M/s. Navjivan Synthetics, Surat V. The Income tax Officer,Ward-9(3), Surat

MA 141/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9213 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 23-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R ILAVARSI
• Assessee Lawyers: J P SHAH
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD D BENCH BEFORE: SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARA T, JUDICIAL MEMBER M/S. NAVJIVAN SYNTHETICS SURVEY NO. 414-415, RESHAMWALA COMPOUND, VASTA-DEVDI ROAD, SURAT (APPELLANT) PAN NO. AABFN9913E VS. THE INCOME TAX OFFICER WARD 9(3), ROOM NO. 420, AAYKAR BHAVAN, MAJURA GATE, SURAT. (RESPONDENT) REVENUE BY : SRI R ILAVARSI, SR. D.R. ASSESSEE BY : SRI J.P. SHAH, A.R. DATE OF HEARING : 21-09-2012 DATE OF PRONOUNCEMENT : 09-11-2012 / ORDER PER : KUL BHARAT, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE HAS BEEN FILED AGAINST THE ORDER OF THIS TRIBUNAL DATED 06-07-2012 WHEREBY THE TRIBUNAL WAS PLEASED TO DISMISS THE CROSS OBJECTION OF THE ASSES SEE. 1.1 LEARNED COUNSEL FOR THE ASSESSEE, SRI J.P. SHA H, SUBMITTED THAT THERE IS APPARENT ERROR IN THE ORDER DATED 06-07-2012 PASSED BY THIS TRIBUNAL. HE M.A. NO. 141 /AHD/2012 (ARISING OUT OF C.O. NO. 35/A/2009 IN ITA NO. 226/A/2009) A.Y.:-2005-06 MA NO. 141/AHD/2012 A.Y. 2005-06 PAGE NO. M/S NAVJIVAN SYNTHETICS VS. ITO 2 SUBMITTED THAT THE SIGNIFICANCE OF THE FACT OF TOTA L PAYMENT OF RS. 2,64,101/- HAVING BEEN MADE TO TRANSPORTERS, AND THEREFORE, T HERE WAS NO BREACH OF SECTION 40(A)(IA) AS POINTED OUT IN THE CROSS OBJEC TION SEEMS TO HAVE ESCAPED ATTENTION OF THE TRIBUNAL. HE SUBMITTED THAT THE D ECISION OF THE SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF MERIL YN AND SHIPPING & TRANSPORTS VS. ADDL. CIT DATED 09-04-2012 REPORTED (2012) 70 DTR 81 FULLY SUPPORTS THE CROSS OBJECTION AND, THEREFORE, THE AD VERSE ORDER IS APPARENTLY ERRONEOUS. 1.2 HE FURTHER SUBMITTED THAT THE DISTINCTION MADE ON THE BASIS OF AN AMENDMENT OF SECTION 194C ON 01-10-1994 AND ITS OBV IOUSLY FAVOURABLE EFFECT ON THE CASE OF THE APPLICANT ALSO ESCAPED AT TENTION OF THE TRIBUNAL. IN FACT, THIS CONTENTION IS ALSO REQUIRED TO BE DECIDE D IN FAVOUR OF THE APPLICANT AND NOTHING WOULD BE DISALLOWABLE IN A VIEW OF A DI RECT DECISION OF A BENCH OF THE INCOME TAX APPELLATE TRIBUNAL IN ITA 1 884/AHD/2011 FOR THE ASSESSMENT YEAR 2005-06 IN THE MATTER OF K.D. MANUF ACTURING VS. ITO. 1.3 HE FURTHER SUBMITTED THAT IN THE ABSENCE OF CON TRACT BETWEEN THE APPLICANT AND THE TRANSPORTER, BECAUSE THE CONTRACT TO TRANSPORT WAS BETWEEN THE GMDC AND THE TRANSPORTER, THEREFORE, U/S 194C D OES NOT APPLY. THIS CONTENTION ALSO HAS ESCAPED THE DISPOSAL OF THE TRI BUANL. IN FACT, THE CONTENTION IS SUPPORTED BY THE LANGUAGE OF SECTION 194C(1) BECAUSE OF THE USE OF THE WORDS THEREIN IN PURSUANCE OF A CONTRACT BETWEEN THE CONTRACTOR AND A SPECIFIED PERSON. NOW, THE FACT OF THE MATTE R IS THAT THERE IS NO CONTRACT BETWEEN THE APPLICANT AND THE TRANSPORTER, THE CONTRACT IS BETWEEN THE GMDC AND THE TRANSPORTER. ON THE CONTRARY, LD. SR. D.R. RELIED ON THE MA NO. 141/AHD/2012 A.Y. 2005-06 PAGE NO. M/S NAVJIVAN SYNTHETICS VS. ITO 3 ORDER OF THE TRIBUNAL. HE SUBMITTED THAT THERE IS N O ERROR APPARENT FROM RECORDS. 2. WE HAVE HEARD RIVAL SUBMISSIONS. WE FIND FORCE IN THE CONTENTION OF THE LEARNED A.R. OF THE ASSESSEE THAT IT WAS CONTEN DED IN THE C.O. THAT THERE WAS NO BREACH OF SECTION 40(A)(IA) BUT THIS CONTENT ION HAS ESCAPED ATTENTION OF THIS TRIBUNAL. IN VIEW OF THIS, WE FEEL THAT TH ERE IS APPARENT MISTAKE IN THE TRIBUNAL ORDER BEING NON-CONSIDERATION OF A FACTUAL ASPECT AND, THEREFORE, WE RECALL THIS TRIBUNAL ORDER IN RESPECT OF C.O. NO. 3 5/AHD/2009. THE REGISTRY IS DIRECTED TO FIX A HEARING OF THIS CROSS OBJECTIO N IN DUE COURSE. 3. IN THE RESULT, THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD : DATED 09 /11/2012 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '#