DEPUTY COMMISSIONER OF INCOME TAX (TDS) 1(2), MUMBAI V. DEOHLE DAUNTIC INDIA Private LIMITED , MUMBAI

MA 110/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4914 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 14-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Assessee Lawyers: SUBRAMANIAN
• Keywords: TDS; Set aside

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 110 /MUM/201 8 ARISING OUT OF ITA NO. 4277/MUM/2015 ASSESSMENT YEAR 2012 - 1 3 DEPUTY CO MMISSIONER OF INCOME - TAX(TDS) - 1(2) ROOM NO. 811 , 8 TH FLOOR, SMT. K.G.MITTAL AYURVEDIC HOSPITAL BUILDING MUMBAI - 400 0 02 V. DOEHLE DAUNTIC INDIA PRIVATE LIMITED (NOW ELEKTRANS SHIPPING PRIVATE LIMITED) 109 - 111, SHALIMAR MORYA PARK OFF LINK ROAD, ANDHERI(WEST) MUMBAI - 4000 53 APPLICANT RESPONDENT PAN AABCD3271G REVENUE BY SHRI SATISH CHANDRA RAJORE , DR RESPONDENT BY SHRI SUBRAMANIAN DATE OF HEARING : 17 - 05 - 2019 DATE OF PRONOUNCEMENT : 17 - 05 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE REVENUE HAS FILED THIS MISCELLANEOUS APPLICATION(MA) IN MA NO. 110/MUM/2018 ARISING OUT OF ASSESSEES APPEAL IN ITA NO. 4277 / MUM/201 5 FOR ASSESSMENT YEAR 201 2 - 13 WHICH WAS DISPOSED OF ON MERIT BY INCOME - TAX APPELLATE TRIBUNAL, D BENCH, MUMBAI (HER EINAFTER CALLED THE TRIBUNAL ) VIDE APPELLATE ORDERS DATED 24.07.2017. THERE W AS NO REPRESENTATION BEFORE THE TRIBUNAL ON BEHALF OF THE ASSESSEE WHEN THE ASSESSEES APPEAL FOR AY 2012 - 13 IN ITA NO. 4277/MUM/2015 CAME UP FOR HEARING BEFORE TRIBUNAL ON 02.05.2017. THE TRIBUNAL HEARD THE ARGUMENTS OF LEARNED DR AND THEN ALSO BASED ON M ATERIAL ON RECORD DECIDED THE ISSUES IN APPEAL ON MERITS. THE TRIBUNAL VIDE ITS ORDER DATED 24.07.2017 TOOK A CONSCIOUS DECISION ON MERITS AFTER APPRECIATING FACTS OF THE CASE WHEREIN FINDING OF THE LEARNED CIT(A) THAT THE PAYMENTS MADE BY THE ASSES SEE TO THE SAID CREW MEMBERS WERE HELD TO BE PAYMENT FOR FEES FOR TECHNICAL MA NO. 110/MUM/2018 ARISING OUT OF ITA NO.4277/MUM/2015 2 SERVICES/PROFESSIONAL SERVICES WHICH IS COVERED U/S 194J OF THE INCOME - TAX ACT,1961 FOR DEDUCTIBILITY OF INCOME TAX AT SOURCE UNDER CHAPTER XVII - B OF THE 1961 ACT , WERE UPHELD. THERE WERE SOME CLAIMS RAISED BY THE ASSESSEE IN STATEMENT OF FACTS FILED BEFORE LEARNED CIT(A) AS TO PAYMENT MADE TO CREW MEMBERS DEPLOYED WITH SCI OUT OF TOTAL PAYMENTS MADE BY THE ASSESSEE FOR WHICH NO FINDING S WERE GIVEN BY LEARNED CIT(A) AND FOR LIMITED P URPOSES , THE MATTER WAS REMITTED BACK TO THE AO FOR VERIFYING THE CONTEN TIONS OF THE ASSESSEE AND TO PASS ORDERS ACCORDINGLY. THE DETAILED ORDER WAS PASSED BY TRIBUNAL DATED 24.07.2017 WHEREIN CONCLUSION ON ALL ISSUES WERE DELIBERATED IN PARA 7 BY THE TR IBUNAL . NOW , THE REVENUE HAS FILED THIS MA AND IT IS PLEADED IN THE MA THAT IN THE PRECEDING YEAR I.E. AY 2011 - 12, THE TRIBUNAL WHILE ADJUDICATING APPEAL OF THE ASSESSEE IN ITA NO. 381/MUM/2015 DATED 05.12.2016 HAD SET ASIDE THE ENTIRE ISSUE TO THE FIL E OF THE AO TO RE - ADJUDICATE DE - NOVO WITHOUT ANY CONCLUSIVE FINDING S ON MERIT , WHILE IN THIS YEAR I.E AY 2012 - 13 THE TRIBUNAL HAS DECIDED THE ISSUE ON MERITS . IT WAS PRAYED THAT TRIBUNAL ORDER FOR PRECEDING YEAR BE FOLLOWED AND THE AO BE ALLOWED TO DECIDE ALL ISSUES DENOVO. FIRST OF ALL, THIS ORDER OF THE TRIBUNAL FOR AY 2011 - 12 WAS NEVER CITED BY REVENUE BEFORE ITAT WHEN THE ASSESSEES APPEAL FOR AY 2012 - 13 WAS HEARD BEFORE THE TRIBUNAL ON 02.05.2017. SEC ONDLY, THE REVENUE AT THIS STAGE ALSO COULD NOT POI NT OUT BEFORE THE BENCH AS TO WHAT IS MISTAKE APPARENT FROM RECORDS IN THE SAID ORDER DATED 24.07.2017 PASSED BY THE TRIBUNAL FOR AY 2012 - 13 . IT COULD NOT BE POINTED OUT BY LEARNED DR AS TO WHAT IS SPECIFIC MISTAKE APPARENT FROM RECORD WHICH NEEDS TO BE C ORRECTED WITHIN LIMITED MANDATE OF SECTION 254(2) OF THE 1961 ACT . THE LEARNED COUNSEL FOR THE ASSESSEE HAS A LSO AGREED THAT THERE IS NO MIS TAKE APPARENT FROM RECORD IN THE APPEAL ORDER DATED 24.07.2017 PASSED BY TRIBUNAL FOR AY 2012 - 13 WHICH COULD BE CO RRECTED U/S 254(2) OF THE 1961 ACT . IN PRECEDING YEAR, THE TRIBUNAL HAS NOT GIVEN CONCLUSIVE FINDING ON THE ISSUE ON MERITS BUT IN THE INSTANT YEAR CONCLUSIVE FINDINGS ON MERIT ARE GIVEN BASED ON MATERIAL ON RECORDS AND AFTER HEARING OF THE ARGUMENT OF THE LEARNED DR WHEN THE APPEAL WAS HEARD ON 02.05.2017 AS ARE CONTAINED IN PARA 7 OF THE MA NO. 110/MUM/2018 ARISING OUT OF ITA NO.4277/MUM/2015 3 ORDER . UNDER THESE CIRCUMSTANCES , WE ARE INCLINED TO DISMISS THIS MA FILED BY THE REVENUE AS IT LACKS MERIT AS THERE IS NO MISTAKE APPARENT FROM RECORD WHICH COULD BE CORRECTED WITHIN LIMITED MANDATE OF SECTION 254(2) OF THE 1961 ACT AND SECTION 254(2) DID NOT PERMIT US TO REVIEW OUR OWN ORDER . WE ORDER ACCORDINGLY. 2 . THUS, TH IS M.A. NO. 110 /MUM/201 8 ARISING OUT OF APPEAL IN ITA NO. 4277/MUM/2015 FOR AY 20 12 - 13 FILED BY THE REVENUE IS DISMISSED AS INDICATED ABOVE. ORDER P RONOUNCED IN THE OPEN COURT ON 17.05.2019 17.05 .2019 SD/ - SD/ - ( MAHAVIR SINGH ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 17.05 .2019 COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI