ITO, Bhubaneswar V. M/s. Dazzle Beverages, Bhubaneswar

MA 26/CTK/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5630 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 29-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J K LENKA
• Section: 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM MISCELLANEOUS APPLICATION NO. 26 /CTK/201 7 (ARISING OUT OF ITA NO. 180/CTK/2015) ( / ASSESSMENT YEAR : 20 05 - 20 06 ) ITO WARD - 5 (4), BHUBANESWAR VS. M/S DAZZLE BEVERAGES, A/7, CNI COMPLEX, PATIA, BHUBANESWAR ./ PANNO. : A AEFD 1786 C ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI J.K.LENKA, DR /ASSESSEE BY : NONE / DATE OF HEARING : 06 / 1 2 /2019 / DATE OF PRONOUNCEMENT : 16 / 1 2 /2019 / O R D E R PER L.P.SAHU , A M : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE SEEKING RESTORAT ION OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 180 /CTK/201 5 VIDE ORDER DATED 08 . 11 .201 6 . 2. LD. D R BEFORE US SUBMITTED THAT THE TRIBUNAL WHILE DECIDING THE CASE HAS NOT FOLLOWED THE DECISIONS OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. CRESCE MENT EXPORT SYNDICATE & OTHERS (2013)33 TAXMAN.COM 250 AND THE HON'BLE GUJRAT HIGH COURT IN THE CASE OF CIT VS. SIKNDARKHAN N. TUNVAR(2013) 33 TAXMAN.COM 133 ON THE GROUND THAT IF THERE IS C ONTRARY DECISIONS OF HON'BLE HIGH COURTS ON AN ISSUE AND NONE OF WHICH IS THAT OF HON'BLE JURISDICTIONAL HIGH COURT, THEN THE M A NO. 26 /CTK/201 7 2 DECISION IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED IN VIEW OF DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. VEGETABL E PRODUCTS LTD., 88 ITR 192(SC). IT WAS ALSO SUBMITTED BY LD. DR THAT THE HON'BLE SUPREME COURT IN THE CASE OF PALAM GAS SERVICES VS. CIT(2017) TAXMAN.COM 43(SC) HAS OVERRULED THE DECISION OF ALLAHABAD HIGH COURT IN THE CAS E OF CIT VS. VICTOR SHIPPING SERVICES (P) LTD. ; (2013)357 ITR 642(AII.) AND HELD DECISION RENDERED BY THE HONBLE HIGH COURT IN THE SAID CASE WITH REGARD TO PROVISIONS OF SECTION 40(A)(IA)OF THE INCOME TAX ACT,1961 DOES NOT COVER NOT ONLY THOSE CASES WHERE THE AMOUNT IF PAYABLE BUT ALSO WHEN IT IS PAID. THEREFORE, LD. DR SUBMITTED THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL MAY KINDLY BE RESTORED. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THE CASE WAS CALLED FOR SECOND ROUND. THEREFORE, THE BENCH DE CIDED TO DISPOSE OFF THE MISCELLANEOUS APPLICATION OF THE REVENUE AFTER CONSIDERING THE SUBMISSIONS OF LD. DR 4. AFTER CONSIDERING THE SUBMISSIONS OF LD. DR AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD , WE FIND THAT THE APPEAL OF THE ASSESSEE IN IT A NO. 180 /CTK/201 5 WAS ALLOWED BY THE TRIBUNAL VIDE ORDER DATED 08.11.2016 RELYING ON THE DECISION OF H ON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. VICTOR SHIPPING SERVICES (P) LTD . , (2013) 357 I TR 642(ALL), WHEREIN IT HAS BEEN HELD THAT FOR DISALLOWING EXPENSES FROM BUSINESS AND PROFESSION ON THE GROUND THAT TAX HAS NOT M A NO. 26 /CTK/201 7 3 BEEN DEDUCTED AT SOURCE, THE AMOUNT SHOULD BE PAYABLE AND NOT IT HAS BEEN PAID BY THE END OF THE YEAR. HOWEVER, BEFORE US, LD.DR RELIED ON THE HON'BLE SUPREME COURT IN THE CASE OF PALAM GAS SERVICES (SUPRA) AND SUBMITTED THAT THE HONBLE SUPREME COURT HAS OVERRULED THE DECISION OF ALLAHABAD HIGH COURT IN THE CASE OF VICTOR SHIPPING SERVICES (P) LTD. (SUPRA). CONSIDERING THE SUBMISS IONS AND THE DECISION RELIED ON BY THE LD. DR BEFORE US, WE AGREE WITH THE CONTENTION OF LD. DR. ACCORDINGLY, WE RESTORE THE IMPUGNED ORDER DATED 08.11.2016, PASSED BY THE TRIBUNAL IN ITA NO.180/CTK/2015 AND DIRECT THE REGISTRY TO LIST THE APPEAL OF THE R EVENUE IN DUE COURSE. 5 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED TO THE EXTENT AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 / 12 /2019. SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED 16 / 12 /201 9 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) ITAT CUTTACK BENCH, CUTTACK 1. / THE APPELLANT - ITO WARD - 5 (4), BHUBANESWAR 2. / THE RESPONDENT - M/S DAZZLE BEVERAGES, A/7, CNI COMPLEX, PATIA, BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//