The ITO, Ward-9(4), Ahmedabad V. M/s. B.R. Joshi Roadlines, Ahmedabad

ITA 60/AHD/2013

• Counselvise Citation: 6020514 RSA 2013
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 07-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Assessee Lawyers: P B SHAH
• Keywords: Condonation of delay
• Section: 194C; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 60 & CO 157/AHD/2013 A.Y: 2008-09 ITO, WARD 9 (4), AHMEDABAD. VS M/S B. R. JOSHI ROAD LINES, 308, SHANTI TOWER, NEAR TULSI PARTY PLOT, VASNA BUS STOP, VASNA, AHMEDABAD - 380007. PAN : AACFB1054D (REVENUE) (ASSESSEE) REVENUE BY : SHRI J. P. JANGID, SR. D.R . ASSESSEE(S) BY : SHRI P. B. SHAH, A.R. / // / DATE OF HEARING : 21/08/2013 / DATE OF PRONOUNCEMENT: 23/08/2013 / O R D E R PER A. K. GARODIA: THIS APPEAL IS FILED BY THE REVENUE AND THE CO IS FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) XV, AHMEDABAD DATED 04.10.2012 FOR THE SAME A.Y. 2008 09. 2. FIRST, WE TAKE UP THE APPEAL OF REVENUE. 3. ALTHOUGH SIX GROUNDS ARE RAISED BY THE REVENUE B UT IN FACT, ONLY THREE ISSUES ARE INVOLVED AND ALL ARE IN RELATION TO DISA LLOWANCE MADE BY THE A.O. U/S 40 (A) (IA) AND DELETED BY THE LEARNED CIT (A). TH E FIRST GRIEVANCE IS ABOUT DISALLOWANCE OF RS. 213,346/- FOR NON DEDUCTION OF TDS U/S 194A. THE SECOND GRIEVANCE IS WITH REGARD TO DISALLOWANCE OF RS. 600 ,000/- FOR DEDUCTION AND PAYMENT OF TDS AFTER THE DUE DATE U/S 200 (1) BUT B EFORE THE DUE DATE FOR FILING ITA NO.60 & CO 157/ AHD/2013 - 2 - OF RETURN OF INCOME U/S 139 (1). THE THIRD GRIEVANC E IS WITH REGARD TO DISALLOWANCE OF RS. 16,19,565/- WHICH WAS DELETED B Y THE LEARNED CIT (A) BY FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF MARILYN SHIPPING & TRANSPORT IN ITA NO. 477/VIZ/ 2008. 4. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSME NT ORDER. HE ALSO SUBMITTED THAT FRESH EVIDENCES WERE ADMITTED BY THE LEARNED CIT (A) IN VIOLATION OF RULE 46A. HE FURTHER SUBMITTED THAT TH E DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL MERLYN SHIPPING & TRANSPORT(S UPRA) HAS BEEN REVERSED BY VARIOUS HIGH COURTS INCLUDING HONBLE GUJARAT HIGH COURT. 5. AS AGAINST THIS, LEARNED AR OF THE ASSESSEE SUPP ORTED THE ORDER OF THE LEARNED CIT (A) IN RESPECT OF THE FIRST TWO ISSUES. FOR THE THIRD ISSUE, HE SUBMITTED THAT OTHER ARGUMENTS WERE ALSO MADE BEFOR E THE AUTHORITIES BELOW CONTENDING THAT NO TDS WAS DEDUCTIBLE U/S 194C IN R ESPECT OF THESE PAYMENTS OF RS. 16,19,565/- BUT NO DECISION IS GIVEN BY THE LOWER AUTHORITIES IN THAT REGARD AND HENCE, THE MATTER SHOULD GO BACK TO A.O. OR LEARNED CIT (A) FOR DECISION ON THOSE CONTENTIONS. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN RESPECT OF THE FIRST ISSUE, THE DECISION OF THE LEARNED CIT (A) IS ON THIS BASIS THAT THE PAYEE OF RS. 213,346/- HAD OBTAINED A CERTIFICATE U/S 197(1) FROM ITS A.O. BEING ADDL. CI T, TDS RANGE 1/C/II, CHENNAI DATED 18.04.2007. NO DEFECT IS POINTED OUT BY THE LEARNED DR IN THIS CERTIFICATE. HENCE, EVEN IF THIS CERTIFICATE IS FUR NISHED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LEARNED CIT (A), NO PURPOSE WILL BE SERVED BY RESTORING THIS MATTER TO THE A.O. IN THE ABSENCE OF ANY DEFECT IN THIS CERTIFICATE. HENCE, ON THE FIRST ASPECT, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE LEARNED CIT (A). ITA NO.60 & CO 157/ AHD/2013 - 3 - 7. FOR THE SECOND ISSUE, THE MATTER IS COVERED IN F AVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT RENDERE D IN THE CASE OF VIRGIN CREATIONS AND THE ORDER OF THE LEARNED CIT (A) IS B Y FOLLOWING THIS JUDGMENT OF HONBLE CALCUTTA HIGH COURT. HENCE, ON THE SECOND ASPECT ALSO, NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE LEARNED CIT (A). 8. FOR THE THIRD ISSUE, WE FIND FORCE IN THE SUBMIS SIONS OF THE LEARNED DR OF THE REVENUE BECAUSE THE DECISION OF THE SPECIAL BEN CH OF THE TRIBUNAL RENDERED IN THE CASE OF MERILYIN SHIPPING (SUPRA) IS NO MORE A GOOD LAW AS HAS BEEN HELD BY HONBLE JURISDICTIONAL HIGH COURT AND HENCE, THE ORDER OF THE LEARNED CIT (A) ON THIS ASPECT IS NOT SUSTAINABLE. BUT OTHER CO NTENTIONS WERE ALSO RAISED BEFORE THE LEARNED CIT (A) WHICH WERE NOT EXAMINED AND DECIDED BY THE LEARNED CIT (A). HENCE, WE SET ASIDE THE ORDER OF THE LEARN ED CIT (A) ON THE THIRD ISSUE AND RESTORE THE MATTER BACK TO HIM FOR A FRESH DECI SION WITH REGARD TO OTHER CONTENTIONS RAISED BEFORE HIM AS PER WHICH, IT WAS CONTENDED THAT TDS U/S 194C WAS NOT DEDUCTIBLE AND AS A CONSEQUENCE, NO DISALLO WANCE IS JUSTIFIED U/S 40 (A) (IA). LEARNED CIT (A) SHOULD PROVIDE ADEQUATE OPPOR TUNITY OF BEING HEARD TO BOTH SIDES AND THEN PASS NECESSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. 10. NOW, WE TAKE UP THE CO FILED BY THE ASSESSEE. T HE CO WAS FILED BELATEDLY. APPLICATION WAS MADE FOR CONDONATION OF DELAY AND LEARNED AR MADE ARGUMENTS ALSO FOR THE CONDONATION OF DELAY. BUT TH E GROUNDS RAISED BY THE ASSESSEE IN THIS CO ARE ALREADY TAKEN CARE OFF WHIL E DECIDING THE APPEAL OF THE ITA NO.60 & CO 157/ AHD/2013 - 4 - REVENUE AND HENCE, THE CO HAS BECOME INFRUCTUOUS. H ENCE, WE DISMISS THE CO AS INFRUCTUOUS AND DO NOT SEPARATELY DEAL WITH COND ONATION OF DELAY. 11. IN THE RESULT, THE CO OF THE ASSESSEE IS DISMI SSED. 12. IN THE COMBINED RESULT, THE APPEAL OF THE REVEN UE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CO OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTION ED ON THE CAPTION PAGE. SD/- SD/- (MUKUL KUMAR SHRAWAT) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD