Gujarat Maritime Board, Gandhinagar V. The Dy.CIT., GNR Range, Gandhinagar

ITA 793/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63180 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-11-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Section: 194C; 201(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.793 & 850/ AHD/2010 (ASSESSMENT YEAR 2009-10 AND 2008-09 RESPECTIVELY) GUJARAT MARITIME BOARD, GMB BHAVAN, SECTOR 10A, OP. AIR FORCE STATION, GANDHINAGAR-382010 VS. ITO (TDS), GANDHINAGAR PAN/GIR NO. : AABCG6676L (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S N SOPARKAR, AR RESPONDENT BY: SHRI D K SINGH, SR. DR DATE OF HEARING: 07.11.2012 DATE OF PRONOUNCEMENT: 07.12.2012 O R D E R PER SHRI A. K. GARODIA, AM:- BOTH THESE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDER OF LD. CIT(A) GANDHINAGA R DATED 29.01.2010 FOR THE ASSESSMENT YEAR 2009-10 AND DATED 12.02.201 0 FOR THE ASSESSMENT YEAR 2008-09. 2. SINCE, THE ISSUE INVOLVED IS SIMILAR / IDENTICAL , BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WA Y OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. THE GROUNDS IN BOTH THESE YEARS ARE SIMILAR AND HENCE, WE REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE IN ASS ESSMENT YEAR 2009-10 IN I.T.A.NO. 793/AHD/2010, WHICH ARE AS UNDER: I.T.A.NO. 793 & 850 /AHD/2010 2 1. LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN TREATING THE APPELLANT AS ASSESSEE IN DEFAULT U/S. 201(1) OF THE ACT BY CONCURRING WITH THE VIEW OF THE AO THAT THE APPELLA NT WAS LIABLE TO DEDUCT TDS UNDER SECTION 194-1 AND NOT 194C OF THE ACT. BOTH THE LOWER AUTHORITIES HAVE ERRED IN NOT APPRECIATING TH E DEPARTMENT CIRCULAR #715 SPECIFYING THAT THE TDS TO BE MADE AS PER THE PROVISION OF SECTION 194C IN RESPECT OF PAYMENTS MA DE TO THE HOARDING CONTRACTOR FOR DISPLAY OF ADVERTISEMENT. T HIS ACTION OF CIT(A) BEING IN CLEAR BREACH OF PRINCIPLES OF NATUR AL JUSTICE DESERVES TO BE QUASHED. 2. LEARNED CIT(A) HAS ERRED IN LAW AND ON FA CTS IN TREATING THE APPELLANT AS S IN DEFAULT U/S. 201(1) OF THE ACT AN D CONFIRMING THE VIEW TAKEN BY AO THAT THE APPELLANT WAS LIABLE TO M AKE TDS UNDER SECTION 194-1 AND NOT 194C OF THE ACT IN RESPECT OF PAYMENT MADE FOR COMPOSITE WORK/SERVICE CONTRACT WITH M/S. SLIM SHIP CARE. BOTH THE LOWER AUTHORITIES HAVE GROSSLY ERRED IN IN TERPRETING THE TERMS OF THE WORK CONTRACT AND HELD THE SAME TO BE CONTRACT FOR HIRING OF EQUIPMENTS EXIGIBLE TO DEDUCTION OF TDS U NDER THE PROVISION OF SECTION 194-1 OF THE ACT. LD. CIT(A) U NDER THE CIRCUMSTANCES OUGHT TO HAVE HELD THAT PROVISIONS OF SECTION 194C WERE RIGHTLY APPLIED. 3. LEARNED CIT(A) HAS ERRED IN LAW AND ON FA CTS IN CONFIRMING THE LEVY OF INTEREST WHICH IS IN THE NATURE OF PENA LTY U/S. 201(1A) OF THE ACT THAT IS WHOLLY UNSUSTAINABLE IN LAW AND ON FACTS AND THE CIRCUMSTANCES OF THE CASE. THE LEVY OF PENAL INTERE ST BEING WITHOUT ANY MERITS AND JUSTIFICATION REQUIRES TO BE QUASHED . 4. THE ORDER PASSED BY CIT IS WITHOUT PROPERLY APPR ECIATING THE FACTS AND THAT HE FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSION, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEE N CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. 4. WE FIND THAT A LETTER HAS BEEN SUBMITTED BY THE LD. A.R. SHRI VIRK H P SINGH DATED 17.08.2010 ALONG WITH COPY OF THE O RDER PASSED BY LD. CIT(A) GANDHINAGAR U/S 154 ON 02.07.2010. IT WAS S UBMITTED BY THE LD. A.R. IN THIS LETTER THAT LD. CIT(A) HAS RECALLED HI S ORDER DATED 12.02.2010 AND 29.01.2010 FOR THESE TWO YEARS AGAINST WHICH TH ESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AND HENCE, THESE TWO APP EALS OF THE ASSESSEE DO I.T.A.NO. 793 & 850 /AHD/2010 3 NOT SURVIVE AND ARE LIABLE TO BE DISMISSED. IN THE COURSE OF HEARING BEFORE US, IT WAS SUBMITTED BY THE LD. A.R. THAT IN VIEW O F THIS LETTER DATED 17.09.2010 AND THE ORDER OF LD. CIT(A) DATED 02.07. 2010 PASSED BY HIM U/S 154 OF THE INCOME TAX ACT, 1961 FOR BOTH THESE YEARS, AS PER WHICH, BOTH THE ORDERS PASSED BY HIM WERE RECALLED AND HEN CE, HE HAS NOTHING MORE TO SAY. 5. LD. D.R. HAS SUBMITTED THAT IN VIEW OF THIS FACT UAL POSITION, BOTH THESE APPEALS OF THE ASSESSEE ARE LIABLE TO BE DISM ISSED. 6. WE HAVE CONSIDERED THE MATERIAL AVAILABLE ON REC ORD AND AS DISCUSSED ABOVE, WE FIND THAT BOTH THE ORDERS PASSE D BY LD. CIT(A) FOR THESE TWO ASSESSMENT YEARS HAVE ALREADY BEEN RECALL ED BY HIM AS PER ORDER PASSED U/S 154 ON 02.07.2010 AND HENCE, BOTH THESE APPEALS OF THE ASSESSEE DO NOT SURVIVE AND HENCE, DISMISSED. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD I.T.A.NO. 793 & 850 /AHD/2010 4 1. DATE OF DICTATION 03.12.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.12.12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 07/12/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.7/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 07/12/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .