Vinayak Metal & Minerals, Bhubaneswar V. ITO, Bhubaneswar

ITA 83/CTK/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7548 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 27-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B N DASH
• Assessee Lawyers: D K SHETH
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.83 /CTK/2015 ASSESSMENT YEAR : 2007 - 08 VINAYAK METAL & MINERALS, N3 - 161, IRC VILLAGE, NAYAPALI, BHUBANESWAR. VS. ITO, WARD 2 (1), BHUBANESWAR. PAN/GIR NO. AAFPV 5228 E (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI D.K.SHETH, AR REVENUE BY : SHRI B.N.DASH, DR DATE OF HEARING : 1 6 /11 / 2016 DATE OF PRONOUNCEMENT : 16 /11 / 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A - II, BHUBANESWAR , DATED 26.12.2014 , FOR THE ASSESSMENT YEAR 2007 - 08 . 2. IN GROUND NO.1 OF THE APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF R S.15,22,295/ - U/S. 40(A)(IA) OF THE ACT. 3. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE MADE PAYMENT OF TRANSPORTATION CHARGES TO THE FOLLOWING TRANSPORTERS: 2 ITA NO.83/CTK/2015 ASSESSMENT YEAR : 2007 - 08 DATE NAME OF THE TRANSPORTERS QUANTITY AMOUNT (RS.) 25.11.06 SHIV PARVATI ENT.PVT LTD. 2022.000 5,05,000 6.10.06 MA TARINI ROADWAYS 192.635 1,83,004 7.11.06 MAA TARINI ROADWAYS 1558.340 3,42,614 2.11.06 MAA TARINI ROADWAYS 36.450 34,627 30.11.06 SHIV PARVATI ENT. PVT.LTD. 3511.930 4,56,550 TOTAL: 7320.355 15,22,295 4. SINCE NO TDS WAS DEDUCTED THEREFROM U/S.194C OF THE ACT, THE ASSESSING OFFICER DISALLOWED THE SAME BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 5. ON APPEAL, LD CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 6. BEFORE ME, LD A.R. OF THE ASSESSEE ARGUE D THAT THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. VICTOR SHIPPING SERVICES (P) LTD., (2 013) 357 ITR 642(ALL),HAS HELD THAT FOR DISALLOWING EXPENSES FROM BUSINESS AND PROFESSION ON THE GROUND THAT TAX HAS NOT BEEN DEDUCTED AT SOURCE, THE AMOU NT SHOULD BE PAYABLE AND NOT IT HAS BEEN P AID BY THE END OF THE YEAR. HE SUBMITTED AS WILL BE OBSERVED FROM THE ASSESSMENT ORDER THAT IT IS NOT IN DISPUTE THAT THE AMOUNT OF TRANSPORTATION CHARGES WERE PAID DURING THE YEAR 3 ITA NO.83/CTK/2015 ASSESSMENT YEAR : 2007 - 08 AND NO AMOUNT WAS OUTSTANDING A ND PAYABLE AS AT THE END OF THE ACCOUNTING YEAR, THEREFORE, IN VIEW OF THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF VITOR SHIPPING SERVICES (P) LTD., (SUPRA), NO DISALLOWANCE U/S.40(A)(IA) IS WARRANTED. HE FURTHER SUBMITTED THAT THE SLP FI LED AGAINST THE JUDGMENT OF HONBLE ALLAHABAD HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT VIDE JUDGMENT DATED 2.7.2014 IN CC NO.(S) 8068/2014. 7. ON THE OTHER HAND, LD DR. RELIED ON THE ORDERS OF LOWER AUTHORITIES., 8. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. I FIND THAT IN THE INSTANT CASE, THE UNDISPUTED FACTS ARE THAT THE ASSESSEE PAID TRANSPORTATION CHARGES OF RS.15,22,295/ - DURING THE YEAR UNDER CONSIDERATION W ITHOUT DEDUCTING TDS TH EREFROM. THE SUBMISSION OF THE ASSESSEE IS THAT NO AMOUNT WAS OUTSTANDING AND PAYABLE TO THE PARTIES AS AT THE END OF THE ACCOUNTING YEA R WHICH REMAINS UNCONTROVE R TED BY LD D.R. , H ENCE, THE DECISION OF HONBLE ALLAHABAD HIGH COURT I N THE CASE OF VICTOR SHIPPING SERVICES (P) LTD., (SUPRA) SQUARELY APPLIES TO THE FACTS OF THE ASSESSEE. THEREFORE, RESPECTFULLY FOLLOWING THE SAME, I SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE ADDITION OF RS.15,22,295/ - MADE U/S.40(A)(IA) OF THE ACT AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSE. 4 ITA NO.83/CTK/2015 ASSESSMENT YEAR : 2007 - 08 9. GROUND NO.2 READS AS UNDER: FOR THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO WAS WRONG AND UNJUST IN INITIATING PROCEEDINGS U/S 148 OF THE I.T.ACT EVEN AFTER COMPLETION OF THE ASSESSMENT U/S.143(3). ALL THE RELEVANT DOCUMENTS, CASH BOOK, BANK BOOK, BOOKS OF ACCOUNT, LEDGER COPIES, BILLS AND VOUCHERS ETC WERE DULY PRODUCED BEFORE THE AO DURING THE PROCEEDINGS U/S.143(3) AND NO ADDITIONAL/FRESH DOCUMENTS WERE PRODUCED BEFORE HIM DURING THE PROCEEDINGS U/S.147 OF THE ACT. ACTION OF THE AO WAS WHOLLY ARBITRARY, UNREASONABLE, UNCALLED FOR AND BAD IN LAW. IN VIEW OF THE FACTS AND THE CIRCUMSTANCES, IT MAY KINDLY BE HELD ACCORDINGLY. 10. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT HE IS NOT PRESSING THIS GROUND OF APPEAL AD ALSO MADE ENDORSEMENT IN THE GROUNDS OF APPEAL APPENDED TO FORM 36 TO THIS EFFECT. H ENCE THE SAME IS DISMISSED AS NOT PRESSED. 11. GROUND NO.3 OF THE APPEAL RELATES TO CHARGING OF INTEREST U/S.234B AND 234C. 12. AT THE TIME OF HEARING, NO ARGUMENTS WERE ADVANCED BY THE LD A.R. I HOLD THAT CHARGING OF INTEREST U/S.234B AND 234C IS CONSEQUENTIAL AND, ACCORDINGLY, DISPOSE OF THIS GROUND OF APPEAL . 13. GROUND NO.4 IS GENERAL IN NATURE AND REQU IRES NO SEPARATE ADJUDICATION BY ME . 5 ITA NO.83/CTK/2015 ASSESSMENT YEAR : 2007 - 08 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCE D IN THE OPEN COURT ON 1 6 /11 /2016 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 16 /11 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT :VINAYAK METAL & MINERALS, N3 - 161, IRC VILLAGE, NAYAPALI, BHUBANESWAR. 2. THE RESPONDENT. ITO, WARD 29(1), BHUBANESWAR 3. THE CIT(A) , - II, BHUBANESWAR 4. CIT , BHUBANESWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//