCOME-TAX ACT SHOULD BE ENFORCED AFTER THE TAX DEDUCTOR HAS SATISFIED THE OFFICER-IN-CHARGE OF TDS, THAT TA XES DUE HAVE BEEN PAID BY THE DEDUCTEE-ASSESSEE. HOWEVER, THIS WILL NOT ALTER THE LIABILITY TO CHARGE INTEREST U/S.201(1A) OF THE ACT TILL THE DATE OF PA YMENT OF TAXES BY THE DEDUCTEE-ASSESSEE OR THE LIABILITY FOR PENALTY U/S. 271C, OF THE INCOME-TAX ACT. IN THE INSTANT CASE, THE APPELLANT HAD PAID THE INT EREST U/S 201(1A) OF THE ACT AND THERE IS NO DISPUTE THAT THE TAX DUE HAD BE EN PAID BY THE DEDUCTEE- ASSESSEE (M/S. PRADEEP OIL CORPORATION). IT IS NOT DISPUTED BEFORE US THAT THE CIRCULAR IS APPLICABLE TO THE FACTS OF THE SITUATIO N ON HAND. 9. NEITHER THE AO NOR THE CIT(A) HAS EXAMINED THE I SSUE UNDER APPEAL IN THE LIGHT OF THE AFORESAID JUDGMENT INCLUDING THE CIRCU LAR ISSUED BY THE CBDT AS REFERRED TO IN THE AFORESAID JUDGMENT. NONE OF THE PARTIES REFERRED TO THE AFORESAID JUDGMENT AT THE TIME OF HEARING EVEN BEFORE US. HOW EVER THE BINDING EFFECT OF LAW DECLARED BY THE HONBLE SUPREME COURT DOES NOT CEAS E TO BE BINDING ONLY BECAUSE 7 ITA 399/RJT/2011 IT HAS NOT BEEN REFERRED TO BY THE PARTIES AT THE T IME OF HEARING. IN OUR CONSIDERED VIEW, THE ISSUE NEEDS FRESH EXAMINATION IN THE LIGH T OF THE AFORESAID JUDGMENT. IN THIS VIEW OF THE MATTER, THE ISSUE UNDER APPEAL IS RESTORED TO THE FILE OF THE CIT(A) FOR A FRESH EXAMINATION AND DECISION IN CONFORMITY WITH LAW AFTER BRINGING RELEVANT FACTS ON RECORD AND AFTER GIVING REASONABLE OPPORTUNITY O F HEARING TO BOTH THE PARTIES. THE APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED F OR STATISTICAL PURPOSES. ) + 01-08-2012 ) ORDER PRONOUNCED ON 01-08-2012 SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER +/ DATE 01-08-2012 /RAJKOT. ) )) ) ./ ./ ./ ./ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. 3 / APPELLANT-THE INCOME TAX OFFICER, TDS-4, GANDHID HAM. 2. .53 / RESPONDENT-M/S.UNITED ARAB SHIPPING AGENCY COMPA NY (INDIA) PVT. LTD. GANDHIDHAM-KUTCH. 3. 9 / CONCERNED CIT-TDS, AHMEDABAD.. 4. 9- / CIT (A)-XX, AHMEDABAD. 5. / ., , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR/ , / ITAT, RAJKOT 8 ITA 399/RJT/2011 1.DATE OF DICTATION : 01-06-2012. 2.DATE OF PLACING THE DRAFT. : 3.DATE OF APPROVAL OF DRAFT. : 4.DATE OF RETURN FROM JM : 5.DATE OF PRONOUNCEMENT : 6.DATE OF SENDING TO BENCH CLERK : 7.DATE OF RECEIPT BY BENCH CLERK : 8.DATE OF PLACING IT FOR ENDORSEMENT : 9.DATE OF ENDORSEMENT : 10. DATE OF DISPATCH :