The ITO, TDS, Ward-2, Baroda V. M/s. Prashant Hydrocarbons Pvt.Ltd., Baroda

MA 182/AHD/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6292 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 29-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Tax effect
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 27/5/2011 DRAFTED ON: MA NO.182/AHD/2009 ( ARISING OUT OF ITA NO.1687/AHD/2007 ) ASSESSMENT YEAR : 2003-04 THE ITO (TDS) WARD01 BARODA ( ORIGINAL APPELLANT ) VS. M/S.PRASHANT HYDROCARBONS PVT.LTD. PLOT NO.906, GIDC RANOLI BARODA ( ORIGINAL RESPONDENT ) PAN/GIR NO. : BRDP 00882 A (APPLICANT) .. (RESPONDENT) APPLICANT BY : SHRI P.L.KUREEL, SR. D.R. RESPONDENT BY: -NONE- O R D E R PER SHRI MUKUL SHRAWAT, JUDICIAL MEMBER :- THROUGH THIS MISCELLANEOUS APPLICATION RECEIVED O N 29/05/2009, THE REVENUE HAS CONTESTED THAT THE TRIBUNAL HAS CO MMITTED AN ERROR WHILE PRONOUNCING THE JUDGEMENT IN ITA NO.1687/AHD/ 2007 (FOR A.Y. 2003-04) DATED 26/09/2008 TITLED AS ITO (TDS) VS. M/S.PRASHANT HYDROCARBONS PVT.LTD. THAT THE TAX EFFECT IN REVE NUES APPEAL WAS BELOW RUPEES TWO LACS. 2. THE LEARNED DEPARTMENTAL REPRESENTATIVE MR.R.L.K UREEL HAS CONTESTED THAT THE ISSUE WAS INVOCATION OF PROVISIO NS OF SECTION 201(1) AND 201(1A) OF THE I.T.ACT IN RESPECT OF PAYMENT O F RS.2,81,16,275/- TOWARDS FREIGHT CHARGES TO DIFFERENT TRUCK OWNERS H OWEVER, NO TDS WAS MA NO.18 2 /AHD/2009 2010 (ARISING OUT OF ITA NO.1687/AHD/2007) ITO VS. PRASHANT HYDROCARBONS P.LTD. ASST.YEAR 2003-04 - 2 - DEDUCTED AS PER THE PROVISIONS OF SECTION 194C OF T HE I.T.ACT, 1961. A LIABILITY OF RS.6,19,964/- WAS IMPOSED ON THE ASSE SSEE THEREFORE IT WAS WRONG TO HOLD THAT TAX INVOLVED WAS LESS THAN RUPEE S 2 LACS. THE RELEVANT PORTION OF THE MISCELLANEOUS APPLICATION H AS BEEN RELIED UPON; REPRODUCED BELOW:- AN ORDER U/S.201(1)(1A) OF THE I.T. ACT WAS PASSED IN THE CASE OF M/S.PRASHANT HYDROCARBON PVT.LTD. FOR A.Y. 2003-04 (F.Y.2002- 03) RAISING DEMAND OF RS.6,19,964 FOR NON COMPLIANC E OF SECTION 194 C TO THE TUNE OF RS.2,81,16,275/-. THE ASSESS EE HAS COMMITTED DEFAULT FOR THE REASON THAT TRANSPORTATIO N OF GOODS ARE IN THE NATURE OF CONTINUOUS PROCESS AND THE PAYMENT S OF TRANSPORTATION CHARGES ARE EXCEEDING RS.20,000/- DU RING THE PERIOD UNDER CONSIDERATION. HENCE, THE DEDUCTOR AS SESSEE CO. DOES NOT COVER IN THE AMBIT OF CIRCULAR NO.715 DATED 8.8 .95. THE C.I.T. (A)-VI, BARODA HAS PRONOUNCED ORDER AND VIDE ORDER NO.CAB / VI-181/2006-07 DATED 5.2.2007 HAS DELETED ENTIRE DEMAND OF RS.6,19,964/- FOR THE REASON THAT NO SPEC IFIC CONTRACT HAS TAKEN PLACE FOR SPECIFIC PERIOD AND THE SAME CO ULD NOT BE ESTABLISHED. ACCORIDNGLY, THE DEMAND HAS REDUCED T O NIL. THE HONBLE I.T.A.T. AHMEDABAD BENCH (CAMP AT BAROD A) VIDE ORDER NO.ITA NO.1687/AHD/2007 HAS PASSED AN ORDER W HICH IS REPRODUCED HERE UNDER: THIS IS AN APPEAL FILED BY THE REVENUE, PERTAINS T O THE ASSESSMENT YEAR 2003-04 AND DIRECTED AGAINST THE OR DER OF CIT(A)-III, BARODA. AT THE TIME OF HEARING BOTH THE PARTIES AGREED THAT THIS APPEAL PERTAINS TO TAX EFFECT BELOW RS.2 LAKHS. WE ALSO F IND THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY THE REVENUE IS LE SS RS.2 LAKHS. THEREFORE, IN VIEW OF THE DECISION OF THE BOMBAY HI GH COURT IN THE CASE OF PITHWA ENGINEERING WORKS REPORTED IN 276 IT R 519, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. A CCORDINGLY, THE MA NO.18 2 /AHD/2009 2010 (ARISING OUT OF ITA NO.1687/AHD/2007) ITO VS. PRASHANT HYDROCARBONS P.LTD. ASST.YEAR 2003-04 - 3 - APPEAL FILED BY THE REVENUE IS DISMISSED. BY THE A SSESSEE IS PARTLY ALLOWED. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED ORDER PRONOUNCED IN THE OPEN COURT ON 26.9.2008. HENCE THE ORDER OF THE I.T.A.T. HAS INCONSISTENTLY PASSED WHEREIN THERE IS NO RELEVANCE WITH THE PRESENT CASE IN WHIC H THE DEMAND RAISED BY THE A.O. IS OF RS.6,19,964 WHEREAS IN THE ITAT ORDER IT HAS STATED THAT THE TAX EFFECT IS BELOW RS.2 LAKHS. FURTHER THE ORDER PASSED BY CIT(A)-VI, BARODA WHEREIN IN THE ITATS ORDER IT WAS MENTIONED AS CIT(A)-III, BARODA . I REQUEST YOUR KIND HONOUR THAT NECESSARY AMENDMENT MAY KINDLY BE DONE BY RECALLING THE ORIGINAL ORDER PASSED VIDE ITA NO.1687/AHD/2007 FOR A.Y. 2003-04. TO SUBSTANTIATE THE FOLLOWING DOCUMENTS IS ENCLOSED FOR YOUR READY REFERENCE AND NECESSARY ACTION: 3. ON THE DATE OF HEARING, NO ONE APPEARED FROM THE SIDE OF THE RESPONDENT-ASSESSEE, HOWEVER, REVENUE DEPARTMENT HA S PLACED ON RECORD THE SERVICE OF NOTICE ON THE RESPONDENT-ASSESSEE. IT WAS AFFIRMED BY THE REVENUE OFFICER THAT THE SERVICE OF NOTICE WAS MADE ON 18/05/2011 AT THE NEW ADDRESS PROVIDED AND AS AN EVIDENCE AN ACKNOWLE DGEMENT OF SERVICE OF THE NOTICE WAS ENCLOSED. IT HAS ALSO BEEN NOTIC ED BY US THAT IN THE PAST THIS CASE WAS ADJOURNED ON NUMBER OF OCCASIONS DUE TO NON-ATTENDANCE. 4. HAVING HEARD THE SUBMISSIONS MADE FROM THE SIDE OF THE REVENUE DEPARTMENT AND ON CAREFUL PERUSAL OF THE ORDER OF S ECTION 201(1) & 201(1A) DATED 22/08/2006 AND THE IMPUGNED ORDER OF LEARNED CIT(APPEALS) DATED 05/02/2007, IT IS APPARENT THAT THE TDS LIABILITY OF RS.6,19,964/- WAS IMPOSED ON THE ASSESSEE, THEREFOR E, OBVIOUSLY IT WAS HIGHER THAN THE PRESCRIBED LIMIT FOR WHICH AN APPEA L OF THE REVENUE COULD MA NO.18 2 /AHD/2009 2010 (ARISING OUT OF ITA NO.1687/AHD/2007) ITO VS. PRASHANT HYDROCARBONS P.LTD. ASST.YEAR 2003-04 - 4 - BE FILED. DUE TO THIS REASON, THE MISTAKE BEING AP PARENT AS COMMITTED VIDE ITAT ORDER DATED 26/09/2008 (REFERRED SUPRA), WE HEREBY RECALL THE SAID ORDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE HEARING OF THIS CASE IN DUE COURSE AS PER LAW. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 27/ 05 / 2011. SD/- SD/- ( D.C. AGRAWAL ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMB ER AHMEDABAD; DATED 27 / 05 /2011 T.C. NAIR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VI, BARODA 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY // (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD MA NO.18 2 /AHD/2009 2010 (ARISING OUT OF ITA NO.1687/AHD/2007) ITO VS. PRASHANT HYDROCARBONS P.LTD. ASST.YEAR 2003-04 - 5 - 1. DATE OF DICTATION.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 31.5.2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31.5.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER