The Income Tax Office, Ward-1, Bhuj V. Shri Bhavin S. Dholakiya, GANDHIDHAM

ITA 76/RJT/2013

• Counselvise Citation: 7624914 RSA 2013
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR J B JHAVERI
• Assessee Lawyers: D M RINDANI CA
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA JM AND SHRI B. R. JAIN AM ITA NO. 76/RJT/2013 / ASSESSMENT YEAR 2009-10. THE I.T.O. WARD-1, GANDHIDHAM. ( / APPELLANT V/S SHRI BHAVIN S. DHOLAKIA, PLOT NO. 22, HOUSE NO. 5, SECTOR- 7, GANDHIDHAM- KUTCH. PAN- AGPPD0260J / RESPONDENT C.O. NO. 09/RJT./2013 IN ITA NO. 76/RJT/2013 / ASSESSMENT YEAR 2009-10. SHRI BHAVIN S. DHOLAKIA, PLOT NO. 22, HOUSE NO. 5, SECTOR-7, GANDHIDHAN- KUTCH. PAN- AGPPD0260J ( / APPELLANT V/S THE I.T.O. WARD-1, GANDHIDHAM. / RESPONDENT ! '# / REVENUE BY DR. J.B. JHAVERI, D.R. $% ! '# / ASSESSEE BY SHRI D.M. RINDANI, C.A. ' & ' %( / DATE OF HEARING 08/01/2014 ) %( / DATE OF PRONOUNCEMENT 09/01/2014 / ORDER PER B. R. JAIN, A. M. : THE APPEAL BY REVENUE AND CROSS OBJECTION BY ASSESS EE ARISE AGAINST THE ORDER DATED 27/11/2012 OF SHRI N.R. SON I, THE LEARNED CIT(A)- II, RAJKOT. THE GROUNDS RAISED IN APPEAL BY REVENUE ARE AS UNDER:- 1. WHETHER CIT(A) WAS JUSTIFIED IN HOLDING THAT 4 0(A)(IA) CAN BE APPLIED ONLY ON AMOUNTS REMAINS OUTSTANDING AT THE END OF THE YEAR. 2. WHETHER CIT(A) IS JUSTIFIED IN GIVING RELIEF TO THE ASSESSEE ON THE BASIS OF ITAT VISHAKHAPATTANAM BENCH IN CASE O F MERILYN ITA 76/RJT/2013 & C.O. 09/RJT./2013 2 & TRANSPORTER, DESPITE THE FACT THAT THIS DECISION HAS BEEN SUSPENDED INTERIMLY BY HONBLE HYDERABAD HIGH COURT , THROUGH ITS ORDER ITTAMP NO. 908 OF 2012 IN ITA NO. 384 OF 2012. GROUNDS RAISED IN C.O. ARE REPRODUCED AS UNDER:- 1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -II, RAJKOT ERRED IN NOT ADJUDICATING UPON THE PLEA OF THE APPE LLANT THAT WAS ADVANCED BOTH BEFORE THE ASSESSING OFFICER AND THE FIRST APPELLATE AUTHORITY THAT IN VIEW OF NATURE OF BUSIN ESS THE APPELLANT WAS NOT LIABLE FOR DEDUCTION OF TAX AT SO URCE U/S 194C R.W.S. 195 OF THE INCOME TAX ACT AND HENCE CONSEQUENTLY THERE WAS NO WARRANT FOR APPLICABILITY OF SECTION 40(1)(A) OF THE ACT. 2 . ASSESSEES COUNSEL SEEKS TO WITHDRAW THE ADJOURNM ENT APPLICATION. LD. D.R. DOES NOT OBJECT. THE REQUEST TO WITHDRAW A PPLICATION FOR ADJOURNMENT STANDS ALLOWED AND PARTIES WERE DIRECTE D TO ARGUE THEIR CASE. 3. HEARD PARTIES WITH REFERENCE TO MATERIAL ON RECORD . THE LD. CIT(A) COMMITTED ERROR IN DELETING THE ADDITION BY RELYING ON THE SPECIAL BENCH ORDER OF VISHAKHAPATTANAM BENCH OF THE TRIBUNAL IN CASE OF MERILYN & TRANSPORTERS VS. CIT 136 ITD 23. AS THIS DECISION O F THE TRIBUNAL STANDS SET ASIDE BY THE HONBLE ANDHRA PRADESH HIGH COURT. THEREAFTER, THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. S IKANDAR KHAN TUNVAR (2013) 357 ITR 312 (GUJARAT), HAS LAID DOWN THAT TH E EXPRESSION PAYABLE APPEARING IN SECTION 40-A(IA) OF THE I.T. ACT, 1961 (IN SHORT THE ACT), MEANS PAYABLE AT ANY TIME DURING THE YEAR. IF THE ASSESSE E IS LIABLE TO DEDUCT TAX AT SOURCE, THEN PROVISIONS OF SECTION 40-A(IA) OF T HE ACT ARE APPLICABLE TO THE PAYMENTS OF EXPENDITURE MADE DURING THE YEAR AS WELL, EVEN THOUGH, THEY MAY NOT BE OUTSTANDING AT THE END OF THE RELEV ANT YEAR. IN THE PRESENT CASE, THE LD. CIT(A), HOWEVER, DID NOT RENDER ANY D ECISION ON ASSESSEES PLEA THAT HE BEING A MEDIATOR, PROVISIONS OF SECTIO N 194(C) OF THE ACT ARE NOT APPLICABLE TO HIM. SINCE THIS FACT REQUIRES ENQ UIRY, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND REMIT THE MATTER BACK TO HIM TO RENDER HIS ITA 76/RJT/2013 & C.O. 09/RJT./2013 3 DECISION BY WAY OF A SPEAKING ORDER ON THIS ALTERNA TE PLEA RAISED BEFORE HIM. 4. IN THE RESULT, APPEAL BY REVENUE AND CROSS OBJECTI ON BY ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 09/01/2014. SD/- SD/- ( T. K. SHARMA ) ( B. R. JAIN ) '* /JUDICIAL MEMBER #( '* / ACCOUNTANT MEMBER *#+ ,*-/ ORDER DATE 09/01/2014. /RAJKOT *RANJAN / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- THE I.T.O., WARD-1, GANDHIDHAM. 2. /RESPONDENT- SHRI BHAVIN S. DHOLAKIA, GANDHIDHAM. 3. '-2- % & 3% / CIT-I, RAJKOT. 4. & 3%- / CIT (A)-II, RAJKOT. 5. 789 % , , / DR, ITAT, RAJKOT 6. 9; <= / GUARD FILE. *#+ '# / BY ORDER , TRUE COPY PRIVATE SECRETARY, , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.