M/s. Satish D. Patel, Baroda V. The Income Tax Officer, Ward-5(1), Baroda

MA 18/AHD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2913 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 16-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM & ANIL CHATURVEDI, AM MISC. APPLICATION NO.18/AHD/2015 ARISING OUT OF ITA NO.2122/AHD/2010 ASST. YEAR 2007-08 .M/S. SATISH D. PATEL, 30, VINOD VATIKA, WAGHODA ROAD, BARODA. VS INCOME-TAX OFFICER, WARD 5(1), BARODA. (APPELLANT) (RESPONDENT) PA NO. AAVFS4682 D APPELLANT BY SHRI HARDIK VORA, AR RESPONDENT BY SHRI B. L. YADAV, SR. DR DATE OF HEARING: 15/5/2015 DATE OF PRONOUNCEMENT: 15/5/2015 O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED AT THE INSTANCE OF THE ASSESSEE POINTING OUT AN APPARENT E RROR IN THE ORDER OF TRIBUNAL DATED 31 ST JANUARY, 2014. 2. IT IS PLEADED IN THE APPLICATION THAT THE TRIBUN AL IN PARAGRAPH NO.5 OF THE ORDER HAS RECORDED A FINDING THAT NO DO CUMENTARY ITA NO. M.A. NO.18-AHD-2015 ASST. YEAR 2007-08 2 EVIDENCE IN SUPPORT OF THE SUBMISSIONS WERE FILED B Y THE ASSESSEE. THIS FINDING IS CONTRARY TO THE FACTS ON RECORD. TH E ASSESSEE HAS FILED PAPER BOOK CONTAINING 15 PAGES WHICH INCLUDES WRITT EN SUBMISSIONS MADE BEFORE THE ITAT, CIT(A), PROFIT AND LOSS ACCOU NT AND WORKERS- WISE, DATE-WISE DETAILS AND WAGES PAID TO THE WORKE RS. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE TRIBUNA L FAILED TO LOOK INTO THE PAPER BOOK OF THE ASSESSEE BEFORE DECIDING THE APPEAL, THEREFORE, IT IS AN APPARENT MISTAKE ON RECORD. 3. ON THE OTHER HAND, THE LD. DR POINTED OUT THAT T HERE IS NO APPARENT MISTAKE ON RECORD. 4. THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE I.T. ACT, 1961 CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH I S SOUGHT TO BE RECTIFIED IS OBVIOUS AND PATENT MISTAKE WHICH IS AP PARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTA BLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. THE TRIBUNAL IN PARAGRAPH 5 HAS RECORDED THE FOLLOWING FINDING:- ITA NO. M.A. NO.18-AHD-2015 ASST. YEAR 2007-08 3 5. BEFORE US ASSESSEE DID NOT RELY ON THE DECISIO N OF JAIPUR BENCH IN THE CASE OF JAIPUR VIDHYUT VITHRAN VS. CIT IN VI EW OF CONTRARY DECISION OF JURISDICTIONAL HIGH COURT. HE ONLY RELI ED ON THE SUBMISSIONS MADE BEFORE AO. SINCE A PLAIN SUBMISSIO N WAS MADE THAT THE PAYMENTS MADE TO THE LABOURERS WERE IN THE NATURE OF SALARIES AND NO DOCUMENT/EVIDENCE IN SUPPORT OF SUC H SUBMISSION WAS PLACED ON RECORD, WE ARE NOT INCLINED TO ACCEPT THIS SUBMISSION AND THE ORDER PASSED BY LOWER AUTHORITIES ON THE IS SUE ARE HEREBY UPHELD. 5. THE ISSUE BEFORE THE TRIBUNAL WAS THAT ASSESSEE HAD MADE PAYMENTS AMOUNTING TO RS.18,77,345/- TO 13 PERSONS WITHOUT D EDUCTING TDS. THE ARGUMENTS OF THE ASSESSEE THAT THESE PAYMENTS WERE IN THE NATURE OF SALARY AND HENCE THE SECTION APPLICABLE FOR DEDUCTION OF TAX A T SOURCE WAS SECTION 192 AND NOT SECTION 194C AND THEREFORE, NO DISALLOWANCE UND ER SECTION 40(A)(IA) COULD BE MADE. THIS SUBMISSION OF THE ASSESSEE HAS BEEN REJE CTED CONCURRENTLY UPTO THE LEVEL OF TRIBUNAL FOR THE REASONS THAT ASSESSEE FAI LED TO PRODUCE ATTENDANCE REGISTER OR ANY OTHER EVIDENCE WHICH CAN BUTTRESS I TS CASE. THE DOCUMENTS ALLEGED IN THE PAPER BOOK ARE THE DETAILS OF PAYMEN T TO THE WORKERS WHICH IS NOT IN DISPUTE. THE DISPUTE IS WHETHER IT WAS A SALARY PAYMENT TO THE EMPLOYEES OR IT WAS A PAYMENT FOR CONTRACTUAL SERVICES. THE ASSESSE E COULD NOT BRING ANY DEMONSTRATIVE EVIDENCE THAT PAYMENTS DID NOT INVOLV E ELEMENT OF CONTRACTUAL SERVICES BUT WERE ON ACCOUNT OF SALARY. THE TRIBUNA L HAS APPRECIATED THE CONTROVERSY, ITA NO. M.A. NO.18-AHD-2015 ASST. YEAR 2007-08 4 AFTER LOOKING INTO THE PAPER BOOK. THERE IS NO APP ARENT ERROR IN THE IMPUGNED ORDER. 6. THE MISCELLANEOUS APPLICATION IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/5/2015 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (ANIL CHATURVEDI) ACCOUNTANT MEMBER MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD ITA NO. M.A. NO.18-AHD-2015 ASST. YEAR 2007-08 5 1. DATE OF DICTATION: 15/5/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 15/5/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: