VIKASH OIL PRODUCT, Dausa V. ITO, Dausa

MA 149/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5221 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA

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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM M.A.NO.149/JP/16 (ARISING OUT OF ITA NO. 934/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD DAUSA, DAUSA. CUKE VS. M/S. VIKAS OIL PRODUCT, H-1-71,72,73, RIICO INDUSTRIAL AREA, DAUSA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAAFV 7709 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/01/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 11/01/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE SUBJECT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE REVENUE WHICH IS ARISING OUT OF THE ORDER PASSED BY THE COORDINATE BENCH IN I.T.A. NO.934/JP/2013 DATED 30.11.2015. IN ITS APPLICATION, THE REVENUE HAS DRAWN REFERENCE TO THE PARA-5 OF THE SA ID ORDER DATED 30.11.2015 WHEREIN THE COORDINATE BENCH WHILE DISPOS ING OF THE GROUND RELATING TO DISALLOWANCE U/S 40(A)(IA) HAS HELD AS U NDER:- M.A. NO.149/JP/16 M/S. VIKAS OIL PRODUCT, DAUSA 2 2.5 LD. DRS PROPOSITION DESERVES MERIT, CONSEQUENTLY THE GROUND ABOUT APPLICABILITY OF SEC. 40(A)(IA) IS SET ASIDE AND RESTORED BACK TO LD. AO TO VERIFY AND APPLY SEC. 40(A)(IA) ONLY TO AMOUNTS REMAINING PAYABLE TO RSWC AT THE YEAR END AND NOT ON AMOUNT ACTUALLY PAID. 2. FURTHER, IT WAS SUBMITTED THAT THE CBDT IN PARA 4 OF THE CIRCULAR NO.10/DV/2013 CIRCULATED VIDE LETTER F.NO.279/MISC. /M-61/2012-ITJ (VOL.II) DATED 16 TH DECEMBER, 2013 ON SEC. 40(A)(IA) OF THE I.T. ACT, 1961 HAS DIRECTED AS UNDER:- AFTER CAREFUL EXAMINATION OF THE ISSUE, THE BOARD IS OF THE CONSIDERED VIEW THAT THE PROVISION OF SECTION 40(A)(IA) OF THE ACT WOULD COVER NOT ONLY THE AMOUNT S WHICH ARE PAYABLE AS ON 31 ST MARCH OF A PREVIOUS YEAR BUT ALSO AMOUNTS WHICH ARE PAYABLE AT ANY TIME DURI NG THE YEAR. THE STATUTORY PROVISIONS ARE AMPLY CLEAR A ND IN THE CONTEXT OF SECTION 40(A)(IA) OF THE ACT THE TER M PAYABLE WOULD INCLUDE AMOUNTS WHICH ARE PAID DURI NG THE PREVIOUS YEAR. 3. IN THE LIGHT OF ABOVE, IT WAS SUBMITTED THAT THE AFORESAID CIRCULAR IS EQUALLY APPLICABLE IN THIS CASE ALSO AND IT IS P RAYED THAT THE DEPARTMENTAL APPEAL MAY BE HEARD AND DECIDED ON MER ITS. 4. THE COORDINATE BENCH HAS DISCUSSED THE ISSUE REGA RDING DISALLOWANCE UNDER SECTION 40(A)(IA) IN PARA NOS.2.3 , 2.4 & 2.5 OF ITS ORDER WHICH IS REPRODUCED AS UNDER:- M.A. NO.149/JP/16 M/S. VIKAS OIL PRODUCT, DAUSA 3 2.3. APROPOS 1 ST GROUND LD. COUNSEL CONTENDS RELIED ON HONBLE ALLAHABAD HIGH COURT JUDGMENT IN THE CASE OF CIT V V ECTOR SHIPPING SERVICES 262 CTR 545 FOR THE PROPOSITION TH AT SEC. 40(A)(IA) AS IT STOOD AT THAT TIME WAS APPLICABLE TO ONLY PAYABLE I.E. OUTSTANDING AMOUNTS. THE RENT IS ACTUAL LY PAID TO RSWC AND THERE WAS NO AMOUNT PAYABLE AT THE END O F THE YEAR. SUBSEQUENTLY A LEGISLATIVE AMENDMENT IN I T ACT HAS ALSO BEEN MADE W.E.F. 1-4-13 TO THIS EFFECT. THE REFORE, DISALLOWANCE U/S 40(A)(IA) IS UNCALLED FOR. 2.4. LD. DR QUA 1 ST GROUND CONTENDS THAT FROM THE RECORD THE FACT THAT RENT WAS ACTUAL PAID TO RSWC IN THE YEAR A ND THERE WAS NOTHING PAYABLE IS NOT EMERGING FROM THE R ECORD, THEREFORE, THIS ISSUE MAY BE SET ASIDE FOR NECESSAR Y VERIFICATION TO AO. LD. COUNSEL FOR ASSESSEE HAS NO OBJECTION. 2.5 LD. DRS PROPOSITION DESERVES MERIT, CONSEQUE NTLY THE GROUND ABOUT APPLICABILITY OF SEC. 40(A)(IA) IS SET ASIDE AND RESTORED BACK TO LD. AO TO VERIFY AND APPLY SEC. 40 (A)(IA) ONLY TO AMOUNTS REMAINING PAYABLE TO RSWC AT THE YE AR END AND NOT ON AMOUNT ACTUALLY PAID. 5. FROM THE PERUSAL OF THE COORDINATE BENCH DECISIO N, IT IS CLEAR THAT IT HAS RELIED ON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN CASE OF CIT(A) VS. VECTOR SHIPPING SERVICES (SUPRA). FURTHE R, THERE IS NOTHING ON RECORD TO SHOW THAT THE CIRCULAR NO.10/DV/2013 DA TED 16 TH DECEMBER, 2013 WAS BROUGHT TO THE NOTICE OF THE COOR DINATE BENCH. IN M.A. NO.149/JP/16 M/S. VIKAS OIL PRODUCT, DAUSA 4 ANY CASE, THE VIEW EXPRESSED IN THE CIRCULAR IS A DE PARTMENTAL VIEW WHICH IS NOT BINDING ON THE TRIBUNAL. GIVEN THAT THE COORDINATE BENCH HAS RELIED ON THE DECISION OF VECTOR SHIPPING SERVI CES (SUPRA), WE DO NOT THINK THERE IS ANY MISTAKE WHICH IS APPARENT ON RECORD, WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE I.T. ACT, 1 961. IN THE LIGHT OF ABOVE, MISCELLANEOUS APPLICATION FILED BY THE REVEN UE IS DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11/01/2017. * SANJEEV. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO WARD, DAUSA. 2. IZR;FKHZ@ THE RESPONDENT-M/S. VIKAS OIL PRODUCT, DAUSA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {M.A. NO.149/JP/16} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR