M/s. Barnala Steels Industries Limited, New Delhi V. DCIT, Muzaffarnagar

ITA 6118/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3298 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 10-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Rectification of order
• Section: 143(3); 194C; 154

Judgement Text

ITA NO. 6118/DEL/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDEN T & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-6118/DEL/2014 ( ASSESSMENT YEAR: 2009-10) BARNALA STEELS INDUSTRIES LTD. FLAT NO.17, JASWANT APARTMENT JAMIA NAGAR, OKHLA VILLAGE, NEW DELHI. AABCB2772Q VS DCIT CIRCLE 2 MUZAFFARNAGAR ASSESSEE BY SH. ANKIT GUPTA, ADV. REVENUE BY SH. S.K. JAIN, SR. DR ORDER PER K. NARSIMHA CHARY, J.M. THIS IS AN APPEAL CHALLENGING THE ORDER DATED 11.09 .2014 IN APPEAL NO. 14/2014-15/MZR/764 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS)-MUZAFFAR NAGAR. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY DERIVING INCOME FROM THE BUSINESS OF MANUFACTURING OF M.S. BARS AND TMT STEEL. ASSESSMENT OF INCOME U/S 143(3) OF THE ACT FOR THE AY 2009-10 WAS COMPLETE BY ORDER DATED 29.12.20 11 COMPUTING THE INCOME AT RS. 1,44,52,756/-. HOWEVER , STATING THAT NO DOCUMENTARY EVIDENCES REGARDING PAYMENT OF TDS ON CERTAIN PAYMENTS UNDER THE HEAD ADVERTISEMENT PUBL ICITY AND DATE OF HEARING 03.05.2017 DATE OF PRONOUNCEMENT 05.05.2017 ITA NO. 6118/DEL/2014 2 ANNUAL MAINTENANCE CONTRACTS WAS FOUND TO HAVE BEEN ENCLOSED IN RESPECT OF AY 2009-10, THE AO PASSED A RECTIFICA TION ORDER DATED 03.03.2014 U/S 154/251/143(3) OF THE ACT THER EBY MAKING AN ADDITION OF RS. 6,43,056/- TO THE INCOME OF THE ASSESSEE. APPEAL FILED AGAINST SUCH RECTIFICATION ORDER WAS D ISMISSED BY THE LD. CIT (A) BY WAY OF IMPUGNED ORDER. 3. AGGRIEVED BY THE ORDERS OF THE AUTHORITIES BELOW AND MORE PARTICULARLY CHALLENGING THE IMPUGNED ORDER, THE AS SESSEE CARRIED THE MATTER IN THIS APPEAL STATING THAT THERE WAS NO MISTAKE APPARENT ON THE FACE OF RECORD IN THE ORDER U/S 143 (3) OF THE ACT THAT COULD HAVE BEEN RECTIFIED U/S 154 OF THE ACT, AS SUCH THE ASSUMPTION OF JURISDICTION BY THE AO U/S 154 OF THE ACT TO MAKE ADDITIONS ON THE GROUND THAT NO DOCUMENTS SUPPORTIN G THE PAYMENT OF TDS ON CERTAIN PAYMENTS WERE ENCLOSED. 4. IT IS THE ARGUMENT OF THE LD. AR THAT IN THIS MA TTER THE ASSESSMENT WAS U/S 143(3) OF THE ACT AND ALL THE RE CORD WAS AVAILABLE BEFORE THE AO WHEN HE PASSED SUCH AN ORDE R U/S 143(3) OF THE ACT, THE QUESTION WHETHER THE TDS WAS LIABLE OR NOT ON THE PAYMENTS ENUMERATED BY THE AO IN THE ORDER U/S 154 OF THE ACT IS A DEBATABLE ONE AND NOT AVAILABLE TO THE AO FOR SECTION 154 OF THE ACT FOR MAKING ANY ADDITIONS. PER CONTRA, LD. DR VEHEMENTLY ITA NO. 6118/DEL/2014 3 RELIED ON THE ORDERS OF THE AUTHORITIES BELOW STATI NG THAT THE ORDERS ARE WELL REASONED ONES. 5. WE HAVE CAREFULLY GONE THROUGH THE RECORD. RELE VANT PORTION OF THE ORDER U/S 154 IS AS FOLLOWS: IT IS OBSERVED THAT NO DOCUMENTARY EVIDENCES REGARD ING PAYMENT OF TDS ON THE FOLLOWING PAYMENTS UNDER THE HEAD ADVERTISEMENT & P UBLICITY AND ANNUAL MAINTENANCE CONTRACT WAS FOUND ENCLOSED IN THE CASE RECORD OF THE ASSESSEE FOR AY 2009-10: 1. BIJAN CINEMAX P. LTD., DELHI 22.06 .2008 62,885/- ADVERTISEMENT & PUBLICITY 2. INDER KR. ART SERVICES 19.09.2008 24,900/- ADVERTISEMENT & PUBLICITY 3. PRINT HOUSE,MUZAFFARNAGAR 22.10.2008 83, 630/- ADVERTISEMENT & PUBLICITY 4. DR. BALRAJ 10.11.2008 1,20,000/- ADVE RTISEMENT & PUBLICITY 5. PRABHARI ZILA KRISHI & UDYOG PRADARSHANI 22.01.2009 50,000/- ADVERTISEMENT & PUBLICITY 6. KALANIDHI PRINTING PRESS 24.01.2009 71 ,750/- ADVERTISEMENT & PUBLICITY 7. PRINT HOUSE 02.02.2009 1,50,000/- AD VERTISEMENT & PUBLICITY 8. USHODAYA ENTERPRISES P. LTD. 31.03.2009 2 5,000/- ADVERTISEMENT & PUBLICITY 9. NUTEK SYSTEM & CONTROL 54,000/- A MC TOTAL 6,43,056/- 6. NO DOUBT THE LIABILITY TO DEDUCT AND PAY TDS ON THESE PAYMENTS IS A DEBATABLE ONE AND HAS TO BE DECIDED A FTER AFFORDING AN OPPORTUNITY TO THE ASSESSEE, AND HENCE, IT CANNO T BE SAID THAT IT IS A MISTAKE APPARENT ON THE FACE OF RECORD. SE CTION 154 OF THE ACT CLEARLY READS THAT WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM RECORD, ANY INCOME TAX AUTHORITY MAY AMEND ANY ORDER PASSED BY IT. SINCE, WE ARE OF THE FIRM OPIN ION THAT THE QUESTION INVOLVED IN THIS MATTER SOUGHT TO BE RECTI FIED U/S 154 OF THE ACT IS NOT A MISTAKE APPARENT FROM THE RECORD, BUT A DEBATABLE ISSUE, WE HOLD THAT IT IS NOT AVAILABLE T O THE AO TO MAKE ADDITIONS U/S 194C OF THE ACT UNDER THE GUISE OF RE CTIFICATION OF ITA NO. 6118/DEL/2014 4 MISTAKE APPARENT FROM RECORD. WITH THIS VIEW OF TH E MATTER, WE FIND THAT THE ORDERS OF THE AUTHORITIES BELOW CANNO T BE SUSTAINED AND ACCORDINGLY QUASH THE SAME. ADDITIONS MADE UND ER THE ORDER DATED 03.03.2014 U/S 154 OF THE ACT ARE DIRECTED TO BE DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MAY, 2017 SD/- SD/- (G.D. AGRAWAL) (K. NARSIMHA CHAR Y) PRESIDENT JUDICIAL MEMBER DATED: 05.05.2017 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO. 6118/DEL/2014 5 DRAFT DICTATED ON 03.05.2017 DRAFT PLACED BEFORE AUTHOR 04.05.2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 05.05.17 KEPT FOR PRONOUNCEMENT ON 05.05.17 FILE SENT TO THE BENCH CLERK 08.05.17 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.