The Income Tax Office, Ward-1(3), RAJKOT-GUJARAT V. Shri Rajesh A. Boricha, RAJKOT-GUJARAT

MA 13/RJT/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0689 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 19-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: D M RINDANI CA
• Section: 194C

Judgement Text

: , IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. R R . . 1 R . . R1 1 BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM M. A . NO. 13 /RJT/2013 (ARISEN OUT OF THE ORDER IN ITA NO. 1369 /RJT/201 0 ) R R / ASSESSMENT YEAR 200 7 - 0 8 SHRI RAJESH A BORICHA, MANDEEP CHAMBERS, KUVADAVA ROAD, RAJKOT PAN : AGMPB 7158 E ( / APPELLANT) THE I.T.O., WARD 1(3 ), RAJKOT A / RESPONDENT REI / ASSESSEE BY SHRI D. M. RINDANI, CA U I / REVENUE BY SHRI K. C. MATHEWS, DR. I / DATE OF HEARING 27. 0 5. 2013 I / DATE OF PRONOUNCEMENT 26 . 0 7. 2013 / OR DER R . . , 1 / T. K. SHARMA, J. M. : THIS MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE READS AS UNDER: - THE FACTS LEADING TO THIS APPLICATION MAY BE STATED AS UNDER: - 1 . THE SAID ORDER OF THE HONBLE TRIBUNAL ARISES FROM THE ONLY SUB STANTIVE GROUND OF APPEAL RAISED BY REVENUE IN ITS SAID APPEAL WHEREBY THE REVENUE WAS AGGRIEVED BY DELETION OF DISALLOWANCE OF RS.80,41,529/ - BY THE FIRST APPELLATE AUTHORITY. THUS, THE ORDER OF THE SAID AUTHORITY AND FINDINGS THEREOF WERE CHALLENGED BY T HE REVENUE. 2 . THE ORDER OF THE FIRST APPELLATE AUTHORITY CLEARLY REVEALS THAT THE ASSESSEE ARGUED THAT HE WAS ONLY A TRANSPORT COMMISSION AGENTS AND AS SUCH THERE WAS NO LIABILITY UPON HIM TO DEDUCT TAX AT SOURCE U/S 194C OF THE ACT. SEVERAL DECISIONS RELIE D UPON BY THE ASSESSEE HAVE ALSO BEEN CITED BY THE FIRST APPELLATE AUTHORITY WHILE GIVING THIS FINDINGS IN PARA 3.3 OF HIS ORDER THAT THE ASSESSEE BEING A TRANSPORT AGENT, THERE WAS NO LIABILITY UPON HIM TO DEDUCT TAX AT SOURCE AND THEREFORE PROVISIONS OF SEC. 40(A)(IA) WOULD NOT BE APPLICABLE TO HIM. 3 . IN ADDITION TO ABOVE, IT WAS ALSO CONTENDED BEFORE THE FIRST APPELLATE AUTHORITY THAT NO AMOUNT BEING PAYABLE AT THE END OF THE YEAR, FOR THIS REASON ALSO THE PROVISIONS OF SEC. 40(A)(IA) WERE NOT APPLICABLE . 4 . DURING THE COURSE OF HEARING BEFORE THE HONBLE TRIBUNAL, THE ORDER OF FIRST APPELLATE AUTHORITY WAS SUPPORTED BY THE A.R. OF THE APPELLANT. APART FROM IT, RELIANCE WAS ALSO PLACED ON THE DECISION OF THE SPECIAL BENCH AT 20 TAXMANN.COM 244. MA 13 - RJT - 2013 - RAJESH A BARICHA 2 5 . WHILE GIVIN G ITS FINDINGS IN PARA 4 OF ITS ORDER, THE HONBLE TRIBUNAL HAS DEALT WITH THE SAID DECISION OF SPECIAL BENCH AND DISMISSED THE APPEAL OF THE REVENUE BY STATING THAT WE DECLINE TO INTERFERE IN THE ORDER OF THE LD. C.I.T.(A). HOWEVER, THE HONBLE TRIBUNAL HAS NOT ADJUDICATED UPON THE OTHER GROUND DEALT WITH BY THE C.I.T. (APPEALS) BASED ON THE FINDINGS GIVEN BY THE C.I.T.(APPEALS) THAT THE ASSESSEE WAS A TRANSPORT COMMISSION AGENT AND FOR THAT REASON THE PROVISIONS OF SEC.40(A)(IA) WERE NOT APPLICABLE TO H IM. IT HAS BEEN NOTED BY THE HONBLE TRIBUNAL IN PARA 3 OF ITS ORDER THAT THE LD D.R. SUPPORTED THE ASSESSMENT ORDER. 6 . IN VIEW OF THE FACT THAT THE FINDINGS OF THE C.I.T.(APPEALS) FOR ALLOWING THE APPEAL HAVE NOT BEEN CONSIDERED BY THE HONBLE TRIBUNAL AND FURTHER THAT THE SAID FINDINGS HAVE NOT BEEN CHALLENGED BY THE REVENUE BEFORE THE HONBLE TRIBUNAL, IT IS MOST RESPECTFULLY SUBMITTED THAT IT AMOUNTS TO MISTAKE APPARENT ON RECORD. THEREFORE, THE SAID ORDER MAY KINDLY BE RECTIFIED APPROPRIATELY. 2. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE APPEAL WAS FILED BY THE REVENUE BEING ITA NO.1369/RJT/2010 ON THE FOLLOWING GROUNDS: - 1. THE COMMISSIONER OF INCOME - TAX (A), RAJKOT HAS ERRED ON FACTS AND IN LAW IN DELETING THE DISALLOWANCE MADE AS UNDER: I ) U/S 40(A)(IA) OF THE ACT (194C) RS.80,41,529/ - TOTAL RS.80,41,529/ - 2. ON THE FACTS OF THE CASE THE COMMISSIONER OF INCOME TAX(A) - RAJKOT OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. THE AFORESAID APPEAL WAS DISPOSED OF BY THIS TRIBUNAL BY ITS ORDER DATED 03.08.2012. THE OPERATING PORTION OF THE AFORESAID ORDER READS AS UNDER: - WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE RECORD AVAILABLE BEFORE US AND ALSO GONE THROUGH THE RECORDS OF AUTHORITIES BELOW AND THE TRIBUNAL DECISION CITED BY THE LD AR OF THE ASSESSEE. SINCE IN THE BALANCE SHEET SUBMITTED BY THE LD AR AS ON 31.03.2007, NO AMOUNT IS OUTSTANDING AS PAYABLE IN RESPECT OF TRUCK FREI GHT EXPENSES DISALLOWED BY THE AO U/S 40(A)(IA), NO DISALLOWANCE COULD BE MADE AS PER THIS DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL CITED BY THE LD AR OF THE ASSESSEE HAVING BEEN RENDERED IN THE CASE OF MERILYN SHIPPING & TRANSPORT (SUPRA). RESPECTFUL LY FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL, WE DECLINE TO INTERFERE IN THE ORDER OF THE LD CIT(A). 4. THE AFORESAID ORDER PASSED BY THIS TRIBUNAL WAS CHALLENGED BY THE REVENUE BEFORE THE HONBLE HIGH COURT. BY ITS ORDER DATED 02.05.2 013 IN CIT V. RAJESH A BOR ICHA, TAX APPEAL NO.832 OF 2012; THE HONBLE HIGH COURT HAS SET MA 13 - RJT - 2013 - RAJESH A BARICHA 3 ASIDE THE AFORESAID ORDER PASSED BY THIS TRIBUNAL AND REMANDED THE MATTER BACK TO THE FILE OF THIS TRIBUNAL WITH THE FOLLOWING OBSERVATIONS: - 38. IN THE RESULT, WE ARE OF THE OPINION THAT SECTION 40(A)(IA) WOULD COVER NOT ONLY TO THE AMOUNTS WHICH ARE PAYABLE AS ON 31 ST MARCH OF A PARTICULAR YEAR BUT ALSO WHICH ARE PAYABLE AT ANY TIME DURING THE YEAR. OF COURSE, AS LONG AS THE OTHER REQUIREMENTS OF THE SAID PROVISIO N EXIST. IN THAT CONTEXT, IN OUR OPINION THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. MERILYN SHIPPING & TRANSPORTS VS. ACIT (SUPRA), DOES NOT LAY DOWN CORRECT LAW. 39. WE ANSWER THE QUESTION AS UNDER: - QUESTION (1) IN THE NEGATI VE I.E. IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEES. QUESTION (2) ALSO IN THE NEGATIVE I.E. IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEES. 40. ALL TAX APPEALS ARE ALLOWED. DECISIONS OF THE TRIBUNAL UNDER CHALLENGE ARE REVERSED. IN THE EARLIE R PORTION OF THE JUDGMENT, WE HAD RECORDED THAT THE TRIBUNAL IN ALL CASES HAD PROCEEDED ONLY ON THIS SHORT BASIS WITHOUT ADDRESSING OTHER ISSUES. WE, THEREFORE, PLACE ALL THESE MATTERS BACK BEFORE THE TRIBUNAL FOR FRESH CONSIDERATION OF OTHER ISSUES, IF AN Y, REGARDING DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. ALL APPEALS ARE DISPOSED OF ACCORDINGLY. 5. THE APPEAL , AS ORIGINALLY FILED BY THE REVENUE , THUS STANDS RESTORED AS PER THE ORDER OF THE HONBLE HIGH COURT. IN THIS VIEW OF THE MATTER, THE MIS CELLANEOUS APPLICATION FILED BY THE ASSESSEE SEEKING RECALL OF THE AFORESAID ORDER HAS BECOME INFRUCTUOUS AS THE APPEAL FILED BY THE REVENUE IS RESTORED BY THE HONBLE HIGH COURT. 6. FOR STATISTICAL PURPOSES, THE MISCELLANEOUS APPLICATION SHALL BE TREATE D AS ALLOWED. SD/ - SD/ - ( . . U D. K. SRIVASTAVA ) ( . . R / T. K. SHARMA) / ACCOUNTANT MEMBER U / JUDICIAL MEMBER / ORDER DATE 26 . 0 7. 2013. /RAJKOT * BT MA 13 - RJT - 2013 - RAJESH A BARICHA 4 T JO O / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT - SHRI RAJESH A BORICHA, MANDEEP CHAMBERS, KUVADAVA ROAD, RAJKOT 2 . A / RESPONDENT - THE I.T.O., WARD 1(3), RAJKOT 3 . : T / CONCERNED CIT - I, RAJKOT 4 . T - / CIT (A) - I, RAJKOT 5 . : , : , / DR, ITAT, RAJKOT 6 . R / GUARD FILE. / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT