HASMUKH B SALIA, THANE V. ITO 2(1), THANE

ITA 5005/MUM/2013

• Counselvise Citation: 500519914 RSA 2013
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 02-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOPAK KUMAR
• Assessee Lawyers: SAMEER G DALAL
• Section: 273B

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 5 005 / MUM/ 20 1 3 ( ASSESSME NT YEAR : 200 7 - 08 ) SHRI HASMUKH B SALIA, SHANKAR SHETH BAUG, GODBUNDER, VIA - MIRA DISTRICT THANE. VS. ITO WARD - 2 (1), THANE PAN/GIR NO. : A KYPS 7071 B ( APPELLANT ) .. ( RESPONDENT ) /AS SESSEE BY : SHRI SAMEER G. DALAL /REVENUE BY : SHRI ROOPAK KUMAR DATE OF HEARING : 21 ST AUGUST , 201 3 DATE OF PRONOUNCEMENT : 28 TH AUGUST , 2013 O R D E R TH E ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE ORDER OF LEANED CIT(A) RELA TING TO THE ASSESSMENT YEAR 200 7 - 08 . 2 . THE ASSESSEE IS OBJECTING IN CONFIRMING THE ADDITION OF RS. 2,08,450/ - UNDER SECTION 40 ( A ) (I A ) OF THE ACT AS NO TDS WAS DEDUCTED ON THE AMOU NT OF INTEREST PAID/PAYABLE BY THE ASSESSEE. ITA NO. 5 005 /20 1 3 2 3 . DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAS PAID INTEREST AT RS. 2,08,450/ - TO CERTAIN PARTIES, HOWEVER, THE TDS HAS NOT BEEN DEDUCTED. THEREFORE, HE MADE THE ADDITION OF THE SAME AM OUNT UNDER SECTION 40(A)(IA) OF THE ACT. 4. BEFORE THE CIT(A) , I T WAS SUBMITTED THAT THE ASSESSEE HAS FURNISHED FORM NO. 15G OBTAINED FROM THE RESPECT CREDITORS, THEREFORE, HE WAS NOT SUPPOSED TO DEDUCT THE TDS. ACCORDINGLY, THE ADDITION MADE BY THE AO WAS NOT JUSTIFIED. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSION FOUND THAT THE FORM 15G WAS FILED BEFORE THE AO BUT THE SAME WAS NOT FILED WITH THE CHIEF COMMISSIONER OR THE COMMISSIONER. THEREFORE, NO ADVANTAGE CAN BE GIVEN IN RESPECT OF FILING OF FOR M 15G. ACCORDINGLY, HE CONFIRMED THE ORDER OF THE AO. 5 . AFTER CONSIDERING THE ORDER OF THE AO AND CIT(A) , I FOUND THAT THE ASSESSEE DESERVES TO SUCCEED ON THE ISSUE INVOLVED. THERE IS NO DISPUTE THAT FORM 15 G W ERE FILED, WHICH WERE OBTAINED FROM VARIOUS CREDITORS AND, THEREFORE, THE LIABILITY OF DEDUCTING TDS WAS NOT OF THE ASSESSEE. VARIOUS BENCHES HAVE HELD THAT IF FORM 15G HAS BEEN FILED, THEN THERE WAS NO REQUIREMENT TO DEDUCT TDS. SOME OF THE DECISIONS ARE REPORTED IN 181 TAXMAN 71(SC), 11 TAXMAN.COM 342 (MUM) , 60 ITD 177 (DEL.) AND VARIOUS OTHERS . SIMILAR ISSUE CAME BEFORE THE TRIBUNAL IN CASE OF KARWAT STEEL TRADERS VS. ITO, DECIDED IN ITA NO.6822/M/2011, VIDE ORDER DATED 10 - 7 - 2013 AND CONSIDERING VARIOUS DECISIONS, THE TRIBUNAL HELD THAT IF THE FOR M 15H WAS FILED BEFORE THE ITA NO. 5 005 /20 1 3 3 AO, THEN THERE WAS NO LIABILITY TO DEDUCT TAX AT SOURCES. THE T RIBUNAL HAS ALSO DISCUSSED THE ISSUE REGARDING FILING THE FORM 15G OR H BEFORE THE CHIEF COMMISSIONER OR COMMISSIONER , AS THE CASE MAY BE, AND HELD THAT THIS IS A TEC HNICAL FAULT AND IN VIEW OF THE SECTION 273B , NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE. SIMILAR FACTS ARE INVOLVED HERE BEFORE ME. THEREFORE, FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF KARWAT STEEL TRADERS (SUPRA) , I DELETE THE AD DITION MADE AND SUSTAINED BY THE LOWER AUTHORITIES. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF AUG .2013 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 28/08 / 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDE NT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI