Middle East Leathers, CHENNAI V. ACIT, CHENNAI

MA 107/CHNY/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0473 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T N BETGIRI
• Assessee Lawyers: ABDUL RAHIM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI BEFORE SHRI DR. O.K. NARAYANAN, VICE PRESIDENT AND SHRI S.S. GODARA, JUDICIAL MEMBER M.P. NO.107/MDS/2013 IN (I.T.A. NO. 1874/MDS/2012) ASST. YEAR : 2005-06 M/S. MIDDLE EAST LEATHERS, OLD NO.11, NEW NO.232, AMLA MOOR APT., II FLOOR, VEPERY, PERIAMET, CHENNAI-600 003. PAN : AABFM2341N. (PETITIONER) V. THE ASST. COMMISSIONER OF INCOME TAX, BUSINESS RANGE IV, CHENNAI. (RESPONDENT) PETITIONER BY : SHRI ABDUL RAHIM, CA RESPONDENT BY : SHRI TN BETGIRI, JCIT DATE OF HEARING : 12 JULY 2013 DATE OF PRONOUNCEMENT : 12 JULY 2013 O R D E R PER S.S. GODARA, JUDICIAL MEMBER : THE INSTANT MISCELLANEOUS PETITION UNDER SEC.254(2 ) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), HAS BEEN FILED BY THE MP NOS.107/MDS/2013 2 ASSESSEE, FOR ASSESSMENT YEARS 2005-06, SEEKING REC TIFICATION OF THE ORDER OF THE TRIBUNAL DATED 18.4.2013 IN ITA NO.187 4/MDS/2012. 2. THE CONTENTS OF THE PETITION READ AS UNDER :- T H E PET I TIONER DID FIN I SHED LEATHER AND LEATHER GARMENT BUSINESS. IN THE A SSESS M ENT 2005-2006, THE NEW PROV I SIONS OF INCOME TA X W E RE I NTROD U C E D WH ER E B Y HE HAD TO DEDUCT TDS ON COMMISS I O N AND BRO K ERAGE PAID BY H I M. THI S BE I NG THE FIRST YEAR OF THESE NEW PROVISIONS , THE APPELLANT WAS NOT AWARE OF DE DUCT I NG TDS ON COMMISSION AND BROKERAGE PA I D OF RS.19,07,798/-.TH E P A Y ME N TS HAVE ALL BEEN MADE DIRECTLY TO THE AGENTS BY W AY OF ACCOU N T PAY EE CH EQUE S . THE R E IS NO MALA F I DE I NTENTION ON THE PART OF THE PETIT I ONE R FO R NOT DEDUCTI N G TAX AT SOURCE. THE DEDUCTEES ARE RE G ULAR ASSESSES WHO HAVE DECLARED TH E C OMM I SS I ON RECEIP T S I N THEIR HANDS. T HE PETITIONER SUBM I TS THAT THE PAYMENTS HAVE BEEN PA I D BY ACCO U NT P A YEE C HEQUES AND NOTHING WAS PAYAB L E ON 31 . 3.2005. THE PETITIONER CITED ITA 4 77 - VIZ/2008 (MERILYN SH I PPING AND T R ANSPORTS , VISAKHAPATNAM VS. ACIT , W HERE I N I T W AS HE L D THAT SEC . 40A(1)(A) I S APP LI CAB L E ONLY TO E X PENDITUR E W HIC H RE MA I NS PAYABLE O N 31 ST O F MARCH EVERY YEAR. HE A L SO FURNISHED A COPY OF THE JUDGMENT IN SUPPORT. IN VIEW OF THE ABOVE, HE APPEALED FOR QUASHING THE DIS ALLOWANCE OF BROKERAGE AND COMMISSION. THE COMMISSIONER OF INCOM E TA X (APPEALS) ALLOWED THE APPEAL IN FAVOUR OF THE PETIT IONER. THE DEPARTMENT WENT ON APPEAL BEFORE THE HON'BLE TRIBUN AL WHICH ALLOWED THE REVENUE APPEAL CITING THE JUDGMENT IN I TAT NO.31 OF 13 GA NO.320 OF 2013, CIT VS. MD . JAKIR HOSSAIN MONDAL DATED 4 T H APRIL 2013. THE PETITIONER UNDERSTANDS THAT THE JUDGMENT CITED BY HIM HAS BEEN APPEALED AGAINST BY THE DEPARTMENT BEFORE THE HON'BLE HIGH COURT, AND THERE FORE, THE HON'BLE TRIBUNAL RELIED UPON THE JUDGMENT CITED BY THE DEPARTMENT. AS THE CASE LAW CITED BY THE PETITIONER IS UNDER AP PEAL BEFORE THE HON'BLE HIGH COURT, THE PETITIONER HEREB Y SUBMITS THAT THE PRESENT ORDER OF THE HON'BLE TRIBUNAL BE KEPT I N ABEYANCE UNTIL THE REVENUE APPEAL IN THE CASE OF MERILYN SHIPP I NG AND TRANSPORTS, VISAKHAPATNAM VS. ACIT (16 ITR (TRIB) ( L)(SB) IS DECIDED BY THE HON'BLE HIGH COURT. MP NOS.107/MDS/2013 3 3. IN THE COURSE OF HEARING IT IS NOTICED THAT THE ASSESSEE HAS FILED AN ADJOURNMENT PETITION PRAYING THEREIN T HAT THE RELEVANT DETAILS ARE YET TO BE GATHERED. 4. WE HAVE CONSIDERED THE PRAYER MADE IN THE PETIT ION. IT TRANSPIRES THAT IN THE COURSE OF ASSESSMENT, THE AS SESSING OFFICER HAD INVOKED SEC.40(A)(IA) OF THE ACT LEADING TO DISALLO WANCE/ADDITION IN QUESTION OF ` .19,07,798/- QUA COMMISSION AMOUNT FOR NON DEDUCTIO N OF TDS. IN ASSESSEES APPEAL THE COMMISSIONER OF I NCOME TAX (APPEALS) HAS ACCEPTED ITS CONTENTIONS BY FOLLOWING THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN M/S. MERLIN SHIPPING & TRANSPORT V. ACIT (60 ITR 1)(SB) AND HELD THAT AS PER THE DISTINCTION DRAWN THEREIN, THE DISALLOWANCE WOULD BE CONFINED TO THE EXPENSES PAYA BLE AS ON 31 ST MARCH. IN REVENUES APPEAL, WE HAVE RESTORED THE A DDITION BY HOLDING THAT THE HON'BLE CALCUTTA HIGH COURT IN THE CASE LAW OF CIT V. MD. JAKIR HOSSAIN MONDAL, IN ITAT 31 OF 2013 G.A. N O.320 OF 2013 DATED 04.4.2013 HAS HELD THAT THE SPECIAL BENCH DEC ISION IS NOT A MP NOS.107/MDS/2013 4 CORRECT LAW. IT IS IN THIS BACK DROP OF FACTS THE ASSESSEE HAS FILED THE INSTANT PETITION. 5. AFTER GIVING OUR THOUGHTFUL CONSIDERATION WE AR E OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM THE REC ORDS SO AS TO WARRANT RECTIFICATION IN THE ORDER DATED 18.4.2013. THEREFORE, WE REJECT THE ADJOURNMENT PETITION AS WELL AS THE MAIN MISC. PETITION. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AFTER HEARING ON FRIDAY, THE 12 TH DAY OF JULY 2013, AT CHENNAI. SD/- SD/- ( DR. O.K. NARAYANAN) ) ( S.S. GODARA ) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED : 12 TH JULY 2013 JLS. COPY TO:-APPELLANT/RESPONDENT/CIT(A)/CIT/DR/GUARD F ILE.