ACIT, CHENNAI V. S.Kathavarayan, CHENNAI

MA 192/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9271 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Assessee Lawyers: M KARUNAKARAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.A.NO.192/MDS/2012 (IN I.T.A.NO. 622/MDS/2012) ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME-TAX, BUSINESS CIRCLE-XI, CHENNAI. VS. SHRI S. KATHAVARAYAN, 15, SOUTH MADA CHURCH ST., ROYAPURAM, CHENNAI 13. PAN AKDPK8534G. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SHAJI P. JACOB, IRS, ADDL. CIT RESPONDENT BY : SHRI M. KARUNAKARAN, ADVO CATE DATE OF HEARING : 16 TH NOVEMBER, 2012 DATE OF PRONOUNCEMENT : 16 TH NOVEMBER, 2012 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE REVENU E IN THE CONTEXT OF THE ORDER OF THE TRIBUNAL DATED 24.5.201 2 PASSED IN ITA NO.622/MDS/2012. THE TEXT OF THE PETITION IS EXTRA CTED BELOW : 1. THE ORDER OF THE HONBLE ITAT IS SOUGHT TO BE REVISED. MA 192/12 :- 2 -: 2. THE HONBLE ITAT VIDE PARA 5 PAGE NO.3 HELD REGARDING THE FREIGHT CHARGES THE TOTAL ADDITION W AS ` 69,54,784/-. THE ASSESSEE HAS SUBMITTED DETAILS F OR ` 28,38,335/-. THIS IS AS PER THE REMAND REPORT FIL ED BY THE ASSESSING OFFICER. THIS AMOUNT ALONE WAS ACCEPTED BY THE COMMISSIONER OF INCOME- TAX(APPEALS). HE CONFIRMED THE BALANCE OF ` 41,16,449/-. HERE ALSO, WE FIND NO INFIRMITY IN TH E ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) THIS DECISION IS BASED ON THE ORDER OF THE CIT(A). 3. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THA T IN THE REMAND REPORT THE AO HAS STATED THE ASSESSEE HAS FURNISHED DOCUMENTARY EVIDENCE IN THE FORM OF SUPPORTING VOUCHERS TO THE EXTENT OF ` 28,38,335/- AND AO SAID THAT GENUINENESS OF THIS EXPENDITURE IS ALS O DOUBTFUL APART FROM NON-DEDUCTION OF TDS. BUT, THE CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE DID NOT DEDUCT TAX AND EVEN THOUGH THE PAYMENT WERE SUPPORTED BY THE VOUCHERS, THE EXPENDITURE ATTRACT DISALLOWANCE U/S. 40(A)(IA) BECAUSE OF NON-DEDUCTIO N MA 192/12 :- 3 -: OF TAX AT SOURCE. THE ITAT IN ITS ORDER ALSO DID N OT CONSIDER THE ABOVE SAID GROUNDS PUT FORTH BY THE DEPARTMENT IN PROPER PERSPECTIVE AND HAS CONFIRMED THE LD. CIT(A) ORDER ON THIS ISSUE. HENCE, THE ORD ER OF THE HONBLE ITAT NEEDS TO BE REVISED. THE REMAND REPORT SENT BY THE AO IS ATTACHED HERE. 4. SO ON THE GROUND OF NON-DEDUCTION OF TDS AND NON-GENUINENESS THE EXPENDITURE TO THE EXTENT O F ` 28,38,335/- HAS TO BE DISALLOWED. 3. WE FIND THAT THE ASSESSING AUTHORITY IS SEEKING A REVIEW OF THE ORDER ALREADY PASSED BY THE TRIBUNAL. THIS IS NOT PERMISSIBLE IN LAW. THE PETITION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 16 TH NOVEMBER, 2012. SD/- SD/- (VIKAS AWASTHY) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 16 TH NOVEMBER , 2012 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR