SHRI SHASHI AGRAWAL, Indore V. THE ITO 1(1), Ujjain

ITA 86/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5730 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 12-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K BHATIA
• Assessee Lawyers: N D PATWA S

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 86/IND/2015 A.Y. : 2009-10 SHRI SHASHI AGRAWAL, ITO, PROP. M/S. AGRAWAL PACKAGING INDUSTRIES, VS. 1(1), UJJAIN INDORE. APPELLANT RESPONDENT PAN NO. AKIPA7149Q A PPELLANT S BY : SHRI ASHISH GOYAL AND SHRI N. D. PATWA, ADVOCATES RESPONDENT BY : SHRI R.K. BHATIA, DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A), UJJAIN, DATED 19.11.2014 FOR THE ASSESSM ENT YEAR 2009-10. DATE OF HEARING : 25 .02. 20 16 DATE OF PRONOUNCEMENT : 25 .0 2 . 201 6 SHRI SHASHI AGRAWAL, INDORE VS. ITO, 1(1), UJJAIN. I.T.A.NO. 86/IND/2015 - A.Y. 2009-10 2 2 2. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS GROUND NO. 3, WHICH READS AS UNDER :- THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING TH E ADDITION U/S 40(A)(IA) OF RS. 5,40,220/-. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS MANUFACTURING CORRUGATED BOXES. THE ASSESSEE HAS FI LED THE RETURN OF INCOME ON 4.9.2009. THE AO HAS MADE THE A DDITION OF RS. 5,40,229/- ON ACCOUNT OF NON-DEDUCTION OF TD S. THE ASSESSEE HAS FILED THE APPEAL BEFORE THE CIT(A) AND THE LD. CIT(A) HAS DISMISSED THE APPEAL. 4. THE LD. AUTHORIZED REPRESENTATIVE DURING THE COURSE OF HEARING SUBMITTED THAT THE ASSESSEE HAS MADE PAYMEN T OF PRINTING JOB WORK WITHOUT DEDUCTING THE TDS. THE AS SESSEE SUBMITTED THAT ALL PAYMENTS WERE BELOW RS. 20,000/- ON DIFFERENT DATES AND WHICH WERE NOT LIABLE FOR TDS. BUT HOWEVER, THE ASSESSEE SUBMITTED THAT THE ASSESSEE T O WHOM THE PAYMENT HAS BEEN MADE, THEY HAVE ALREADY ACCOUN TED FOR THIS INCOME IN THEIR RETURN OF INCOME AND THEY HAVE ALREADY PAID THE TAXES. THEREFORE, AS PER THE AMENDMENT IN SECTION 40(A)(IA) WHEN THE DEDUCTEE HAS ALREADY SHOWN HIS I NCOME, SHRI SHASHI AGRAWAL, INDORE VS. ITO, 1(1), UJJAIN. I.T.A.NO. 86/IND/2015 - A.Y. 2009-10 3 3 THEN NO DISALLOWANCE CAN BE MADE FOR SHORT DEDUCTIO N OF THE TAX. 5. THE LD. DR HAS NO OBJECTION IF THE MATTER IS RESTOR ED TO AO FOR VERIFICATION. 6. I HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER HEARING TH E RIVAL SUBMISSIONS AND GOING THROUGH THE ORDERS OF THE TAX AUTHORITIES, I NOTED THAT THE CASE OF THE ASSESSEE IS DULY COVERED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILLY & CO. (INDIA) (P) LTD. (2009) 312 ITR 225 (SC), WHEREIN, IT HAS BEEN HELD THAT THE PERIOD OF DEFAULT STARTS FROM DATE OF DEDUCTIBILITY OF TAX TILL DATE OF ITS ACTUAL PAYMENT BY THE CONCERNED EMPLOYEE AND ALSO IN THE CASE OF M /S. HINDUSTAN COCA COLA BEVERAGE PVT. LTD. VS. CIT (200 7) 293 ITR 226 (SC), WHEREIN, IT HAS BEEN HELD THAT WHEN THE T AX HAS BEEN PAID BY THE DEDUCTEE-ASSESSEE, THE TAX COULD N OT BE RECOVERED ONCE AGAIN FROM THE ASSESSEE. ALL FACTS A RE NOT BORNE OUT FROM THE ASSESSMENT ORDERS AND THE LD. CIT(A) H AS ALSO NOT VERIFIED THE SAME. THEREFORE, IN THE INTEREST OF JU STICE AND FAIR PLAY, I RESTORE THIS MATTER BACK TO THE FILE OF AO WITH THE SHRI SHASHI AGRAWAL, INDORE VS. ITO, 1(1), UJJAIN. I.T.A.NO. 86/IND/2015 - A.Y. 2009-10 4 4 DIRECTION THAT THE AO SHALL VERIFY WHETHER THE PAYM ENT SHOWN IN THE ASSESSMENT ORDER IS LIABLE FOR TDS OR NOT. S ECONDLY, IF THERE IS ANY SHORT DEDUCTION OF TAX OR NOT AND IF T HERE IS ANY SHORT DEDUCTION OF TAX THAN THE RECEIPT AND THE PAY EE HAS PAID THE TAX OR NOT AND THEY HAVE SHOWN IN THE RETURN OF INCOME HAS TO BE VERIFIED FROM THE CONCERNED ASSESSES. THE REFORE, THIS ALL REQUIRES VERIFICATION AT THE END OF AO. THE AO AND LD. CIT(A) SHOULD HAVE VERIFIED THESE FACTS BEFORE MAKING THE ASSESSMENT AND LD. CIT(A) SHOULD HAVE ALSO DONE THIS EXERCISE. I FOUND BOTH THE AUTHORITIES HAVE FAILED TO DO SO. THEREFOR E, IN THE INTEREST OF JUSTICE AND FAIR PLAY, I RESTORE BACK T HIS ISSUE TO THE FILE OF AO AND THE AO IS DIRECTED TO VERIFY WHETHER ANY SHORT DEDUCTION OF TAX OR NOT AND WHETHER THE ASSESSEE IS LIABLE FOR INTEREST OR NOT AND WHETHER THE DEDUCTEE HAS PAID T AX OR NOT. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE AO A ND HE MUST PRODUCE ALL THE RELEVANT EVIDENCE BEFORE THE AO AND THE AO IS FURTHER DIRECTED TO VERIFY THE SAME AND DECIDE THE MATTER AFRESH KEEPING IN MIND THE DECISIONS OF HON'BLE SUP REME COURT IN THE CASE OF CIT VS. ELI LILLY & CO. (INDIA ) (P) LTD AND HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT (SUPRA) . SHRI SHASHI AGRAWAL, INDORE VS. ITO, 1(1), UJJAIN. I.T.A.NO. 86/IND/2015 - A.Y. 2009-10 5 5 2. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 25 TH FEBRUARY, 2016, SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 25 TH FEBRUARY, 2016. CPU*