SHREE VINAYAK EDUCATION SOCIETY, Jaipur V. ITO, Alwar

MA 171/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5441 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 14-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Section: 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER M.A. NO. 171/JP/2016 (ARISING OUT OF ITA NO. 829/JP/2014) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 SHREE VINAYAK EDUCATION SOCIETY, UNIT SIDHI VINAYAK COLLEGE, E-1, B-1, MIA (EXT.), ALWAR. CUKE VS. INCOME TAX OFFICER, (TDS), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. JPRSO 7622 G VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT). LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/03/2017 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT: 06/03/2017 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED THE PRESENT MISC. APPLICATIO N ON 09/12/2016 AGAINST THE ORDER OF THE ITAT, JAIPUR BEN CH, JAIPUR DATED 16/05/2016 PASSED IN ITA NO. 829/JP/2014 FOR A.Y. 2 011-12 U/S 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). THROUGH THIS M.A., THE ASSESSEE HAS SUBMITTED AS UNDER:- M.A. NO. 171/JP/2016 SHREE VINAYAK EDUCATION SOCIETY VS. ITO (TDS) 2 1. THE APPLICANT BEGS TO SUBMIT THAT THE ORDER, GIVI NG RISE TO THE PRESENT MISCELLANEOUS APPLICATION PASSED ON 16.05.2016 WAS SERVED ON 27.05.2016. 2. IN THIS CASE, THE MAIN GROUND INVOLVED WAS THE APPLICABILITY OF THE TDS PROVISION ON PAYMENT MADE ON ACCOUNT OF FIXED MONTHLY SALARY AND ON SUPPLY OF ADVERTISEMENT MATER IAL. THE ID. AR OF THE ASSESSEE HAS ARGUED THAT FIXED MON THLY SALARY HAS BEEN PAID TO THE GUEST FACULTY @ RS. 15,0 00 PM / RS. 12,000 PM TO VARIOUS PERSONS. THE NAME OF THES E PERSONS, THEIR ATTENDANCE RECORD AND A SAMPLE APPOINTMENT LETTERS WAS PLACED IN THE PAPER BOOK. ACCORDINGLY IT WAS CLAIMED THAT ON PAYMENT OF SUCH S ALARY TAX IS DEDUCTIBLE U/S 192 BUT AS THE INDIVIDUAL PAY MENT TO EACH PERSON IS LESS THAN THE MAXIMUM AMOUNT CHARGEA BLE TO TAX THERE IS NO LIABILITY TO DEDUCT TAX AT SOURC E. IN RESPECT OF SUPPLY OF ADVERTISEMENT MATERIAL IS WAS C LAIMED THAT THE BILLS SEPARATELY MENTION THE VALUE OF MATE RIAL AND THE LABOUR CHARGES AND THEREFORE U/S 194C(3), TAX I S DEDUCTIBLE ONLY ON THE AMOUNT PAID ON ACCOUNT OF LA BOUR/ INSTALLATION/ PRINTING CHARGES AND NOT ON THE ENTIR E INVOICE VALUE AND AS THE INDIVIDUAL PAYMENT TOWARDS LABOUR CHARGES ETC IS LESS THAN RS. 30,000/- AND THE AGGRE GATE PAYMENT DURING THE FINANCIAL YEAR IS LESS THAN RS. 75,000/- THERE IS NO LIABILITY OF DEDUCTION OF TAX AT SOURCE . COPY OF THE BILLS IS FILED IN THE PAPER BOOK. THIS CONTENTIO N OF THE ASSESSEE IS ALSO STATED IN THE ORDER OF CIT(A). M.A. NO. 171/JP/2016 SHREE VINAYAK EDUCATION SOCIETY VS. ITO (TDS) 3 3. THE HON'BLE ITAT HOWEVER, WITHOUT DEALING WITH THESE CONTENTIONS OF THE ASSESSEE AT PARA 2.7 OF ITS ORDE R HELD THAT AUTHORITIES BELOW HAVE CLEARLY DEMONSTRATED THA T ASSESSEE WAS LIABLE FOR NON DEDUCTION OF TDS ON THE PAYMENT IN QUESTION. THEREFORE, NOT DEALING WITH THE SPECIFIC ARGUMENT OF THE ID. AR IS A MISTAKE APPARE NT ON RECORD. RELIANCE IN THIS CONNECTION IS PLACED ON TH E DECISION OF ALLAHABAD HIGH COURT IN CASE OF LAXMI ELECTRONIC CORP VS. CIT (1991) 188 ITR 0398 WHERE IT IS HELD THAT, WHE RE THE TRIBUNAL FAILS OR OMITS TO DEAL WITH AN IMPORTAN T CONTENTION AFFECTING THE MAINTAINABILITY/MERITS OF THE APPEAL, IT MUST BE DEEMED TO BE A MISTAKE APPARENT FROM THE RECORD, WHICH EMPOWERS THE TRIBUNAL TO RECTIFY THE SAME. SINCE THE ABOVE MISTAKE IS APPARENT ON RECORD, IT IS REQUESTED TO SUITABLY MODIFY PARA 2.7 OF THE ORDER. 2. THE M.A. WAS HEARD. THE LD AR OF THE ASSESSEE HAS PRAYED TO RECALL THE TRIBUNALS ORDER PASSED IN ITA NO. 829/JP /2014. THE ASSESSEE ALSO PRAYED IN PARA 2.7 OF THE ORDER, THERE IS APPA RENT MISTAKE AND DECISION TO BE MODIFIED. 3. AT THE OUTSET, THE LD SR. DR VEHEMENTLY ARGUED T HAT THE HONBLE BENCH HAD ALREADY CONSIDERED ALL THE FACTS AND LEGA L ISSUE IN ITS ORDER. SECTION 254(2) OF THE ACT DOES NOT PERMIT THE ITAT TO REVIEW ITS ORDER. M.A. NO. 171/JP/2016 SHREE VINAYAK EDUCATION SOCIETY VS. ITO (TDS) 4 THE ASSESSEE IS SEEKING REVIEW OF THE ORDER BY THIS M .A. THEREFORE, HE PRAYED TO DISMISS THE ASSESSEES M.A. 4. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE IT AT HAS RESTORED THE ISSUE TO THE FILE OF A.O. RELYING ON THE DECISION O F THE HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES (P) LTD. VS CIT 293 ITR 226, WHEREIN THE HONBLE APEX COURT HAS HELD THAT IF RECIPIENTS HAVE PAID THE TAXES ON THE RELEVANT RECEIPT THEN TDS LIA BILITY CANNOT BE FASTENED ON THE PAYER AS IT AMOUNTS TO DOUBLE TAXAT ION, HOWEVER, THE ASSESSEE WILL BE LIABLE FOR INTEREST ON THE INTERVEN ING PERIOD. I DO NOT FIND ANY APPARENT MISTAKE IN THE ORDER OF THE ITAT. IF THE ASSESSEES PLEA IS ACCEPTED, IT WILL AMOUNT TO REVIEW OF THE O WN ORDER, WHICH IS NOT PERMITTED IN LAW U/S 252(2) OF THE ACT. THEREFORE, I DISMISS THE M.A. FILED BY THE ASSESSEE. 5. IN THE RESULT, THE PRESENT MA PETITION IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/03/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 06 TH MARCH, 2016 M.A. NO. 171/JP/2016 SHREE VINAYAK EDUCATION SOCIETY VS. ITO (TDS) 5 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHREE VINAYAK EDUCATION SOCIETY, ALWAR . 2. IZR;FKHZ @ THE RESPONDENT- THE ITO (TDS), ALWAR. 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. 171/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR