PSLR Engineers Pvt. Ltd., Greater Noida V. ITO, New Delhi

ITA 4412/DEL/2010

• Counselvise Citation: 441220114 RSA 2010
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 23-10-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 01-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: TAPAS RAM MISRA
• Keywords: Additional evidence
• Section: 194C

Judgement Text

ITA NO.4412/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE VICE PRESIDENT AND SHRI A.D. JAIN, JUDICIAL MEMBER ITA NO.4412/DEL/2010 ASSESSMENT YEAR : 2007-08 PSLR ENGINEERS PVT. LTD., B-74, BUILDERS AREA, MITRA SOCIETY, GREATER NOIDA. PAN : AADCP2324G VS. ITO, WARD 14 (1), NEW DELHI. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI TAPAS RAM MISRA, ADVOCATE DEPARTMENT BY : MS Y. KAKKAR, SR. DR ORDER PER A.D. JAIN, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2007-08 AGAINST THE ORDER DATED 20.07.2010, PASSED BY THE CIT (A)-XVII, N EW DELHI, TAKING THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE IMPUGNED EX PARTE ORDER OF THE CIT (A) IS VAGUE, BASE D ON INCORRECT APPRECIATION OF FACTS, PASSED IN UNDUE HASTE WITHOUT AF FORDING ADEQUATE AND PROPER OPPORTUNITY OF HEARING, HAD IN LAW , AND VOID AB INITIO. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CIT (A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE DISA LLOWANCE OF ITA NO.4412/DEL/2010 2 RS.49,88,608/- ON ACCOUNT OF ALLEGED FAILURE TO DEDUC T TAX ON THE PAYMENT OF RS.48,38,330/- MADE TO SUB-CONTRACTOR AND RS .1,50,278/- FOR JOB WORK. 2.1 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT (A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT TH E ASSESSING OFFICER HAD ASSUMED RS.48,38,330/- TO BE THE PAYMENT M ADE TO SUB CONTRACTORS WITHOUT TDS WITHOUT ANY BASIS WHATSOEVER. 2.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT (A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE TAX AUDIT REPORT DID NOT RECORD OR RECOMMEND ANY DISALLOWANCE U /S 40 (A) (IA). 2.3 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT (A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT TH ERE WAS NOTHING ON RECORD THAT COULD JUSTIFY DISALLOWANCE OF RS.1,50,2 78 TO JOB WORKERS AND THAT THE ASSESSING OFFICER HAD BROUGHT NOTHING ON RE CORD TO SUGGEST THAT ANY TAX WAS DEDUCTIBLE (AND NOT DEDUCTED) FRO M THE SAME. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CIT (A) ERRED ON FACTS AND IN LAW IN TAKING INTO ACCOUNT TH E GROUNDS OF APPEAL WRONGLY FILED BY THE APPELLANTS CHARTERED ACCO UNTANT AND NOT AFFORDING THE APPELLANT AN OPPORTUNITY TO SUBMIT RECTIFIE D GROUNDS OF APPEAL. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CIT (A) ERRED ON FACTS AND IN LAW IN COMPLETELY IGNORING THE WRITTEN SUBMISSION FILED BY THE APPELLANTS REPRESENTATIVE, EV EN THOUGH THE SAME WAS REPRODUCED IN THE IMPUGNED ORDER. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CIT (A) ERRED ON FACTS AND IN LAW IN CONFRONTING THE APPEL LANT WITH THE GROUNDS AS REPRODUCED IN THE IMPUGNED ORDER EVEN THOU GH THE SAME PRIMA FACIE DIFFERED WITH THE APPELLANTS STATEMENT OF FA CTS AND THE REPLY SUBMITTED BY THE APPELLANTS REPRESENTATIVE. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE CIT (A) ERRED ON FACTS AND IN LAW IN NOT ACCEPTING THE AP PELLANTS CONTENTION THAT THE CONTRACTEE HAVING PAID SUBCONTRACTORS D IRECTLY, THE APPELLANT WAS NOT RESPONSIBLE UNDER SECTION 194C OF THE ACT FOR DEDUCTION OF TAX. 2. THE ASSESSEE HAS FILED AN APPLICATION FOR ADDITIONAL EVIDENCE, CONTENDING THEREIN, INTER ALIA, THAT: ITA NO.4412/DEL/2010 3 DURING THE YEAR THE APPLICANT HAS EXECUTED A PROJECT FOR CONSTRUCTION OF EFFLUENT TREATMENT PLANT FOR MEAT PRODUCTS INDIA LTD. , KERALA (A GOVT. OF KERALA UNDERTAKING). THE SAID CONTRACTEE HAD MADE D IRECT PAYMENTS TO THE SUB-CONTRACTORS AS PER ADVICE OF THEIR CONSULTANTS . THE APPLICANT, NOT BEING THE PERSON MAKING PAYMENT TO SUB-CO NTRACTORS, CONSEQUENTLY HAD NO LIABILITY TO DEDUCT TAX AT SOURCE AS THE SAME LAY WITH THE CONTRACTEE WHO MADE PAYMENTS. THE SAME FACTS WERE EXPLAINED TO THE ASSESSING OFFICER BUT THE ASSESSING OFFICER DID NOT APPRECIATE THE FACTS AND CIRC UMSTANCES AND MADE A DISALLOWANCE OF RS.48,38,330/- UNDER SECTION 40(A)(IA) OF THE ACT. THIS SUM INCLUDED RS.22,98,330/- PAYABLE TOWARDS PURCHASE OF MATERIAL ON WHICH TAX WAS NOT REQUIRED TO BE DEDUCTED. IN ADDITION, SOME DISALLOWANCE WAS MADE UNDER SECTION 40A (3) OF THE ACT, TOO. AGAINST THE ASSESSMENT ORDER THE ASSESSEE APPEALED BEF ORE CIT (APPEALS). UNFORTUNATELY, UNKNOWN TO THE ASSESSEE, ITS A UTHORISED REPRESENTATIVE FAILED TO APPEAR BEFORE THE CIT (APPEAL S) ON THE APPOINTED DATE AND THAT CAUSED THE CIT (APPEALS) TO DISMI SS THE APPEAL EX-PARTE WITHOUT TAKING INTO ACCOUNT PERTINENT FACTS OF THE CASE. AT THE TIME OF FILING AN APPEAL BEFORE THE HONBLE TRIB UNAL, THE APPELLANT, ACTING UNDER ADVICE OF ITS COUNSEL, SOUGHT D ETAILS AND CONFIRMATION FROM THE CONTRACTEE (M/S MEAT PRODUCTS INDI A LIMITED) ABOUT DIRECT PAYMENT TO SUB-CONTRACTORS AND ALSO INVOICE S AND CONFIRMATIONS FOR PAYMENT MADE FOR PURCHASE OF MATERIA LS. 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ASSESSE E, IN FACT, DID NOT GET ANY EFFECTIVE OPPORTUNITY BEFORE THE LD . CIT (A), SINCE ITS AUTHORIZED REPRESENTATIVE DID NOT PUT IN APPEARANCE BEFORE THE LD. CIT (A), FOR WHICH REASON THE LD. CIT (A) DISMISSED THE ASSESSEES AP PEAL EX PARTE. IT HAS BEEN SUBMITTED THAT ACCORDINGLY, THE MATTER BE RE MITTED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION ON TAKING INTO CONSIDERATION THE ADDITIONAL EVIDENCE NOW FILED. 4. AS OPPOSED TO THIS, THE LD. DR HAS CONTENDED THAT B EFORE THE LD. CIT (A) THE ASSESSEE WAS GUIDED BY AN AUDITOR AND NOT ONE, BUT MANY OPPORTUNITIES WERE PROVIDED BY THE LD. CIT (A) TO TH E ASSESSEE, AS IS EVIDENT FROM THE IMPUGNED ORDER; HOWEVER, THE ASSESSEE FAILED T O DO THE NEEDFUL ITA NO.4412/DEL/2010 4 BEFORE THE LD. CIT (A); AND THAT THEREFORE, THE ASSESSE ES APPEAL NEEDS TO BE DISMISSED. 5. HAVING CONSIDERED THE MATTER, WE FIND THAT THE AP PEAL OF THE ASSESSEE WAS DECIDED BY THE LD. CIT (A) EX PARTE QUA THE ASSESSEE . THIS, ACCORDING TO THE ASSESSEES APPLICATION FOR ADDITIONAL EVIDENCE, HAPP ENED SINCE THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE FAILED TO PUT IN APPEARANCE BEFORE THE LD. CIT (A). FROM THIS, IT IS EVIDENT THAT THE A SSESSEE WAS NOT ABLE TO AVAIL PROPER OPPORTUNITY BEFORE THE LD. CIT (A) TO REPRESE NT THE MATTER. IN OUR CONSIDERED OPINION, IT WOULD BE IN THE FITNESS OF THIN GS, SINCE THE ASSESSEE HAS NOW FILED ADDITIONAL EVIDENCE BEFORE US, THAT THE MATTER MAY BE REMITTED TO THE LD. CIT (A) TO BE DECIDED AFRESH IN ACCORDANC E WITH THE LAW ON MERIT, ON AFFORDING DUE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL COOPERATE IN THE PROCEEDINGS BE FORE THE LD. CIT (A). ORDERED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED A S ALLOWED FOR STATISTICAL PURPOSES. 7. THE ORDER PRONOUNCED IN THE OPEN COURT ON 05.12. 2013. SD/- SD/- [ G.D. AGRAWAL ] [A.D. JAIN] VICE PRESIDENT JUDICIAL MEMBER DATED, 05 TH DECEMBER, 2013. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.