ITO, KARAULI V. RAMESH CHAND CHATRUVEDI, Hindaun City

MA 135/JPR/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5679 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 27-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: S L PODDAR ADV DHK
• Keywords: Rectification of order; Retrospective amendment
• Section: 194C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M.A. NO. 135/JP/2017 (ARISING OUT OF ITA NO. 278/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 INCOME TAX OFFICER, KARAULI. CUKE VS. RAMESH CHAND CHATURVEDI, PROP.- M/S JAI SHIV SHANKAR TIRTH YATRA COMPANY, VARDHMAN NAGAR, HINDAUN CITY, DISTRICT- KARAULI. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABSPC 5329 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/01/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS MISC. APPLICATION HAS BEEN FILED BY THE REVENU E FOR RECTIFICATION OF MISTAKE U/S 254(2) OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT) IN THE ORDER DATED 09/12/2016 IN ITA NO. 278/JP/2016. 2. THE BENCH HAVE HEARD BOTH THE SIDES ON THE MISC. APPLICATION. FROM PERUSAL OF THE ISSUE RAISED IN THE MISC. APPLI CATION, IT IS NOTED THAT THE REVENUES MAIN PLEA IS THAT IN VIEW OF THE DECI SIONS OF HON'BLE SUPREME COURT IN THE CASE OF M/S PALAM GAS SERVICE VS CIT IN CIVIL MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 2 APPEAL NO. 5512 OF 2017, UPHOLDING THE ORDER OF LD. CIT(A) BY THE ITAT IS MISTAKE APPARENT FROM THE RECORD AND THE SAME IS PLEADED TO BE RECTIFIED. THE BENCH ALSO FIND THAT THE LD. CIT(A) H AS DECIDED THIS ISSUE IN HIS ORDER AS UNDER: I HAVE GONE THROUGH ASSESSEES SUBMISSION AND AOS FINDINGS. THE APPELLANT HAS EXPLAINED THAT OUT OF THE TOTAL ADDITION OF RS. 27,40,977/- THE DETAILS OF WHICH WERE SUBMITTED BEFORE THE AO I N THE ASSESSMENT PROCEEDINGS, PROVISION FOR DEDUCTION OF TDS U/S 194 C OF THE I.T. ACT, 1961 ARE NOT APPLICABLE AS THE AMOUNT OF INDIVIDUAL CONT RACT WAS LESS THAN RS. 30000/- & THE TOTAL PAYMENT DURING THE YEAR DOES NO T EXCEEDS RS. 75000/-, HENCE DISALLOWANCE IS NOT PROPER & JUSTIFIED. M/S KOHINOOR PUBLICITY RS.34117 M/S HARE RAMA ADVERTISERS RS. 42600 M/S RAJASTHAN PATIKA RS.61120 M/S GARIMA ADVERTISING RS.66340 M/S BHAGWATI PUBLICITY RS.69133 M/S YASH ADVERTISING RS.69977 TOTAL RS.343287 ON VERIFICATION OF THE SAME WITH THE DETAILS IT IS SEEN THAT THE CONTENTION OF THE APPELLANT IN SO FOR AS M/S KOHINOOR PUBLICITY, M/S HARE RAMA ADVERTISERS, M/S RAJASTHAN PATRIKA, M/S GARIMA ADVE RTISING, M/S BHAGWATI PUBLICITY, M/S YASH ADVERTISING ARE INDIVIDUAL PAYM ENTS NOT EXCEEDING THE PERMISSIBLE LIMITS FOR THE PURPOSES OF TDS U/S 194C . THE AO MADE THE ADDITION ON THE GROUND THAT PROPER OR SATISFACTORY REPLIES WERE NOT SUBMITTED BEFORE HIM THOUGH THE SPECIFIC AMOUNTS WE RE WITHIN THE OVERALL LIMIT OF 75000/- FOR THE ABOVE MENTIONED PARTIES. MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 3 AS REGARD THE PAYMENTS MADE TO M/S CRAFTMAN ADVERT ISEMENT, NEW DELHI FOR RS. 15,61,130/- AND M/S M/S RAM NIWAS ADVERTISE RS FOR RS. 2,63,978/- THE APPELLANT HAS STATED THAT BOTH THE PARTIES HAVE ACCOUNTED FOR THE RECEIPTS TOWARDS ADVERTISEMENT FROM THE APPELLANT I N THEIR BOOKS OF ACCOUNTS 8S HAVE CONSIDERED THE SAME FOR COMPUTATIO N OF TOTAL INCOME DECLARED IN ITR FILED FOR THE ABOVE YEAR HENCE NO D ISALLOWANCE SHOULD BE MADE IN APPELLANTS CASE. IN THIS REGARD HE HAS ALSO RELIED ON THE VARIOUS C ASE LOSE AND THE INTERPRETATION OF THE SECOND PROVISO TO SECTION 40( A) (IA) INTRODUCED BY THE FINANCE ACT 2012 WITH EFFECT FROM 1.4.2013 RWS 201. IN A RECENT JUDGEMENT, THE INCOME TAX APPELLATE TR IBUNAL DELHI 'A' BENCH IN THE CASE OF ASSTT. COMMISSIONER OF INCOME TAX, VS A&A EARTHMOVERS PVT. LTD., IN C.O. NO. 177/DEL/2013 (IN I.T.A.NO.2098/DEL/2013),WHILE ANALYSING VARIOUS DEC ISIONS AND SPECIALLY THAT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS RAJINDER KUMAR (362 ITR 241) MENTIONED THAT THEIR LORDSHIPS OBSERVED THAT, 'THE OBJECT OF INTRODUCTION OF SECTION 40(A)(IA) IS TO ENSURE THAT TDS PROVISIONS ARE SCRUPULOUSLY IMPLEMENTED WITHOUT DEFAULT IN ORDER T O AUGMENT RECOVERIES..FAILURE TO DEDUCT TDS OR DEPOSIT TDS RESULTS IN LOSS OF REVENUE AND MAY DEPRIVE THE GOVERNMENT OF THE TAX DUE AND P AYABLE ' (EMPHASIS BY UNDERLINING SUPPLIED BY US)'. HAVING NOTED THE UNDE RLYING OBJECTIVES, THEIR LORDSHIPS ALSO PUT IN A WORD OF CAUTION BY OBSERVIN G THAT, 'THE PROVISION SHOULD BE INTERPRETED IN A FAIR, JUST AND EQUITABLE MANNER'. THEIR LORDSHIPS THUS RECOGNIZED THE BIGGER PICTURE OF REALIZATION O F LEGITIMATE TAX DUES, AS OBJECT OF SECTION 40(A)(IA) AND THE NEED OF ITS FAI R, JUST AND EQUITABLE INTERPRETATION. THIS APPROACH IS QUALITATIVELY DIFF ERENT FROM PERCEIVING THE OBJECT OF SECTION 40FA)(IA) AS AWARDING OF COSTS ON THE 'ASSESSEES WHO FAIL TO COMPLY WITH THE RELEVANT PROVISIONS BY CONSIDERING OVERALL OBJECTIVE OF MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 4 BOOSTING TDS COMPLIANCE'. NOT ONLY THE CONCLUSIONS ARRIVED AT BY THE SPECIAL BENCH(IN BHARATI SHIPYARD LTD. CASE) WERE DISAPPROV ED BUT THE VERY FUNDAMENTAL ASSUMPTION UNDERLYING ITS APPROACH, I.E . ON THE ISSUE OF THE OBJECT OF SECTION 40(A)(IA), WAS ITA NO. 2098/D/201 3 & CO NO. 177/D/13 AY: 2009-10 REJECTED TOO. IN ANY EVENT, EVEN GOING BY B HARTI SHIPYARD DECISION (SUPRA), WHAT WE HAVE TO REALLY EXAMINE IS WHETHER 2012 AMENDMENT, INSERTING SECOND PROVISO TO SECTION 40(A)(IA), DEAL S WITH AN 'INTENDED CONSEQUENCE' OR WITH AN 'UNINTENDED CONSEQUENCE'. 7. THE ITAT STATED THAT WHEN WE LOOK AT THE OVERAL L SCHEME OF THE SECTION AS IT EXISTS NOW AND THE BIGGER PICTURE AS IT EMERGES AFTER INSERTION OF SECOND PROVISO TO SECTION 40(A)(IA), IT IS BEYOND DOUBT TH AT THE UNDERLYING OBJECTIVE OF SECTION 40(A)(IA) WAS TO DISALLOW DEDUCTION IN R ESPECT OF EXPENDITURE IN A SITUATION IN WHICH THE INCOME EMBEDDED IN RELATED P AYMENTS REMAINS UNTAXED DUE TO NON DEDUCTION OF TAX AT SOURCE BY TH E ASSESSEE. IN OTHER WORDS, DEDUCTIBILITY OF EXPENDITURE IS MADE CONTING ENT UPON THE INCOME, IF ANY, EMBEDDED IN SUCH EXPENDITURE BEING BROUGHT TO TAX, IF APPLICABLE. IN EFFECT, THUS, A DEDUCTION FOR EXPENDITURE IS NOT AL LOWED TO THE ASSESSEES, IN CASES WHERE ASSESSEES HAD TAX WITHHOLDING OBLIGATIO NS FROM THE RELATED PAYMENTS, WITHOUT A.Y. 2007-08 CORRESPONDING INCOME INCLUSION BY THE RECIPIENT THAT IS THE CLEARLY DISCERNABLE BIGGER PI CTURE, AND, UNMISTAKABLY, A VERY PRAGMATIC AND FAIR POLICY APPROACH TO THE ISSU E - HOWSOEVER BELATED THE REALIZATION OF UNINTENDED AND UNDUE HARDSHIPS TO TH E TAXPAYERS MAY HAVE BEEN. IT SEEMS TO PROCEED ON THE BASIS, AND RIGHTLY SO, THAT SEEKING TAX DEDUCTION AT SOURCE COMPLIANCE IS NOT AN END IN ITS ELF, SO FAR AS THE SCHEME OF THIS LEGAL PROVISION IS CONCERNED, BUT IS ONLY A MEAN OF RECOVERING DUE TAXES ON INCOME EMBEDDED IN THE PAYMENTS MADE BY TH E ASSESSEE. THAT'S HOW, AS WE HAVE SEEN A SHORT WHILE AGO, HON'BLE DEL HI HIGH COURT HAS VISUALIZED THE SCHEME OF THINGS - AS EVIDENT FROM T HEIR LORDSHIPS' REFERENCE MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 5 TO AUGMENTATION OF RECOVERIES IN THE CONTEXT OF 'LO SS OF REVENUE' AND 'DEPRIVING THE GOVERNMENT OF THE TAX DUE AND PAYABL E'. WITH THE BENEFIT OF THIS GUIDANCE FROM HON'BLE DEL HI HIGH COURT, IN VIEW OF LEGISLATIVE AMENDMENTS MADE FROM TIME TO TIME, WHIC H THROW LIGHT ON WHAT WAS ACTUALLY SOUGHT TO BE ACHIEVED BY THIS LEGAL PR OVISION, AND IN THE LIGHT OF THE ABOVE ANALYSIS OF THE SCHEME OF THE LAW, WE ARE OF THE CONSIDERED VIEW THAT SECTION 40(A)(IA) CANNOT BE SEEN AS INTENDED T O BE A PENAL PROVISION TO PUNISH THE LAPSES OF NON DEDUCTION OF TAX AT SOURCE FROM PAYMENTS FOR EXPENDITURE - PARTICULARLY WHEN THE RECIPIENTS HAVE TAKEN INTO ACCOUNT INCOME EMBEDDED IN THESE PAYMENTS, PAID DUE TAXES T HEREON AND FILED INCOME TAX RETURNS IN ACCORDANCE WITH THE ITA NO. 2 098/D/2013 & CO NO. 177/D/13 AY: 2009-10 LAW. AS A COROLLARY TO THIS PR OPOSITION, IN OUR CONSIDERED VIEW, DECLINING DEDUCTION IN RESPECT OF EXPENDITURE RELATING TO THE PAYMENTS OF THIS NATURE CANNOT BE TREATED AS AN 'IN TENDED CONSEQUENCE' OF SECTION 40(A)(IA). IF IT IS NOT AN INTENDED CONSEQU ENCE I.E. IF IT IS AN UNINTENDED CONSEQUENCE, EVEN GOING BY BHARTI SHIPYA RD DECISION (SUPRA), 'REMOVING UNINTENDED CONSEQUENCES TO MAKE THE PROVI SIONS WORKABLE HAS TO BE TREATED AS RETROSPECTIVE NOTWITHSTANDING THE FAC T THAT THE AMENDMENT HAS BEEN GIVEN EFFECT PROSPECTIVELY'. REVENUE, THUS , DOES NOT DERIVE ANY ADVANTAGE FROM SPECIAL BENCH DECISION IN THE CASE B HARTI SHIPYARD (SUPRA). 9. ON A CONCEPTUAL NOTE, PRIMARY JUSTIFICATION FOR SUCH A DISALLOWANCE IS THAT SUCH A DENIAL OF DEDUCTION IS TO COMPENSATE FOR THE LOSS OF REVENUE BY CORRESPONDING INCOME NOT BEING TAKEN INTO ACCOUNT I N COMPUTATION OF TAXABLE INCOME IN THE HANDS OF THE RECIPIENTS OF TH E PAYMENTS. SUCH A POLICY MOTIVATED DEDUCTION RESTRICTIONS SHOULD, THEREFORE, NOT COME INTO PLAY WHEN AN ASSESSEE IS ABLE TO ESTABLISH THAT THERE IS NO A CTUAL LOSS OF REVENUE. THIS DISALLOWANCE DOES DEINCENTIVIZE NOT DEDUCTING TAX A T SOURCE, WHEN SUCH TAX DEDUCTIONS ARE DUE, BUT, SO FAR A S THE LEGAL FRAME WORK IS CONCERNED, THIS MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 6 PROVISION IS NOT FOR THE PURPOSE OF PENALIZING FOR THE TAX DEDUCTION AT SOURCE LAPSES. THERE ARE SEPARATE PENAL PROVISIONS TO THAT EFFECT. DEINCENTIVIZING A LAPSE AND PUNISHING A LAPSE ARE TWO DIFFERENT THING S AND HAVE DISTINCTLY DIFFERENT, AND SOMETIMES MUTUALLY EXCLUSIVE, CONNOT ATIONS. WHEN WE APPRECIATE THE OBJECT OF SCHEME OF SECTION 40(A)(IA ), AS ON THE STATUTE, AND TO EXAMINE WHETHER OR NOT, ON A 'FAIR, JUST AND EQU ITABLE' INTERPRETATION OF LAW- AS IS THE GUIDANCE FROM HON'BLE DELHI HIGH COU RT ON INTERPRETATION OF THIS LEGAL PROVISION, IN OUR HUMBLE UNDERSTANDING, IT COULD NOT BE AN 'INTENDED CONSEQUENCE' TO DISALLOW THE EXPENDITURE, DUE TO NON DEDUCTION OF TAX AT SOURCE, EVEN IN A SITUATION IN WHICH CORR ESPONDING INCOME IS BROUGHT TO TAX IN THE HANDS OF THE RECIPIENT. THE S CHEME OF SECTION 40(A)(IA), AS WE SEE IT, IS AIMED AT ENSURING THAT AN EXPENDIT URE SHOULD NOT A.Y. 2007- 08 BE ALLOWED AS DEDUCTION IN THE HANDS OF AN ASSES SEE IN A SITUATION IN WHICH INCOME EMBEDDED IN SUCH EXPENDITURE HAS REMAI NED UNTAXED DUE TO TAX WITHHOLDING LAPSES BY THE ASSESSEE. IT IS NOT, IN OUR CONSIDERED VIEW, A PENALTY FOR TAX WITHHOLDING LAPSE BUT IT IS A SORT OF COMPENSATORY DEDUCTION RESTRICTION FOR AN INCOME GOING UNTAXED DUE TO TAX WITHHOLDING LAPSE. THE PENALTY FOR TAX WITHHOLDING LAPSE PER SE IS SEPARAT ELY PROVIDED FOR IN ITA NO. 2098/D/2013 & CO NO. 177/D/13 AY: 2009-10 SECTION 2 71 C, AND, SECTION 40(A)(IA) DOES NOT ADD TO THE SAME. THE PROVISIONS OF SECTION 40(A)(IA). AS THEY EXISTED PRIOR TO INSERTION OF SECOND PROVISO T HERETO, WENT MUCH BEYOND THE OBVIOUS INTENTIONS OF THE LAWMAKERS AND CREATED UNDUE HARDSHIPS EVEN IN CASES IN WHICH THE ASSESSEE'S TAX WITHHOLDING LA PSES DID NOT RESULT IN ANY LOSS TO THE EXCHEQUER. NOW THAT THE LEGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO CURE THESE SHORTCOMINGS OF PROVISION, AND THUS OBVIATE THE UNINTENDED HARDSHIPS, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIVE AMENDM ENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSPECTIVE IN N ATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY, THE INSERTION OF SECOND PROVISO MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIME WHEN T HE RELATED LEGAL PROVISION MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 7 WAS INTRODUCED. IN VIEW OF THESE DISCUSSIONS, AS AL SO FOR THE DETAILED REASONS SET OUT EARLIER, WE CANNOT SUBSCRIBE TO THE VIEW TH AT IT COULD HAVE BEEN AN 'INTENDED CONSEQUENCE' TO PUNISH THE ASSESSEES FOR NON DEDUCTION OF TAX AT SOURCE BY DECLINING THE DEDUCTION IN RESPECT OF REL ATED PAYMENTS, EVEN WHEN THE CORRESPONDING INCOME IS DULY BROUGHT TO TAX. TH AT WILL BE GOING MUCH BEYOND THE OBVIOUS INTENTION OF THE SECTION. ACCORD INGLY, WE HOLD THAT THE INSERTION OF SECOND PROVISO TO SECTION 40(A)(IAL IS DECLARATORY AND CURATIVE IN NATURE AND IT HAS RETROSPECTIVE EFFECT FROM 1ST APR IL, 2005, BEING THE DATE FROM WHICH SUB CLAUSE (IA) OF SECTION 40(A) WAS INS ERTED BY THE FINANCE (NO. 2) ACT, 2004.. 13. IF WE ANALYSE THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, IN THE LIGHT OF RATIO LAID DOWN BY ITAT AGRA IN ORDER DATED 29.5 .2014 (SUPRA), WE OBSERVE THAT THE CIT(A) AGREED THAT THE CORRECT RATE OF TDS APPLICABLE ON THE INTEREST PAYMENT WAS 22.66% AND NOT 10% AS APPLIED BY THE AO , THEREFORE, THE IMPUGNED AMOUNT OF INTEREST PAYMENT OF WHICH TDS OF RS.3,70,021 WAS REQUIRED TO BE MADE COMES TO RS.16,32,925. HOWEVER, WE FURTHER OBSERVE THAT THE CIT(A) DECLINED TO ACCEPT THE CONTENTION O F THE ASSESSEE THAT SINCE THE SAID INTEREST HAD BEEN ACCOUNTED FOR BY THE PAY EE J.C. INDIA LTD. IN THE INCOME TAX RETURN FOR AY 2009-10, THEREFORE NO ADDI TION WAS REQUIRED TO BE MADE U/S 40(A)(IA) OF THE ACT. LD. CIT(A) PROCEEDED TO CONFIRM THE ADDITION WITH THIS LEGAL PROPOSITION THAT SECTION 40(A)(IA) OF THE ACT PROVIDES THAT WHERE TDS WAS DEDUCTIBLE AND THE SAME HAS NOT BEEN DEDUCTED BY THE PAYER, THE AMOUNT OF INTEREST EXPENSE IS TO BE DISA LLOWED UNDER THIS PROVISION. THE CIT(A) FURTHER NOTED THAT IT IS NOT MATERIAL WHETHER THE PERSON TO WHOM TDS HAS BEEN PAID ACCOUNTED FOR IT IN ITS B OOKS OF ACCOUNTS OR NOT. 14. WHILE WE CONSIDER THE RATIO LAID DOWN BY IT AT AGRA IN ITS ORDER DATED 29.5.2014 (SUPRA), WE FIND OURSELVES IN AGREEMENT W ITH THE CONCLUSION THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AS I T EXISTED PRIOR TO INSERTION OF MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 8 SECOND PROVISO WENT MUCH BEYOND THE OBVIOUS INTENTI ON OF THE LEGISLATURE AND CREATED ITA NO. 2098/D/2013 & CO NO. 177/D/13 A Y: 2009-10 UNDUE HARDSHIP EVEN IN THE CASES IN WHICH ASSESSEE'S TAX WITHHOLDING LAPSES DID NOT RESULT IN ANY LOSS TO THE EXCHEQUER. SUBSEQUENTLY, THE LEGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO CURE THESE SHORTCOMINGS OF PROVISION AND THUS OBVIATE THE UNINTENDED HARDSHIPS, SUCH AS AMENDMENT IN LAW. IN VIEW OF THE WELL-SETTLED LEGAL POSITION TO THE EFFECT THAT A CU RATIVE AMENDMENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSP ECTIVE IN NATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY, THE INSERT ION OF SECOND PROVISO MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIM E WHEN THE RELATED LEGAL PROVISION WAS INTRODUCED. IN THIS SITUATION; AGREEI NG TO THE SAID LEGAL PROPOSITION OF ITAT, AGRA, WE HOLD THAT THE INSERTI ON OF SECOND PROVISO TO SECTION 40(A)(IA) IS DECLARATORY AND CURATIVE IN NA TURE AND IT HAS RETROSPECTIVE EFFECT FROM 1.4.2005. HENCE, RESPECTF ULLY FOLLOWING THE LEGAL PROPOSITION ADVANCED BY ITAT, AGRA, WE DO SEE ANY R EASON TO TAKE A DIFFERENT VIEW ON THE ISSUE THAN THE VIEW TAKEN BY ITAT AGRA IN THE CASE OF SHRI RAJEEV KUMAR AGANUAL VS JCIT (SUPRA). RESPECTFULLY FOLLOWI NG THE SAME, WE UPHOLD THE GRIEVANCE OF THE ASSESSEE PRINCIPALLY AND DIREC T THAT THE AO SHALL GIVE DUE AND FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE AND DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER AFTER CARRYING OUT NECESSARY VERIFICATION REGARDING IMPUGNED PAYMENTS HAVING BEEN TAKEN INTO ACCOUNT BY THE RECIPIENTS IN THE COMPUTATION OF THE IR RESPECTIVE INCOME, REGARDING PAYMENT OF TAXES IN RESPECT OF SUCH INCOM E AND REGARDING FILING OF RELATED INCOME TAX RETURN BY THE RECIPIENTS. ACCORD INGLY, SOLE CROSS ITA NO. 2098/D/2013 & CO NO. 177/D/13 AY: 2009-10 OBJECTION OF THE ASSESSEE IS ALLOWED IN PRINCIPLE AND DEEMED TO BE ALLOWED FOR V ERIFICATION BY THE AO IN THE MANNER AS INDICATED ABOVE. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED AND SOLE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICA L PURPOSES. MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 9 IN VIEW OF THE FACTS INVOLVED, THE ABOVE QUOTED JU DGEMENT PASSED BY THE ITAT DELHI AND THE RATIO OF THE JUDGEMENT IN THE CA SE OF CIT V/S ANSAL LANDMARK TOWNSHIP (P) LTD. 279CTR 384(DEL), THE ADD ITION ON ACCOUNT OF PAYMENTS MADE TO M/S M/S CRAFTMAN ADVERTISEMENT, NE W DELHI FOR RS. 15,61,130/- AND M/S RAM NIWAS ADVERTISERS FOR RS. 2 ,63,978/- WITHOUT DEDUCTION OF TAX AT SOURCE, IN THIS CASE CANNOT BE SUSTAINED. HOWEVER IT IS ALSO SEEN THAT THE APPELLANT HAS NOT PROVIDED ANY EXPLANATION WITH REGARD TO NON DEDUCTION OF TAX IN RESPECT OF P AYMENTS MADE TO M/S M.S. ADVERTISERS, HINDAUN FOR RS.5,08,962/- AND M/S MA BHARTI NEWS FOR RS.50,000/-. THE ADDITION IN RESPECT OF THESE TWO P ARTIES IS THEREFORE NOT CONSIDERED FOR ANY RELIEF. ADDITION OF RS. 5,58,962 /- IS CONFIRMED. THE BALANCE ADDITION OF RS. 21,82,015/- IS DIRECTED TO BE DELETED IN VIEW OF THE DISCUSSION MADE ABOVE IN THIS ORDER. 3. THE COORDINATE BENCH OF THE ITAT, JAIPUR HAS UPHEL D THE ORDER OF THE LD. CIT(A) BY HOLDING AS UNDER: 8. WE HAVE HEARD THE LD. SR. DR AND HAVE PERUSED T HE MATERIAL AVAILABLE ON THE RECORD. WE HAVE GIVEN OUR THOUGHTF UL CONSIDERATION TO THE CONTENTION OF THE LD. SR. DR. NO DISPUTE WITH REGARD TO THE FACT THAT THE LD. CIT(A) HAS CON CURRENT JURISDICTION WITH THE A.O. THE LD. CIT(A) HAS GIVEN A FINDING OF FACT, WHICH IS NOT REBUTTED BY THE REVENUE BY PLACI NG ANY MATERIAL ON RECORD, THEREFORE, WE DO NOT SEE ANY RE ASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A). ACCORDING LY, THIS GROUND OF THE REVENUE IS DISMISSED. 4. AFTER GOING THROUGH THE FACTS OF THE ISSUE, THE BENCH FIND THAT THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CAS E OF PALAM GAS MA 135/JP/2017_ ITO VS RAMESH CHAND CHATURVEDI 10 SERVICE VS CIT (SUPRA) IS NOT AT ALL APPLICABLE TO T HE FACTS OF THE ASSESSEES CASE, THEREFORE, THE M.A. FILED BY THE R EVENUE HAS NO MERIT AND THE SAME IS DISMISSED. 5. IN THE RESULT, THIS MISC. APPLICATION OF THE REV ENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, KARAULI. 2. IZR;FKHZ @ THE RESPONDENT- SHRI RAMESH CHAND CHATURVEDI, HINDAUN CITY, DISTT.-KARAULI. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (MA NO. 135/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR