M/s. PMS Diesels, Phagwara V. Addl. Commissioner of Income Tax, Phagwara

ITA 64/ASR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5684 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA LD
• Assessee Lawyers: TARUN BANSAL LD

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.64(ASR)/2016 ASSESSMENT YEAR:2005- 06 M/S PMS DIESELS, VILLAGE:-JAMALPUR, G.T.ROAD, PHAGWARA PAN:AAAFR9505H VS. ASST. CIT PHAGWARA RANGE PHAGWARA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL (LD. ADV. ) RESPONDENT BY: SH. RAJEEV GUBGOTRA (LD. DR) DATE OF HEARING: 07.03.2018 DATE OF PRONOUNCEMENT: 28.03.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE ORD ER DATED 16.11.2015 PASSED BY THE LD. CIT(A), JALANDHAR, U/S 25 0(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2. THE FACTS OF THE CASE ARE ALREADY ON RECORD AND HENCE A RE NOT REPEATED HEREIN FOR THE SAKE OF CONVENIENCE AND BR EVITY. HOWEVER, THE CRUX OF THE ORDER UNDER CHALLENGE IS THAT THE LD. ITA NO.64/ASR/2016 (A.Y.2005-06) M/S PMS DIESELS, PHAGWARA VS. ACIT 2 CIT(A) WAS DIRECTED BY THE ITAT, AMRITSAR BENCH, VIDE I TS ORDER DATED 26.06.2009 (ITA NO. 457(ASR)/2008) TO DECIDE A FRESH THE ADDITION OF RS.40,98,544/-, WHICH WAS DISALLOWED BY IN VOKING THE PROVISION OF SEC.40(A)(IA) OF THE ACT BY THE ASSESSING OFF ICER AND CONFIRMED BY THE LD. CIT(A). 3. THE LD. AR SUBMITTED THAT PARTIES AGAINST WHOSE AMOUNT S, DISALLOWANCES HAVE BEEN MADE UNDER SECTION 40(A)(IA) OF THE ACT, HAVE ALREADY INCORPORATED THE AMOUNTS INVOLVED IN THE INSTANT CASE IN THEIR INCOME TAX RETURN BY PAYING THE D UE TAX, THEREFORE AMOUNTS INVOLVED QUA 13 PARTIES ARE REQUIR ED TO BE SEND BACK TO THE FILE OF AO FOR VERIFICATION FROM THE PARTIES AS TO WHETHER THEY HAVE INCORPORATED THE AMOUNTS INVOLVED I N THEIR INCOME TAX RETURN AND DUE TAX WAS PAID OR NOT. IT WAS FURTHER SUBMITTED THAT THE LD. AR THAT ADDIT ION QUA SHIPPING EXPENSES, FRIGHT & FORWARDING EXPENSES BE ALSO D IRECTED TO DECIDE IN ACCORDANCE TO SEC.172 OF THE I.T. ACT. 4. ON THE OTHER HAND, THE LD. DR HAS NOT RAISED ANY SPECI FIC OBJECTION EXCEPT RELYING UPON THE ORDER PASSED BY THE L D. CIT(A). ITA NO.64/ASR/2016 (A.Y.2005-06) M/S PMS DIESELS, PHAGWARA VS. ACIT 3 5. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE AS THE ASSESSEE HAS TAKEN THE STAND THAT PARTIES INVOLVE D IN THE INSTANT CASE ON WHOSE BASIS, THE ADDITION HAS BEEN MA DE AND CONFIRMED QUA DISALLOWANCES OF EXPENSES FOR NON DEDUCTION OF TDS BY INVOKING THE PROVISIONS OF SEC.40(A)(IA) OF THE ACT HAVE ALREADY DEPOSITED THE DUE TAX BY INCLUDING THE AMOUN TS INVOLVED IN THE INSTANT CASE IN THEIR INCOME TAX RETURN. IN TH E SAID CIRCUMSTANCES, WE SET ASIDE THE ADDITION AS CONFIRMED BY THE LD. CIT(A) AND RESTORE BACK TO THE FILE OF LD. AO TO DECID E AFRESH IN VIEW OF THE PROVISO OF SEC.40(A)(IA) READ WITH SEC.201 (1)(A) OF THE ACT AS WELL AS IN VIE OF THE HINDUSTAN COCO COLA BEVERAGE PVT. LTD. VS. CIT (SUPRA). WITH REGARD TO THE ADDITION OF SHIPPING EXPENSES AND FREIGHT & FORWARDING CHARGES, WE FEEL IT APPROPRIATE TO DIRECT THE LD. AO TO DECIDE AFRESH IN VIEW OF THE PARA METERS AS PRESCRIBED UNDER SECTION 172 OF THE ACT AND REST DISALLOWANCES QUA L EGAL EXPENSES, ADVERTISING AND PUBLICITY EXPENSES, FREIGHT & FORWARDING EXPENSES AND IHC/THC/C&F EXPENSES IN ACCORDANCE WITH LAW. ITA NO.64/ASR/2016 (A.Y.2005-06) M/S PMS DIESELS, PHAGWARA VS. ACIT 4 THE ONUS, EITHER WAY, I.E. WHETHER FALLING UNDER SECT ION 40(A)(I) OR 40(A)(IA), I.E., TO SHOW THAT THE SAME I S NOT ATTRACTED IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IS ON THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 .03.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED:28.03.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) M/S PMS DIESELS, G.T. RAOD, PHAGWARA (2) THE ADDL. CIT, PHAGWARA (3) THE CIT(A), JALANDHAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER