ACIT 13(1), MUMBAI V. BHIWANDIWALA & SONS, MUMBAI

ITA 7753/MUM/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4118 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 11-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SACHCHIDANAND DUBE
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 7753 AND 7754 / MUM/ 201 0 ( / ASSESSMENT YEA RS: 2005 - 06 AND 2 007 - 08 ) ASSTT. COMMISSIONER - 13(1), ROOM NO.418, 4 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / VS. M/S BHIW A NDIWALA AND SONS, 1 ST FLOOR,, JOSHI BUILDING, 1, NAGDEVI S TREET, MUMBAI - 400003 ( / APPELLANT ) .. ( / RESPONDEN T ) ./ ./PAN. : AAAFB0736E / APPELLANT BY SHRI SACHCHIDANAND DUBE / RESPONDENT BY NONE / DATE OF HEARING : 1.2.2016 / DA TE OF PRONOUNCEMENT: 1.2. 201 6 / O R D E R P ER B R BASKARAN, AM : BOTH THE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE TWO SEPARATE ORDER S PASSED BY THE LD.CIT(A) - 24 , MUMBAI AND THEY RELATE TO THE ASSESSMENT YEAR S 2005 - 06 AND 20 07 - 08. 2 . NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH THE HEARING WAS ADJOURNED ON THE LAST OCCASION AT THE INSTANCE OF THE ASSESSEE. HENCE, WE PROCEED TO DISPOSE OF THE APPEALS EX - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 3 . WE HEARD THE L D. DR AND PERUSED THE RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A TRANSPORT COMMISSION AGENT AND ALSO OWNED CERTAIN 7753/M/201 AND 7754/M/2010 2 NUMBER OF TANKERS. THE ASSESSEE HAS ALSO HIRED TANKERS FROM THE MARKET AND HAS MADE PAYMENTS TO THEM WITHOUT DEDUCTING TAX AT SO URCE. SINCE THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE ON THE PAYMENTS MADE TO THE HIRED TANKER LORRIES, THE AO DISALLOWED THE EXPENDITURE RELATING TO THE SAME U/S 40(A)(IA) OF THE ACT, BY TAKING THE VIEW THAT THE PAYMENT WAS MADE BY THE ASSESSEE FOR SUB - C ONTRACTING THE WORK AND HENCE THE PROVISIONS OF SECTION 194C OF THE ACT IS ATTRACTED. THE LD. DR SUBMITTED THAT THE LD. CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE VISHAKHAPATNAM BENCH OF THE TRIBUNAL IN THE CASE OF MYTHRI TRANSPORT CORPORATION V/S A CIT (2009) 124 TTJ (VISAKHA) 970 IN DELETING THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT . HOWEVER, THE KARNATAKA H IGH COURT HAS DECIDED AN IDENTICAL ISSUE AGAINST THE ASSESSEE IN THE CASE OF SMT.J RAMA V/S CIT (2010) 194 TAXMAN 37 (KAR). WHEN A SPECIF IC QUERY WAS RAISED TO THE LD.DR AS TO WHETHER THERE IS A P ARITY OF FACTS BETWEEN THE CASE DECIDED BY THE HONBLE KARNATAKA HIGH COURT AND THAT OF THE ASSESSEE, THE LD. DR SUBMITTED THAT THE MATTER MAY BE RES TORED TO THE FILE OF THE LD.CIT(A) FOR EXAMINING THE ISSUE AFRESH . 4. ACCORDING TO THE LD. DR, ON THE IDENTICAL SET OF FACTS, THE HONBLE KARNATAKA HIGH COURT HAS DECIDE AN IDENTICAL ISSUE AGAINST THE ASSESSEE IN THE CASE OF SMT.J RAMA(SUPRA). SINCE THE FACTS PREVAILING IN THE INSTANT CASE AND THAT EX ISTED IN THE CASE DECIDED BY HONBLE KARNATAKA HIGH COURT NEEDS TO BE BROUGHT ON RECORD, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE LD.CIT( A) . ACCORDINGLY, WE SET ASIDE THE ORDERS PASSED BY THE LD.CIT(A) FOR BOTH THE YE ARS UNDER CONSIDERATION AND RESTORE THE SAME TO HIS FILE FOR ADJUDICATING THE SAME AFRESH. 7753/M/201 AND 7754/M/2010 3 5 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE REVENUE ARE TREATED AS ALLOWED FO R STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 1 ST DAY OF FEB , 2 01 6 . 1 ST DAY OF FEB, 2 01 6 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIA L MEMBER ACCOUNTANT MEMBER MUMBAI: 1ST FEB , 2 01 6 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI