M/s. Jaypeem Granites Ltd., Hyderabad V. ITO, Ward-14(3), Hyderabad

MA 126/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9027 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 20-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K VISWANATHAM
• Assessee Lawyers: AJAY GANDHI; DAYAKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER MISC. APPLN. NO.125/HYD/2012 (IN ITA NO.372/HYD/2010 : ASSESSMENT YEAR 2 005-06 MISC. APPLN. NO.126/HYD/2012 (IN ITA NO.373/HYD/2010 : ASSESSMENT YEAR 2 006-07 M/S. JAYPEEM GRANITES PRIVATE LIMITED, HYDERABAD ( PAN - AAACJ 8260 C ) (APPLICANT) V/S INCOME TAX OFFICER, WARD 14(3), HYDERABAD (RESPONDENT) APPLICANT BY : SHRI AJAY GANDHI & SHRI DA YAKAR RESPONDENT BY : SHRI K.VISWANATHAM, DR DATE OF HEARING 27.7.2012 DATE OF PRONOUNCEMENT 03.08.2012 O R D E R PER D.KARUNAKARA RAO, ACCOUNTANT MEMBER: BY THESE APPLICATIONS UNDER S.254(2) OF THE INCOM E-TAX ACT, 1961, THE APPLICANT-ASSESSEE SEEKS RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 8 TH JUNE, 2012, INSOFAR AS IT RELATES TO ITA NO.372/HYD/2010 AND 373/HYD/2010 FILED BY THE REVEN UE FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE S AME. 2. LEARNED COUNSEL FOR THE ASSESSEE, REFERRING TO PARA 5 OF THE IMPUGNED ORDER, WHICH CONTAINS THE GROUNDS OF THE A SSESSEE IN ITS APPEALS ITA NO.128 AND 129/HYD/2010 FOR ASSESSMENT YEARS 2005-06 AND 2006-07 AND PARA 14 OF THE IMPUGNED ORDER, WHIC H CONTAINS THE GROUNDS OF THE REVENUE IN ITS APPEALS FOR THE VERY SAME YEARS, MENTIONED THAT GROUNDS NO.2 AND 3 OF THE REVENUES APPEALS AN D GROUNDS NO.3 TO 6 M.A NO.125 7 126/HYD/201 2(IN ITA NO.372-373/HYD/2010) M/S. JAYPEEM GRANITES PVT. LTD., HYDERABA D 2 OF THE ASSESSEES APPEALS SHARE THE SAME ISSUE. HE FURTHER MENTIONED THAT WHILE THE TRIBUNAL HAS GRANTED RELIEF TO THE A SSESSEE IN RESPECT OF THE SAID GROUNDS OF THE ASSESSEE, AS DISCUSSED IN PARA 12 OF THE IMPUGNED ORDER. HOWEVER, IN RESPECT OF THE SAID GROUNDS OF THE REVENUES APPEALS, I.E. GROUNDS NO.2 AND 3 OF THE REVENUE, TRIBUNAL SE T ASIDE THE MATTER TO THE FILE OF THE CIT(A) FOR WANT OF A SPEAKING ORDER . THUS, THE TRIBUNAL HAS TAKEN CONFLICTING VIEWS ON A COMMON ISSUE WHILE DEA LING WITH THE GROUNDS OF THE ASSESSEE AND THE REVENUE. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, OPPOSED THE ABOVE SUBMISSIONS OF THE ASSESSEE. 4. WE HEARD BOTH THE PARTIES AND PERUSED THE RELEV ANT PARAS OF OUR ORDER DATED 8.6.2012 GIVING RISE TO THE PRESENT APPLICATIONS. ON PERUSAL OF PARA 16 OF THE IMPUGNED ORDER, DEALING W ITH THE GROUNDS OF THE REVENUE IN ITS APPEALS, WE FIND THAT THE SAME IS NO T IN HARMONY WITH PARA 12 OF THE SAID ORDER DEALING WITH THE GROUNDS OF TH E ASSESSEE IN ITS APPEALS. ON PERUSAL OF PARA 12, WE FIND THAT IT WA S OBSERVED IN THE CONTEXT OF ASSESSEES APPEALS THAT THE ADVANCES IN QUESTION WERE OF TWO TYPES, NAMELY, TRADE ADVANCES AND OTHERS. SO FAR A S TRADE ADVANCES ARE CONCERNED, WE HAVE GIVEN A FINDING IN PARA 12 OF TH E IMPUGNED ORDER THAT THAT SAME ARE OUTSIDE THE SCOPE OF S.194 OF THE ACT , AND THEREFORE, THE QUESTION OF APPLICABILITY OF PROVISIONS OF S.201 AN D S.201(1A) DOES NOT ARISE. AS FOR OTHER ADVANCES AS WELL, THE ASSESSEE WAS GIVEN RELIEF BY THE TRIBUNAL, RELYING ON THE DECISION OF THE JAIPUR BEN CH OF THE TRIBUNAL IN THE CASE OF ANZ REALITY PVT. LTD. V/S. ITO (120 TTJ 142 ), DULY EXTRACTING THE RELEVANT PARA OF THE SAID DECISION, VIZ. PARA 6, WH ICH IS RELEVANT FOR THE PROPOSITION THAT PAYMENT OF DEPOSITS TO NON-SHAREHO LDERS DOES NOT ATTRACT TDS PROVISIONS OF S.194 OF THE ACT. THEREFORE, AS SESSEE CANNOT BE HELD AS AN ASSESSEE IN DEFAULT UNDER S.201 AND S.201(1A ) OF THE ACT. AS AGAINST THESE FINDINGS IN THE CONTEXT OF THE ASSESS EES APPEALS, WHILE M.A NO.125 7 126/HYD/201 2(IN ITA NO.372-373/HYD/2010) M/S. JAYPEEM GRANITES PVT. LTD., HYDERABA D 3 DEALING WITH THE REVENUES APPEAL ON THIS VERY ISSU E, THE TRIBUNAL VIDE FINDINGS IN PARA 16 HAS SET ASIDE THE MATTER TO THE FILE OF THE CIT(A) FOR WANT OF A SPEAKING ORDER, WHICH IS NOT IN HARMONY W ITH THE FINDINGS GIVEN IN THE CONTEXT OF THE ASSESSEES APPEALS. IN THIS VIEW OF THE MATTER, WE FIND THAT THERE IS MISTAKE IN THE ORDER OF THE TRI BUNAL ON ACCOUNT OF CONFLICTING VIEWS TAKEN IN THE CONTEXT OF ASSESSEE S AND REVENUES APPEALS ON THE VERY SAME ISSUE. ACCORDINGLY, WE REC TIFY OUR ORDER IN SO FAR AS IT RELATES TO REVENUES APPEALS, AND CONSEQU ENTLY, PARAS 15 TO 18 OF OUR ORDER SHOULD BE READ, AFTER RECTIFICATION, A S FOLLOWS- 15. DURING THE PROCEEDINGS BEFORE US, LEARNED COU NSEL FOR THE ASSESSEE ARGUED STATING THAT THE CIT(A) RIGHTLY ALL OWED THE ASSESSEES APPEALS ON THE ISSUE OF APPLICABILITY OF PROVISIONS OF S.2(22)(E) OF THE ACT TO THE TWO KINDS OF ADVANCES -TRADE CREDITS ON ONE SIDE AND PROCESSING CHARGES ON THE OTHER. ON THE OTHER HAND, THE LEARNE D DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STATED THAT THE ORDE R OF THE CIT(A) IS SILENT ON THE ISSUE OF THE APPLICABILITY OF THE PR OVISIONS OF S.2(22)(E) TO THE PAYMENT OF PROCESSING CHARGES. 16. WE HEARD THE PARTIES AND PERUSED THE IMPUGNED ORDERS OF THE LOWER AUTHORITIES AND OTHER MATERIAL ON RECORD. WE FIND ON FACTS, AS NOTED ABOVE, THE CIT(A) COLLECTED THE DETAILS OF AD VANCES AND CATEGORISED THEM INTO TRADE ADVANCES AND PROCESSING CHARGES. S O FAR AS THESE TWO KINDS OF ADVANCES ARE CONCERNED, WE HAVE ALREADY GI VEN OUR ADJUDICATION GIVEN IN THE CONTEXT OF GROUNDS OF APPEAL OF THE AS SESSEE IN PARA 12 HEREINABOVE. IN THE LIGHT OF OUR DISCUSSION IN P ARA 12 ABOVE, SINCE THE ADVANCES GIVEN TOWARDS PROCESSING CHARGES ALSO CONS TITUTE TRADE ADVANCES, THE SAME ARE OUTSIDE THE SCOPE OF THE P ROVISIONS OF S.194. AND CONSEQUENTLY, THE GROUNDS RAISED BY THE REVENUE ARE LIABLE TO BE DISMISSED. CONSEQUENTLY, GROUNDS OF THE REVENUE A RE ACCORDINGLY DISMISSED. M.A NO.125 7 126/HYD/201 2(IN ITA NO.372-373/HYD/2010) M/S. JAYPEEM GRANITES PVT. LTD., HYDERABA D 4 17. IN THE RESULT, BOTH THESE APPEALS OF THE REVEN UE ARE DISMISSED. 18. TO SUM UP, THE APPEALS OF THE ASSESSEE, BEING ITA N OS.128 AND 129/HYD/2012 ARE ALLOWED AND THE APPEALS FILED BY THE REVENUE, BEING ITA NOS.372 AND 373/HYD/2012, ARE DISMISSED. WE MODIFY OUR EARLIER ORDER DATED 8 TH JUNE, 2012 ACCORDINGLY AND TO THIS EXTENT, THE PRESENT APPLICATIONS OF THE ASS ESSEE ARE ALLOWED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATI ONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 3 RD AUGUST, 2012 SD/- SD/- (ASHA VIJAYARAGHAVAN) (D.KARUNAKARA RAO) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 3 RD AUGUST, 2012 COPY FORWARDED TO: 1. M/S. JAYPEEM GRANITES PRIVATE LIMITED, C/O. M/S. GA NDHI & GANDHI, CHARTERED ACCOUNTANTS, 1002 PAIGAH PLAZA, BASHEERBAGH, HYDERABAD 2 . 3. INCOME - TAX OFFICER, WARD 14(3), HYDERABAD COMMISSIONER OF COMMISSIONER OF INCOME-TAX(APPEALS) - II HYDERABAD 4 . COMMISSIONER OF INCOME - TAX (TDS) , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S.