DCIUT CEN CIR 3(3), MUMBAI V. REMI METALS (GUJARAT) LTD, MUMBAI

ITA 5254/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0519 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 06-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURISHOTTAM KUMAR
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY , JM AND SHRI RAJESH KUMAR , AM ./ I.T.A. NO . 5254 /MUM/201 5 ( / ASSESSMENT YEA R : 20 0 5 - 06 ) DY.COMMISSIONER OF INCOME TAX - CENTRAL CIRCLE 3(3), ROOM NO.401, 4 TH FLOOR, AAYAKAR BHAVAN, MK ROAD, MUMBAI - 400020 / VS. M/S REMI METALS (GUJARAT) LTD, 4 TH FLOOR, WELSPUN HOUSE, KAMALA CITY, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI - 400018 ( / APPELLANT ) ( / RESPONDENT ) PAN: AA A CR2121C / APPELLANT BY : SHRI PURISHOTTAM KUMAR /R ESPONDENT BY : NONE / DATE OF HEARIN G : 7.8.2017 / DATE OF PRONOUNCEMENT : 8. 8. 2017 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL FILED BY THE REVENUE CHALLENGING THE ORDER OF LD. CIT(A) - 51 , MUMBAI, DATED 10.8. 201 5 , PERTAINS TO THE ASSESSMENT YEAR 20 0 5 - 06 , WHEREIN THE REVENUE RAISED THE ISSUE OF DELETION OF PENALTY OF RS.84,69,053/ - LEVIED UNDER SECTION 271(1)( C ) OF THE INCOME TAX ACT, 1961 . 2 I.T.A. NO. 5254 / MUM/ 201 5 2. AT THE OUTSET, WE WOULD LIKE TO MENTION HERE THAT NEITHER THE ASSESSEE N OR HIS AUTHORIZED REPRESENTATIVE APPEA RED BEFORE THIS TRIBUNAL WHEN THE APPEAL WAS CALLED FOR HEARING NOR ANY APPLICATION SEEKING ADJOURNMENT OF THE HEARING WAS RECEIVED IN THE OFFICE OF THE TRIBUNAL DESPITE SERVICE OF NOTICE THROUGH RPAD. THEREFORE, WE PROCEED TO DISPOSE OF F THE APPEAL OF THE REVENUE EX - PARTE IN ABSENCE OF ASSESSEE AFTER HEARING THE LD.DR. 3 . ASSESSMENT IN THE PRESENT CASE WAS FRAMED U/S 143(3) VIDE ORDER DATED 24.12.2007 ON A TOTAL LOSS OF RS.34,95,00,086/ - AGAINST THE TO T AL LOSS CLAIMED BY THE ASSESSEE AT RS.37,30,11,940/ - BY MAKING VARIOUS DISALLOWANCES INTERALIA THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT FOR NON DEDUCTION OF TAX AT SOURCE OF RS.2,31,43,980/ - . THE SAID DISALLOWANCE WAS MADE ON THE GROUND OF NON DEDUCTION OF TAX AT SOURCE FROM THE PAYMENTS MADE TOWAR DS THE EXPENSES CLAIMED . IN THE APPELLATE PROCEEDINGS BEFORE THE CIT(A) , THE ONLY ADDITION U/S OF RS. 2,31,43,980/ - WAS SUSTAINED WHILE OTHER WERE DELETED. THEREAFTER AFTER THE AO ISSUED NOTICE U/S 271(1) OF THE ACT AND ACCORDINGLY LEVIED THE PENALTY OF RS.84,69,053/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED BY HOLDING THAT THE ASSESSEE HAS COMMITTED DEFAULT U/S 271(1)(C ) OF THE ACT FOR CONCEAL MENT OF THE INCOME. IN THE APPELLATE PROCEEDINGS, THE LD.CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE AFTER F OLLOWING THE RATIO LAID DOWN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RUSHI BUILDERS AND DEVELOPERS IN ITA NO.6684/MUM/2012 FOR THE 3 I.T.A. NO. 5254 / MUM/ 201 5 ASSESSMENT YEAR 2007 - 08, DATED 4.3.2014 AND THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S AT&T COMMUNICATION SERVICES INDIA (P) LTD(342 ITR 257) (DELHI) . 4. WE HAVE CAREFULLY CONSIDERED THE CONTENTIONS OF THE LD. DR AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE IMPUGNED ORDER . THE U NDISPUTED FACTS OF THE CASE ARE THAT T HE ADDITION/DISALLOWANCE W AS MADE IN THE ASSESSMENT PROCEEDINGS FOR NON DEDUCTION OF TDS WHICH WAS SUSTAINED BY THE CIT(A). I N OUR OPINION DISALLOWANCE/ADDITION RESULTING FROM NON DEDUCTION OF TDS U/S 40(A)(IA) OF THE ACT IS NEITHER CONCEALMENT OF INCO ME N OR FURNISHING INACCURATE PARTICULARS OF INCOME . IN OUR VIEW, THE LD.CIT(A) HAS RIGHTLY DELETED THE PENALTY BY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RUSHI BUILDERS AND DEVELOPERS (SUPRA) AND THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF AT&T COMMUNICATION SERVICES INDIA (P) LTD (SUPRA) . IN BOTH THE CASES, IT HAS BEEN HELD THAT U/S 40(A)(IA) OF THE ACT FOR NON DEDUCTION OF TAX AT SOURCE WOULD NO T BE CONCEALMENT OR FURNISHING OF INACCURATE INCOME AND DISALLOWANCE WAS ONLY ATTRACTED DUE TO NON - DEDUCTION OF TDS. THEREFORE WE DO NOT FIND NAY INFIRMITY IN THE ORDER OF CIT(A) AND UPHOLD THE SAME BY DISMISSING THE APPEAL OF THE REVENUE. ACCORDINGLY, WE DISMISS THE APPEAL OF THE REVENUE. 4 I.T.A. NO. 5254 / MUM/ 201 5 5 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUG , 2017 SD SD ( SAKTIJIT DEY ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 8. 8. 2017 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT . REGISTRAR) , / ITAT, MUMBAI