DEPUTY COMMISSIONER OF INCOME TAX (TDS) 1(2), MUMBAI V. DESTIMONEY ENTERPRISES LTD, MUMBAI

MA 106/MUM/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1453 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 14-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: TDS; Liquidation
• Section: 40(a)(ia); 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.106/M/2018 (ARISING OUT OF ITA NO.4124/M/2015) ASSESSMENT YEAR: 2008-09 DCIT(TDS)-1(2), ROOM NO.811, 8 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., MUMBAI 400 002 VS. M/S. DESTIMONEY ENTERPRISES LTD. (FORMERLY KNOWN AS DESTIMONEY ENTERPRISES PVT. LTD.) SHOP NO.5, SAHJEEVAN CHS, NK JOSHI MARG, NEXT TO YAMAHA SHOWROOM, ELPHISTONE ROAD (WEST), MUMBAI 400 013 PAN: AAACD5100F (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SANDEEP BHALLA, A.R. REVENUE BY : SHRI V. JUSTIN, D.R. DATE OF HEARING : 06.07.2018 DATE OF PRONOUNCEMENT : 23.07.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION THE REVENUE SEEK S THE RECTIFICATION OF CONSOLIDATED ORDER DATED 28.08.2017 PASSED IN ITA NO.4124 & 4125/M/2015 FOR A.Y. 2008-09 & 2009-10 . 2. THE REVENUE HAS CHALLENGED THAT MERE FACT THAT T HE ASSESSEE HAS DISALLOWED EXPENDITURE UNDER SECTION 4 0(A)(IA) OF THE ACT ON ITS OWN TO THE TUNE OF RS.2,83,91,800/- ON MA NO.106/M/2018 (ARISING OUT OF ITA NO.4124/M/2015) M/S. DESTIMONEY ENTERPRISES LTD. (FORMERLY KNOWN AS DESTIMONEY ENTERPRISES PVT. LTD. ) 2 ACCOUNT OF RENT DEBITED IN P&L ACCOUNT WOULD NOT HA VE ABSOLVED THE ASSESSEE FROM THE RESPONSIBILITY TO DE DUCT TDS UNDER SECTION 194(I) AND THEREFORE THE CONSEQUENCES UNDER SECTION 201(1) & 201(1A) HAVE TO FOLLOW. LD. D.R. SUB MITTED THAT THE TRIBUNAL HAS TAKEN A VIEW IN THE SAID ORDE R THAT TDS IS NOT APPLICABLE AS THE ASSESSEE HAS MADE SUO-MOTO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. 3. THE LD. A.R., ON THE OTHER HAND, BROUGHT TO THE NOTI CE OF THE BENCH THE COPY OF THE HONBLE JURISDICTIONAL BO MBAY HIGH COURT ORDER DATED 08.06.2018 IN THE CASE OF CIT-TDS VS. DESTIMONEY ENTERPRISES LTD. IN ITA NO.1111 OF 2018 I TA NO.385 OF 2018 WHEREIN THE RESPONDENT ASSESSEE BY W AY OF TWO APPLICATIONS HAS PRAYED BEFORE THE COURT IN ITA NO.1111 OF 2018 IN A.Y. 2008-09 & IN ITA NO.385 OF 2018 IN A .Y. 2009- 10 THAT THE APPEALS SHOULD BE DISPOSED OF EXPEDITIO USLY AND HAS ALSO SUBMITTED THAT ALL THE TAXES DUE HAVE BEEN PAID AND THEY ARE NOT DESIROUS OF PURSUING THESE APPEALS IN VIEW OF THE ASSESSEE GOING INTO VOLUNTARY LIQUIDATION AS ANY DE LAY IN DECIDING THESE APPEALS WOULD LEAD TO DELAY IN LIQU IDATION OF THE COMPANY FURTHER. ON THE SAID APPLICATIONS, THE HONBLE BOMBAY HIGH COURT HAS RESTORED THE ORDER OF LD. CIT( A) BY GIVING FOLLOWING OBSERVATION. 3. THOUGH THE NUMEROUS QUESTIONS OF LAW HAVE BEEN PROPOSED IN THE TWO APPEALS, THE SAME IS NOT TO BE CONSIDERED BY US. T HIS IN VIEW OF THE FACT THAT THE RESPONDENT HAS GONE FOR THE VOLUNTARY LIQUIDATION A ND THE SAME IS STALLED BECAUSE OF THESE PENDING PROCEEDINGS. THEREFORE, THE APPEL LANT DOES NOT WANT TO CONTEST THE TWO APPEALS OF THE REVENUE. IT IS SUBMITTED BY THE APPELLANT REVENUE THAT BOTH APPEALS BE ALLOWED AND THE TWO ORDERS BOTH DATED 23 RD APRIL, 2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) FOR ASSESSMENT YEARS, 2008-09 AND 2009-10 RESPECTIVELY BE RESTORED. MA NO.106/M/2018 (ARISING OUT OF ITA NO.4124/M/2015) M/S. DESTIMONEY ENTERPRISES LTD. (FORMERLY KNOWN AS DESTIMONEY ENTERPRISES PVT. LTD. ) 3 4. THE LD. A.R. SUBMITTED THAT IN VIEW OF THE SAID OR DER, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE HAS BECOME INFRUCTOUS AND SHOULD BE DISMISSED. 5. AFTER HEARING BOTH THE PARTIES AND FOLLOWING THE MATERIAL ON RECORD INCLUDING THE DECISION OF THE HONBLE HIG H COURT RESTORING THE ORDER OF THE LD. CIT(A) FOR A.Y. 2008 -09 & 2009- 10 RESPECTIVELY, WE ARE OF THE VIEW THAT MA MOVED B Y THE DEPARTMENT HAS BECOME INFRUCTUOUS AND IS DISMISSED ACCORDINGLY AS THE ORDER OF LD. CIT(A) IS RESTORED. SO THE GRIEVANCE OF THE REVENUE IS ADDRESSED AUTOMATICALLY . ORDER PRONOUNCED IN THE OPEN COURT ON 23.07.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 23.07.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.