Mrs. Pushpaben D.Patel, Surat V. The Income tax Officer,Ward-6(3), Surat

MA 31/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1570 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-01-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: M K PATEL
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) M A. NO. 31 /AHD/2013 (IN ITA NO. 117/AHD/2011) (ASSESSMENT Y EAR: 2007-08) PUSHPABEN D. PATEL 91, VADIYA NAGAR, OPP. NAGARDAS HALL, NEAR GUJARAT GAS CIRCLE, ADAJAN, SURAT. V/S THE I.T.O. WARD-6(3) SURAT (APPELLANT) (RESPONDENT) PAN: AHXPP 1104C APPELLANT BY : SHRI M.K. PATEL. A.R. RESPONDENT BY : SHRI P.L KUREEL, SR. D.R. ( )/ ORDER DATE OF HEARING : 17-01-2014 DATE OF PRONOUNCEMENT : 21-02-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. BY THIS M.A. THE ASSESSEE HAS SUBMITTED FOR RECALLI NG OF THE EX-PARTE ORDER OF TRIBUNAL IN ITA NO. 117/AHD/2011 DATED 24. 08.2012. 2. BEFORE US, THE LD. A.R. SUBMITTED THAT THE ISSUE BE FORE HONBLE TRIBUNAL IN ITA NO. 117/AHD/2011 FOR A.Y. 2007-08 WAS WITH R ESPECT TO DISALLOWANCE U/S 40(A)(IA). SINCE NONE WAS PRESENT ON BEHALF OF ASSESSEE, THE APPEAL WAS DECIDED ON THE BASIS OF WRITTEN SUBM ISSIONS. HE FURTHER MA NO 31/AHD/2013 (INI TA NO.117/A/2011) . A.Y. 2007- 08 2 SUBMITTED THAT IN THE WRITTEN SUBMISSIONS, FOR THE REASONS STATED THEREIN, IT WAS URGED THAT NO DISALLOWANCE ON ACCOUNT OF NON DE DUCTION OF TDS U/S 194C FOR PAYMENT OF TRUCK RENT WAS CALLED FOR. HE FURTHER SUBMITTED THAT HOWEVER THE ISSUE WAS SENT BACK TO A.O. TO DECIDE T HE ISSUE ON THE BASIS OF THE SPECIAL BENCH DECISION IN THE CASE OF MERILY N SHIPPING AND TRANSPORTERS (ITA NO. 477/VIZ/2008). HE THEREFORE S UBMITTED THAT THE ORDER BE RECALLED AND THE ISSUE BE DECIDED ON THE B ASIS OF DECISIONS RELIED UPON BY THE ASSESSEE IN THE WRITTEN SUBMISSIONS. 3. THE LD. D.R. ON THE OTHER HAND OPPOSED THE PRAYER O F LD. A.R. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND, THAT THE ISSUE WITH RESPECT TO DISALLOWANC E U/S. 40(A)(IA) WAS REMITTED TO THE FILE OF A.O. FOR DECIDING IT ON THE BASIS OF THE DECISION OF SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING (SUPR A). WE ALSO FIND THAT SUBSEQUENTLY, THE AFORESAID SPECIAL BENCH DECISION HAS BEEN OVERRULED BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF CIT VS. SIKANDAR KHAN TUNVAR (2013) 357 ITR 312 (GUJ.). 5. HONBLE GUJARAT HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2003) 262 ITR 146 (GUJ.) HAS H ELD THAT A DECISION OF JURISDICTIONAL HIGH COURT, EVEN IF RENDERED SUBS EQUENTLY, WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD INVESTING AN AUTHORITY WITH JURISDICTION TO RECTIFY THE MISTAKE. 6. IN VIEW OF THE AFORESAID FACTS AND THE DECISIONS O F HONBLE HIGH COURT, WE ARE OF THE VIEW THAT THERE IS APPARENT MISTAKE O N RECORD IN THE ORDER MA NO 31/AHD/2013 (INI TA NO.117/A/2011) . A.Y. 2007- 08 3 PASSED IN ITA NO. 117/AHD/2011 ORDER DATED 24.08.20 12. WE ACCORDINGLY RECALL THE AFORESAID ORDER AND DIRECT T HE REGISTRY TO FIX THE APPEAL FOR HEARING IN DUE COURSE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN OPEN COURT ON 21 - 02 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,A HMEDABAD