ACIT, Noida V. M/s. H-one India Pvt. Ltd., Greater Noida

ITA 6738/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7767 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 24-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 24-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: D D BANSAL
• Keywords: Retrospective amendment; Tax effect
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D : NEW DELHI BEFORE SH. H.S. SIDHU , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO S . 6738 & 6739 /DEL/ 2013 ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 ASSTT . COMMISSIONER OF INCOME TAX, SECTOR - 24, NOIDA VS. H - ONE INDIA PVT. LTD., 12, UDYOG VIHAR, SURAJPUR, GREATER NOIDA. GIR/PAN : AAACH3082L (APPELLANT) (RESPONDENT) APPELLANT BY SH. T. VASANTHAN, SR. DR RESPONDENT BY SH. D.D. BANSAL, CA DATE OF HEARING 24.05.2016 DATE OF PRONOUNCEMENT 25.05.2016 ORDER PER O.P. KANT , A. M. : THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAINST A COMMON ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), DATED 11.09.2013 IN RELATION TO ASSESSMENT YEAR S 2008 - 09 & 2009 - 10. IN BOTH THE APPEALS, COMMON GROUNDS ARE RAISED, WHICH ARE AS UNDER: 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.8,08,964/ - ON ACCOUNT OF SHORT DEDUCTION AND IN DIRECTING THAT PROVISIONS CONTAINED IN OF SECTION 194 - C IS APPLICABLE ON THE PAYMENTS MADE BY THE ASSESSEE FOR HIRING OF BUSES, IGN ORING THE FACT OF THE CASE THAT DEDUCTOR COMPANY IS LIABLE TO DEDUCT THE TAX U/S 194 - 1 AT THE RATE OF 10% FOR HIRING OF BUSES IN VIEW OF AMENDMENT MADE U/S 194 - 1 W.E.F. 01.06.2007. 2. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF R S.8,08,964/ - ON ACCOUNT OF SHORT DEDUCTION WITHOUT APPRECIATING THE FACT THAT THE HIRED VEHICLE WERE COVERED UNDER THE DEFINITION OF PLANT AND MACHINERY AS PER PROVISION OF SECTION 43(3) AND ACCORDINGLY THE TDS WAS DEDUCTIBLE AS PER 2 ITA NO. 6738 & 6739/DEL/2013 AY: 2009 - 10 PROVISION OF SECTION 19 4 - 1 AT THE PRESCRIBED RATE, INSTEAD OF SECTION 194C AS HELD BY THE CIT(A) AFTER THE INSERTION OF AMENDED PROVISIONS IN THE SECTION 194 - 1 W.E.F.13.07.2006. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD . IT IS NOTICED THAT THE CBDT HAS ISSUED CIRCULAR NO. 21 OF 2015 DATED 10.12.2015 WITH RETROSPECTIVE EFFECT, REVISING THE MONETARY LIMIT TO RS.10,00,000/ - FOR NOT FILING APPEALS BEFORE THE TRIBUNAL. THE LD. SR. DEPARTMENTAL REPRESENTATIVE, ALTHOUGH SUPPORTED THE ORDER OF THE ASS ESSING OFFICER, BUT COULD NOT CONTROVERT THE FACT THAT TAX EFFECT INVOLVED IN THE APPEAL S ARE LESS THAN RS.10,00,000/ - . 3. FROM PARA 10 OF THE ABOVE CIRCULAR, IT IS PALPABLE THAT THE INSTRUCTION IS APPLICABLE TO THE PENDING APPEALS ALSO WITH RETROSPECTIVE EFFECT AND THERE IS A CLEAR - CUT DIRECTION TO THE DEPARTMENT TO WITHDRAW OR NOT PRESS SUCH APPEALS FILED BEFORE THE ITAT, WHEREIN TAX EFFECT IS LESS THAN RS.10,00,000/ - . GOING BY THE PRESCRIPTION OF THE AFORE - NOTED CIRCULAR, WE ARE OF THE VIEW THAT THE REVE NUE SHOULD HAVE EITHER NOT FILED THE INSTANT APPEAL S BEFORE THE TRIBUNAL OR WITHDRAWN THE SAME AS THE TAX EFFECT IN THESE APPEAL ARE ADMITTEDLY LESS THAN THE PRESCRIBED LIMIT I.E. RS. 10,00,000/ - FOR NOT FILING THE APPEAL. ACCORDINGLY , WE DISMISS THE INSTA NT APPEAL S W ITHOUT GOING INTO MERITS OF THE CASE. HOWEVER, THE DEPARTMENT IS AT 3 ITA NO. 6738 & 6739/DEL/2013 AY: 2009 - 10 LIBERTY TO FILE THE MISCELLANEOUS APPLICATION, IF THE TAX EFFECT IS MORE THAN THE PRESCRIBED LIMITED OF RS. 10 LACS OR OTHERWISE. 4. IN THE RESULT, BOTH THE APPEAL S OF THE REVENUE STAND DISMISSED. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 2 5 T H MAY , 2016 . S D / - S D / - ( H.S. SIDHU ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 5 T H MAY , 2016 . RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI