ACIT 19(3), MUMBAI V. RAMDARSH RAMKISHUN VISHWAKARMA, MUMBAI

ITA 6757/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2965 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Department
• Bench Allotted: D
• Next Hearing Date: 23-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 05-11-2012
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Section: 143(3)

Judgement Text

, , D, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.6757/MUM/2012 ASSESSMENT YEAR: 2009-10 ACIT, 19(3) R.NO.305 FLOOR, PIRAMAL CHAMBER, PAREL MUMBAI-12 / VS. RAMDARSH RAMKISHUN VISHWAKARMA, 2 ND MANGAST CHHAYA, 15 TH ROAD, BANDRA(W) MUMBAI-400050 (REVENUE) (RES PONDENT) P.A. NO.AA APV3164C CO NO. 50/MUM/2015 (ARISING OUT OF ITA NO.6757/MUM/2012) ASSESSMENT YEAR: 2009-10 RAMDARSH RAMKISHUN VISHWAKARMA, 2 ND MANGAST CHHAYA, 15 TH ROAD, BANDRA(W) MUMBAI-400050 / VS. ACIT, 19(3) R.NO.305 FLOOR, PIRAMAL CHAMBER, PAREL MUMBAI-12 (APPELLANT) (REVENUE) P.A. NO.AAAPV3164C REVENUE BY SHRI B.S. BIST (DR) RESPONDENT BY NONE ! ' # / DATE OF HEARING : 23/06/2016 ' # / DATE OF ORDER: 29/06/2016 RAMDARSH RAMKISHUN 2 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI-30 {(I N SHORT CIT(A)}, DATED 03.08.2012 PASSED AGAINST ASSESSM ENT ORDER U/S 143(3) DATED 29.12.2011 FOR THE ASSESSMENT YEAR 2007- 08. 3. DURING THE COURSE OF HEARING, NONE APPEARED ON BEH ALF OF THE ASSESSEE, DESPITE THE FACT THAT NOTICE WAS DULY SERVED ON THE ADDRESS GIVEN IN THE APPEAL MEMO. 3.1. IT IS NOTED THAT EARLIER OCCASIONS ALSO NONE APPEA RED ON BEHALF OF THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE ARE CONSTRAINED TO DECIDE THIS APPEAL EX-PARTE QUA THE ASSESSEE. 3.2. LD. DR RELIED UPON THE ORDER OF THE AO. WITH REGA RD TO DISALLOWANCE DELETED BY THE LD. CIT(A) RELYING UPON THE JUDGMENT OF SPECIAL BENCH IN THE CASE OF MERILYN SH IPPING & TRANSPORTS V. ADDL. CIT, IT WAS SUBMITTED BY LD DR THAT THIS JUDGMENT HAS BEEN SUBSEQUENTLY REVERSED BY THE HIGH COURT WHEREIN CONTRARY VIEW TAKEN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIKANDARKHAN N. TUNVAR 357 ITR 312 AND BY HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. CRESCENT EXPORT SYNDICATE 262 CTR 525 (CALCUTTA). RAMDARSH RAMKISHUN 3 3.3. WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHO RITIES. IT IS NOTED THAT DISALLOWANCE WAS MADE BY THE AO U/ S 40(A)(IA), ON THE GROUND THAT THE ASSESSEE FAILED TO DEDUCT TA X AT SOURCE ON THE AMOUNT OF WAGES AND LABOUR CHARGES FOR RS. 1,76,43,453/- AND PURCHASE OF MATERIALS FROM M/S TR INITY ENTERPRISES FOR RS. 13,00,000/- AND TRANSPORTATION CHARGES FOR RS.15,27,443/-. DURING THE FIRST APPEAL BEFORE LD. CIT(A), THE ASSESSEE RAISED VARIOUS CONTENTIONS CHALLENGING TH E ORDER OF THE AO AND DISALLOWANCE MADE BY THE AO AS BAD IN LA W ON VARIOUS GROUNDS. THE LD. CIT(A) DELETED PART OF THE DISALLOWANCE RELYING UPON THE JUDGMENT OF HONBLE S PECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORTS (SUPRA) BY HOLDING THAT SECTION 40(A)(IA) WAS NOT APPLICABLE O N THE AMOUNT WHICH WAS NOT PAYABLE AS ON 31 ST MARCH 2009. 3.4. BEING AGGRIEVED, THE REVENUE HAS CONTESTED THE ORD ER OF THE LD. CIT(A) ON THE GROUND THAT THE LAW DECLARED BY THE SPECIAL BENCH IS NO MORE A GOOD LAW. 4. ON THE OTHER HAND, THE ASSESSEE FILED CROSS OBJECT ION AGITATING PART OF DISALLOWANCE CONFIRMED BY THE LD. CIT(A) AND RAISING OTHER ISSUES TO SUBMIT THAT OTHERWISE ALSO DISALLOWANCE U/S 40(A)(IA) WAS NOT CALLED FOR. 4.1. WE HAVE GONE THROUGH THE JUDGMENT OF HONBLE CALCU TTA HIGH COURT IN THE CASE OF CRESCENT EXPORT SYNDICATE (SUPRA), AND HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIKANDARKHAN N. TUNVAR,(SUPRA) WHEREIN IT HAS BEEN HELD THAT RAMDARSH RAMKISHUN 4 PROVISIONS OF SECTION 40(A)(IA) ARE APPLICABLE NOT ONLY IN RESPECT OF PAYMENTS OUTSTANDING AT THE END OF THE YEAR BUT ALSO IN RESPECT OF PAYMENTS WHICH HAVE BEEN PAID DURING THE YEAR WITHOUT MAKING TDS. NO CONTRARY VIEW HAS BEEN BROUG HT BEFORE US. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THE ORDER OF THE LD. CIT(A) TO THAT EXTENT AND SEND THESE GRO UNDS RAISED RAISED BY THE REVENUE AS WELL AS RAISED BY THE ASSE SSEE IN THE CROSS OBJECTION BEFORE US BACK TO THE FILE OF THE A O. THE AO SHALL DECIDE THIS ISSUE ON ALL OTHER GROUNDS AND AL L THE ISSUES THAT MAY BE RAISED BY THE ASSESSEE BEFORE THE AO FO R WHICH AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE A SSESSEE. THE ASSESSEE IS FREE TO RAISE LEGAL AND FACTUAL ISSUES BEFORE THE AO. WITH THESE DIRECTIONS, REVENUES APPEAL AS WELL AS CROSS OBJECTIONS FILED BY THE ASSESSEE ARE SENT BACK TO T HE FILE OF THE AO AND MAY BE TREATED AS PARTLY ALLOWED FOR STATIST ICAL PURPOSES. 5. REVENUES APPEAL AS WELL AS CROSS OBJECTIONS FILED BY THE ASSESSEE MAY BE TREATED AS PARTLY ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JUNE, 2016. SD/- (JOGINDER SINGH) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER ! MUMBAI; % DATED: 29 /06 /2016 CTX? P.S/. . . RAMDARSH RAMKISHUN 5 #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. '() / THE APPELLANT 2. *+() / THE RESPONDENT. 3. , , - ( ' ) / THE CIT, MUMBAI. 4. , , - / CIT(A)- , MUMBAI 5. 01 *2 , , '# 23 , ! / DR, ITAT, MUMBAI 6. 45 6! / GUARD FILE. / BY ORDER, +0' * //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI