Ashok Auto Sales Ltd., Agra V. J.C.I.T., Range-4, Agra

MA 27/AGR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1539 (ITAT-AGRA)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 16-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ATHESHAM ANSARI
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMB ER M.A. NO. 27/AGRA/2013 (IN ITA NO. 139/AGRA/2013) ASST. YEAR : 2009-10 ASHOKA AUTO SALES LTD., VS. J.C.I.T., RANGE 4 , 12/146, NUNHAI, AGRA. AGRA. (PAN: AABCA 3711C) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY` : SHRI ATHESHAM ANSARI, JR. DR DATE OF HEARING : 07.02.2014 DATE OF PRONOUNCEMENT : 14.02.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF THE MISCELLANEOUS APPL ICATION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 19 .07.2013. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IN APPEAL CHALLENGED THE DISALLOWANCE OF INTEREST OF RS.18,02,893/- U/S. 40( A)(IA) OF THE IT ACT. THE AO MADE ADDITION OF RS.18,02,893/- U/S. 40(A)(IA) FOR NON-DEDUCTION OF TDS ON INTEREST PAID TO TATA CAPITAL LTD. OF RS.16,94,743/ - AND TO TATA MOTOR FINANCE LTD. RS.1,08,150/-. AS THE ASSESSEE HAS ADMITTED THAT TD S WHICH WAS REQUIRED TO BE DEDUCTED ON PAYMENT OF INTEREST AS PER THE ACT, HAS NOT BEEN DEDUCTED AND PAID DUE M.A. NO. 27/AGRA/2013 2 TO INADVERTENT MISTAKE, THE AO MADE THE ADDITION. T HE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSI ONS OF THE ASSESSEE ARE REPRODUCED IN THE APPELLATE ORDER. THE SOLE CONTENT ION OF THE ASSESSEE WAS THAT THE DISALLOWANCE UNDER THE ABOVE PROVISION CAN BE MADE IN RESPECT OF THE EXPENDITURE PAYABLE AT THE END OF THE YEAR AND NOT ON THE AMOUN TS ALREADY PAID WITHOUT DEDUCTING TAX. THE ASSESSEE RELIED UPON THE DECISIO N OF SPECIAL BENCH OF ITAT, VISHAKHAPATNAM BENCH IN THE CASE OF MERILYN SHIPPIN G & TRANSPORTS VS. ACIT, 136 ITD 23, IN WHICH IT WAS HELD THAT THE ADDITION COULD BE MADE WHEN TAX HAS NOT BEEN DEDUCTED ON THE EXPENDITURE PAYABLE AT THE END OF THE YEAR AND NOT ON THE EXPENDITURE WHICH HAS ALREADY BEEN PAID. THE LD. CI T(A), HOWEVER, FOUND THAT THE ASSESSEE HAS ADMITTED THAT TAX HAS NOT BEEN DEDUCTE D WHICH WAS DUE. FURTHER, THE DECISION OF ITAT SPECIAL BENCH ABOVE IS NO LONGER A PPLICABLE AS THE OPERATION OF THE DECISION HAS BEEN STAYED BY THE HONBLE HIGH CO URT. THEREFORE, THE ADDITION WAS CONFIRMED. 3. AFTER HEARING BOTH THE PARTIES, THE TRIBUNAL DIS MISSED THE APPEAL OF THE ASSESSEE. THE FINDINGS OF THE TRIBUNAL IN PARA 3 OF THE ORDER DATED 19.07.2013 ARE REPRODUCED AS UNDER : 3. ON CONSIDERATION OF THE SUBMISSIONS OF THE PART IES, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. T HE ASSESSEE ADMITTED BEFORE THE AO THAT TDS HAS TO BE DEDUCTED ON PAYMEN T OF INTEREST. THEREFORE, THE ASSESSEE ADMITTED APPLICABILITY OF P ROVISIONS OF SECTION 40(A)(IA) OF THE IT ACT IN THE MATTER. THE LD. COUN SEL FOR THE ASSESSEE M.A. NO. 27/AGRA/2013 3 ONLY SUBMITTED THAT EVEN IF DECISION OF SPECIAL BEN CH ABOVE HAS BEEN STAYED BY ANDHRA PRADESH HIGH COURT, BUT THE PRINCI PLE IS STILL IN FAVOUR OF THE ASSESSEE. WE ARE AFRAID TO ACCEPT SUC H CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE BECAUSE ONCE THE ORDER OF ITAT SPECIAL BENCH IS STAYED BY THE HONBLE HIGH COURT, IT IS NO LONGER APPLICABLE IN FAVOUR OF THE ASSESSEE AS ON TODAY. THEREFORE, T HERE IS NO QUESTION OF ITS PRINCIPLE REMAINED IN FAVOUR OF THE ASSESSEE . SINCE THE DECISION OF SPECIAL BENCH ABOVE HAS ADMITTEDLY BEEN STAYED B Y THE HONBLE HIGH COURT, THEREFORE, THE SAME CANNOT BE APPLIED I N ANY FORM IN FAVOUR OF THE ASSESSEE AS ON TODAY. THE APPEAL OF T HE ASSESSEE HAS, THUS, NO MERIT AND IS ACCORDINGLY DISMISSED. 4. THE ABOVE FACTS AND SUBMISSIONS OF THE LD. COUNS EL FOR THE ASSESSEE WOULD CLEARLY REVEAL THAT THE LD. COUNSEL FOR THE ASSESSE E HAS ONLY RAISED THE POINT THAT EVEN IF THE DECISION OF SPECIAL BENCH HAD BEEN STAY ED BY ANDHRA PRADESH HIGH COURT, BUT THE PRINCIPLE IS STILL IN FAVOUR OF THE ASSESSEE. SUCH A CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED AND THE APPEAL OF THE ASS ESSEE WAS DISMISSED. 5. ON THE LAST DATE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE DECISION OF HONBLE ALLAHABAD HIGH COURT DATED 09.0 7.2013 IN THE CASE OF CIT VS. M/S. VECTOR SHIPPING SERVICES PVT. LTD. IN INCOME T AX APPEAL NO. 122 OF 2013 UPHOLDING THE DECISION OF ITAT PASSED BY SPECIAL BE NCH IN THE CASE OF MERILYN SHIPPING AND TRANSPORTS LTD. (SUPRA). THE LD. COUNS EL FOR THE ASSESSEE WAS, THEREFORE, DIRECTED TO EXPLAIN THAT WHEN THE AFORES AID DECISION WAS NOT CITED OR ARGUED AT THE TIME OF HEARING OF MAIN APPEAL AND TH E ONLY CONTENTION RAISED REGARDING STAY GRANTED BY ANDHRA PRADESH HIGH COURT AGAINST THE DECISION OF M.A. NO. 27/AGRA/2013 4 SPECIAL BENCH AND THAT THE TRIBUNAL HAS NO POWER TO REVIEW THEIR OWN ORDERS, THE LD. COUNSEL FOR THE ASSESSEE WAS GRANTED TIME TO AD DRESS ON BOTH THESE POINTS. THE MISCELLANEOUS APPLICATION WAS ACCORDINGLY ADJOURNED TO 07.02.2014. ON THE DATE OF HEARING ON 07.02.2014, NONE APPEARED ON BEHALF OF T HE ASSESSEE TO ARGUE THE MISCELLANEOUS APPLICATION OR TO EXPLAIN ANYTHING AS NOTED ABOVE. THE LD. DR SUBMITTED THAT ONCE THE TRIBUNAL HAD DECIDED APPEAL ON MERITS, IT HAS NO POWER TO REVIEW THEIR OWN ORDERS AND ALSO SUBMITTED THAT WHA TEVER PLEA WAS RAISED BEFORE THE TRIBUNAL HAS BEEN DECIDED. THEREFORE, NO NEW PL EA SHOULD BE ENTERTAINED WHILE CONSIDERING THE MISCELLANEOUS APPLICATION. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L ON RECORD. SECTION 254(2) PROVIDES THAT THE APPELLATE TRIBUNAL MAY WIT H A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD AMEND ANY ORDER PASSED BY IT U NDER SUB-SECTION (1) AND SHALL MAKE SUCH AMENDMENT. THE ORDER OF THE TRIBUNAL DATE D 19.07.2013 IS QUOTED ABOVE. IT WOULD CLARIFY THAT THE ASSESSEE ADMITTED BEFORE THE AO THAT TDS HAS TO BE DEDUCTED ON PAYMENT OF INTEREST AND THE ASSESSEE AD MITTED APPLICABILITY OF PROVISIONS OF SECTION 40(A)(IA) OF THE IT ACT IN TH E MATTER. THE LD. COUNSEL FOR THE ASSESSEE ONLY SUBMITTED DURING THE COURSE OF ARGUME NTS THAT EVEN IF THE DECISION OF SPECIAL BENCH HAS BEEN STAYED BY ANDHRA PRADESH HIG H COURT BUT THE PRINCIPLE STILL IN FAVOUR OF THE ASSESSEE. THE SUBMISSIONS OF THE A SSESSEE WAS NOT ACCEPTED BECAUSE WHEN THE DECISION OF SPECIAL BENCH HAS BEEN STAYED BY THE JURISDICTIONAL M.A. NO. 27/AGRA/2013 5 HIGH COURT, THE SAME COULD NOT BE APPLIED IN FAVOUR OF THE ASSESSEE ON THE DAY OF PASSING OF THE JUDGMENT BY THE TRIBUNAL. IT IS WELL SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW THEIR OWN ORDERS PASSED ON MERIT S. WE RELY UPON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V S. ANAMIKA BUILDERS PVT. LTD., 251 ITR 585, WHEREIN IT IS HELD THAT THE TRIBUNAL S HOULD NOT CHANGE ITS VIEW ALREADY TAKEN IN THE MATTER. WE ARE FURTHER FORTIFI ED IN OUR VIEW BY THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CI T VS. IDEAL ENGINEERS, 251 ITR 743, THE DECISION OF HONBLE M.P. HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING, 257 ITR 235 (MP) AND OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. ADYAR GATE HOTEL LTD., 294 ITR 155 IN WHICH HONBLE MADRAS HIGH COURT ALSO HELD THAT THE MISCELLANEOUS APPLICATION SHOULD NOT BE CONSIDERED ON THE DEBATABLE ISSUE. HONBLE CALCUTTA HIGH COURT IN THE CASE OF HINDUSTAN LEVER LTD. 284 ITR 42 HELD THAT THE MISTAKE MUST BE SO OBVIOUS THAT IT CAN BE EASILY CORRECTED TO WIT ANY ARITHMETICAL MISTAKE, WRONG QUOTATION OF SECTION ETC. AND NOT ON DEBATABLE ISSUES. SINCE THE SOLE PLEA OF THE ASSESS EE WAS DECIDED AGAINST THE ASSESSEE, THEREFORE, THE SAME CANNOT BE REVIEWED BY THE TRIBUNAL. IT IS ADMITTED FACT THAT DECISION OF HONBLE ALLAHABAD HIGH COURT DATED 09.07.2013 IN THE CASE OF VECTOR SHIPPING SERVICES PVT. LTD. WAS NOT CITED OR QUOTED DURING THE COURSE OF ARGUMENTS OF MAIN APPEAL. THEREFORE, IT WAS NOT PAR T OF RECORD OF THE TRIBUNAL. THE ASSESSEE IN MISCELLANEOUS APPLICATION ALSO STATED T HAT THE AFORESAID DECISION OF ALLAHABAD HIGH COURT CAME TO THEIR KNOWLEDGE SUBSEQ UENTLY. THEREFORE, THE M.A. NO. 27/AGRA/2013 6 ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE APPARE NT FROM THE RECORD OF THE TRIBUNAL. WHEN ON THE LAST DATE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE WAS ASKED TO EXPLAIN ABOVE LEGAL POSITION AND THE CASE WAS ADJOURNED, HE DID NOT APPEAR ON THE DATE OF HEARING TO EXPLAIN ANYTHING ON THE I SSUE. IT, THEREFORE, APPEARS THAT THE ASSESSEE AND THEIR COUNSEL HAVE NOTHING TO SAY IN THE MATTER AND ARE NOT INTERESTED IN PROSECUTING THE AFORESAID MISCELLANEO US APPLICATION. THE SAME IS, THEREFORE, LIABLE TO BE DISMISSED. CONSIDERING THE ABOVE DISCUSSION, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMIS SED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. 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