DCIT 7(2), MUMBAI V. SEALORD DIVING & SALVAGE P.LTD, NAVI MUMBAI

ITA 701/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3602 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 09-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAMMED RIZWAN
• Assessee Lawyers: SHAILESH N DOSHI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SANJAY ARORA , A M AND SHRI PAWAN SINGH, JM ./ I.T.A. NO. 701/MUM/2013 ( / ASSESSMENT YEAR: 2009 - 10 ) DY. CIT - 7(2), ROOM NO. 624, M. K. RD., MUMBAI - 400 020 / VS. SEALORD DIVING & SALVAGE PVT. LTD. PLOT NO. D - 222/34, TTC INDUSTRIAL AREA, MIDC SHIRAVANE, NERUL (E), NAVI MUMBAI - 400 026 ./ ./ PAN/GIR NO. AAKCS 0916 Q (REVENUE ) : ( ASS ESSEE ) C.O. NO. 160/MUM/2015 (ARISING OUT OF ITA NO. 701/MUM/2013) ( / ASSESSMENT YEAR: 2009 - 10 ) SEALORD DIVING & SALVAGE PVT. LTD. PLOT NO. D - 222/34, TTC INDUSTRIAL AREA, MIDC SHIRAVANE, NERUL (E), NAVI MUMBAI - 400 026 / VS. DY. CI T - 7(2), ROOM NO. 624, M. K. RD., MUMBAI - 400 020 ( CROSS OBJECTOR ) : ( ASSESSEE ) REVENUE BY : SHRI MOHAMMED RIZWAN ASSESSEE BY : SHRI SHAILESH N. DOSHI / DATE OF HEARING : 17.05.2016 DATE OF ORDER : 2 0 .05.2016 / O R D E R PER S ANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE REVENUE AND THE CROSS OBJECTION (CO) BY THE ASSESSEE AGITATING THE PART ALLOWANCE OF THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 2 ITA NO. 701/M / 13 & CO NO.160/M / 15 (A.Y. 2009 - 10) SEALORD DIVING & SALVAGE PVT. LTD. 18.11.2 001 FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10 BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 13 , MUMBAI (CIT(A) FOR SHORT) VIDE HIS ORDER DATED 29.11.2012. 2. THE ISSUE UNDER REFERENCE IS THE DISALLOWANCE U/S. 40(A)(IA), I.E., IN VIEW OF THE EXIGIBILITY TO T AX DEDUCTION AT SOURCE ON THE CONTRACTUAL PAYMENTS BY THE ASSESSEE ON WHICH TAX NOT BEEN DEDUCTED AND PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT. THE LD. CIT(A) ALLOWED PART RELIEF TO THE ASSESSEE , I.E., TO THE EXTENT THE AMOUNT STANDS ACTUALLY PAID DURI NG THE YEAR, FOLLOWING THE DECISION BY THE SPECIAL BENCH OF THE TRIBUNAL IN MERILYN SHIPPING & TRANSPORT VS. ADDL. CIT [2012] 1 6 ITR (TRIB) 1 (VISH )( SB) , SO THAT , AGGRIEVED , BOTH THE PARTIES ARE IN APPEAL ; THE ASSESSEE PER A CO . 3. BEFORE US, THE LD. AUTH ORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, NOTING THE SEVERAL DECISIONS BY THE T RIBUNAL TAKING A CONTRARY VIEW ( I.E., TH A N THAT EXPRESSED IN MERILYN SHIPPING & TRANSPORT (SUPRA) ) IN VIEW OF AND FOLLOWING THE DECISION S IN CIT VS. CRESCENT EXPORT S YNDICATE [2013] 216 TAXMANN 258 (CAL) AND CIT VS. SIKANDARKHAN N. TUNVAR [2013] 357 ITR 312 (GUJ) , AND DISTINGUISH ING THE DECISION IN THE CASE OF CIT VS. VECTOR SHIPPING SERVICES [2013] 85 CCH 201 (ALL) , TO SOME OF WHICH REFERENCE WAS MADE BY HIM DURING HEARING, WOULD SUBMIT THAT HE , IN DEFERENCE TO THE STATEMENT OF LAW AS EXPRESSED THEREIN, CONCEDES TO THE SAME . HOWEVER, AT THE SAME TIME, THE HO NBLE DELHI HIGH COURT IN THE CASE OF CIT V S. ANSAL LAND MARK TOWNSHIP P. LTD. [ 2015 ] 377 ITR 635 (DEL) HAS HELD THE SECOND PROVISO TO SECTION 40(A)(IA) ( INSERTED BY FINANCE ACT, 2012 W.E.F. 01.4.2013) AS CLARIFICATORY AND, THEREFORE, RETROSPECTIVE. THE TR IBUNAL HAS , FOLLOWING THE SAID DECISION, COPIES OF SOME OF WHICH STAND PLACED ON RECORD (AS PART OF THE PAPER - BOOK), SET ASIDE THE MATTER BACK TO THE FILE OF THE A.O. FOR COMPLIANCE OF THE AMENDED PROVISION. THE SAME WAS URGED AND PRAYED FOR BEING ADOPTED IN THE INSTANT CASE AS WELL. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) COULD NOT CITE OR BRING ANY CONTRARY DECISION ON RECORD. 3 ITA NO. 701/M / 13 & CO NO.160/M / 15 (A.Y. 2009 - 10) SEALORD DIVING & SALVAGE PVT. LTD. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL PER ITS SEVERAL DECISIONS, A S RECENTLY IN THE CAS E OF MAHINDRA NAVISTAR AUTOMOTIVES LIMITED ( IN ITA NOS. 3324 & 4645/MUM/2013 DATED 13.05.2016 ) , HELD THAT THE AMENDMENT BY WAY OF SECOND PROVISO AND FIRST PROVISO TO SECTION 40(A)(IA) AND SECTION 201 (1) RESPECTIVELY BY FINANCE ACT, 2012 ONLY SEEKS TO AND O PERATIONALI Z E AND IMPLEMENT THE DECISION BY THE HONBLE SUPREME COURT IN HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VS . CIT [2007] 293 ITR 226 (SC) HOLD ING THAT TAX DEDUCTION AT SOURCE BEING ON LY ONE OF THE MODES OF PAYMENT OF TAX, WHERE THE SAME HAS BEEN PAI D BY THE PAYEE ITSELF, THE PAYER SHALL NOT BE REQUIRED TO DEDUCT TAX AT SOURCE ONCE AGAIN. IT IS SUCH VIEWS EXPRESSED BY THE TRIBUNAL PER ITS VARIOUS DECISIONS , EXPLAINING THE RATIONAL E OF THE AMENDMENT , THAT PREVAILED WITH THE HONBLE COURT IN ANSAL LAND MARK TOWNSHIP P. LTD. (SUPRA). UNDER THE CIRCUMSTANCES, WE FIND NO REASON TO TAKE A DIFFERENT VIEW. THE ASSESSMENT IS ACCORDINGLY SET ASIDE QUA THE SAID DISALLOWANCE, AND THE MATTER RESTORED TO THE FILE OF THE A SSESSING O FFICER TO ALLOW THE ASSESSEE AN OPP ORTUNITY TO ESTABLISH ITS CASE WITH REGARD THERETO IN TERMS OF THE AMENDED PROVISIONS AFORE - SAID. THE A.O. SHALL, VERIFYING THE ASSESSEES CLAIMS, DECIDE AFRESH IN LIGHT OF THE FOREGOING, ISSUING DEFINITE FIN D INGS OF FACT. WE DECIDE ACCORDINGLY. 5. IN T HE RESULT, THE R EVENUE S APPEAL IS DISMISSED AND THE ASSESSEES CROSS OBJECTION IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 17 , 201 6 SD/ - SD/ - ( PAWAN SINGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 20 . 0 5 .201 6 . . ./ ROSHANI , SR. PS 4 ITA NO. 701/M / 13 & CO NO.160/M / 15 (A.Y. 2009 - 10) SEALORD DIVING & SALVAGE PVT. LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI