V.M.B.Leathers, CHENNAI V. ITO, CHENNAI

MA 144/CHNY/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2287 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 14-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: K MEENAKSHISUNDARAM ITP
• Keywords: Question of law

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , ! , ' # BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P.NO.144/MDS./2014 ./ I.T.A.NO.918/MDS./2010 ( / ASSESSMENT YEAR :2007-08 ) M/S.V.M.B.LEATHERS , NO.40/2,WUTHUTHCATTAN STREET, PERIAMET, CHENNAI 600 003, VS. INCOME TAX OFFICER, BUSINESS WARD XII(4), CHENNAI. PAN AAFFV 2453 H ( !$ / APPELLANT ) ( %&!$ / RESPONDENT ) / APPELLANT BY : SHRI K.MEENAKSHISUNDARAM,ITP / RESPONDENT BY : SHRI S.DAS GUPTA, JCIT, D.R. / DATE OF HEARING : 19.09.2014 ! /DATE OF PRONOUNCEMENT : 19.09.2014 ' / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITION IS FILED BY THE ASSES SEE, PRAYING FOR RECTIFICATION OF THE ORDER OF THE TRIBU NAL IN ITA NO.918/MDS./2010 DATED 22 ND OCTOBER, 2010. MP NO144./MDS/14 2 2. THE ASSESSEE HAD MADE THE FOLLOWING SUBMISSIONS BEFORE US. A SUM OF RS.40,40,677 WHICH WAS PAID BY WAY OF TAN NING CHARGES TO FOUR TANNERY COMPANIES WITHOUT DEDUCTION OF TAX U/S . 194(C) WAS DISALLOWED BY THE ITO U/S. 40(A)(IA) OF THE ACT. TH E DISALLOWANCE WAS CONFIRMED BY THE COMMISSIONER (APPEALS) AND BY THE TRIBUNAL ON THE BASIS OF LEGAL VIEWS AVAILABLE AT THE RESPECTIVE PO INT OF TIME . THE VISHAKAPATTINAM BENCH OF INCOME TAX APPELLATE T RIBUNAL HAD HELD IN THE CASE OF MERRYLENE SHIPPING AND TRANSPOR TS THAT THE DISALLOWANCE U/S. 40(A)(IA) DESERVED TO BE MADE ONL Y WHEN THE AMOUNTS IN QUESTION WERE SHOWN AS PAYABLE AT THE EN D OF THE YEAR IN THE BALANCE SHEET AND NOT IN RESPECT OF AMOUNTS THA T HAD BEEN PAID ALREADY AND DEBITED IN THE PROFIT AND LOSS ACCOUNT . THE ALLAHABAD HIGH COURT HAD UPHELD THIS VIEW IN THE CASE OF VECT OR SHIPPING SERVICES (P) LTD REPORTED IN 357 ITR 642. THE SUPRE ME COURT OF INDIA HAD DISMISSED THE SPECIAL LEAVE PETITION OF THE INC OME TAX DEPARTMENT IN CCNOS 8068/2014. WITH THE DISMISSAL O F THE SPECIAL LEAVE PETITION THE MATTER HAS REACHED ITS FINALITY AND THE CONTROVERSY HAS BEEN PUT TO REST. THE SETTLED POSITION OF LAW N OW U/S. 40(A)(IA) IS THAT THE DISALLOWANCE IS POSSIBLE ONLY IN RESPECT O F AMOUNTS PAYABLE AND NOT PAID ALREADY. SINCE THE SUM OF RS.40,40,67 7 HAD BEEN PAID ALREADY BY THE ASSESSEE THE DISALLOWANCE MADE IN T HE ASSESSMENT AND CONFIRMED BY THE HONBLE TRIBUNAL CONSTITUTES A MISTAKE APPARENT MP NO144./MDS/14 3 ON THE FACE OF THE RECORDS. SINCE THE ORDER OF THE SUPREME COURT OF INDIA IS FINAL ON A QUESTION OF LAW ANY ACTION DONE EVEN IN A PERIOD PRIOR TO THE RECEIPT OF THE ORDER OF THE SUPREME CO URT OF INDIA IN A MANNER NOT IN CONSONANCE WITH THE LAW ENUNCIATED BY THE SUPREME COURT OF INDIA IS A MISTAKE APPARENT ON THE FACE OF RECORDS. THE APPELLANT THEREFORE SUBMITS THAT THE HONBLE TR IBUNAL BE PLEASED TO RECTIFY THEIR ORDER IN ITA NO.918/MDS/2010 BY DE LETING THE ADDITION OF RS.40,40,677 EARLIER CONFIRMED BY THE TRIBUNAL U /S. 40(A)(IA) ON THE BASIS OF LAW AS PREVAILING AT THAT TIME. 3. LD. D.R VEHEMENTLY OPPOSED TO THE SUBMISSION OF THE ASSESSEE AND ARGUED BY STATING THAT THE TRIBUNAL HAD CONSCIO USLY TAKEN A DECISION ON 22 ND OCTOBER, 2010 WHILE PASSING THE ORDER IN APPEAL NO . ITA NO.918/MDS./2010, BASED ON THE RELEVANT MATERIA LS ON RECORD AND THE DECISIONS OF VARIOUS JUDICIAL AUTHORITIES A VAILABLE ON THAT DAY. THE LD. D.R. THEREFORE ARGUED THAT THE TRIBUNAL HAD NOT COMMITTED ANY MISTAKE WHICH IS APPARENT ON RECORD. LD. D.R F URTHER SUBMITTED THAT AT THIS STAGE THE TRIBUNAL CANNOT REVIEW ITS O RDER BASED ON THE SUBSEQUENT JUDICIAL DECISIONS. IT WAS THEREFORE RE QUESTED THAT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE MAY BE DISMISSED. MP NO144./MDS/14 4 4. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PE RUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENTS STATED BY THE LD. D.R. THE TRIBUNAL ON THE EARLIER OCCASIO N HAD PASSED THE ORDER AFTER DULY CONSIDERING THE RELEVANT DECISIONS AVAILABLE AT THAT TIME. THEREFORE IT CANNOT BE CONSTRUED THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH IS APPARENT ON RECORD T HAT NEEDS TO BE RECTIFIED JUST BECAUSE SOME SUBSEQUENT DECISIONS WE RE CONTRARY TO THE DECISION AVAILABLE AT THE TIME OF PASSING THE O RDER BY THE TRIBUNAL. THEREFORE WE ARE OF THE CONSIDERED VIEW THAT THE OR DER PASSED BY THE TRIBUNAL NEED NOT BE RECALLED. IT IS HEREBY ORDERE D ACCORDINGLY. 5. IN THE RESULT, THE MP OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED ON 19 TH SEPTEMBER, 2014. SD/- SD/- ( VIKAS AWASTHY ) ( A.MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 19 TH SEPTEMBER, 2014. K S SUNDARAM. '# $%&% /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. '() /CIT(A) 4. ' /CIT 5. %*+ , /DR 6. +-. /GF MP NO144./MDS/14 5