The Assistant Commissioner of Income Tax, Circle-1, , Eluru V. The District Cooperative Bank Limited , Eluru

MA 32/VIZ/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3260 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 05-12-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B RAMA KRISHNA
• Keywords: Tax effect; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER M.A.NO. 32 /VIZ/2019 (ARISING OUT OF I . T . A . NO. 166 /VIZ/2019 ) (ASST. YEAR : 20 1 4 - 1 5 ) ACIT, CIRCILE - 1, RAJAMAHENDRAVARAM. VS. M/S. THE DISTRICT CO - OPERATIVE CENTRAL BANK LTD., RA MACHANDRA RAO PET, ELURU, WEST GODAVARI DISTRICT. PAN NO. AADAT 1078 R (APP L ICANT ) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI , ADVOCATE DEPARTMENT BY : SHRI B. RAMA KRISHNA , SR. DR DATE OF HEARING : 06 / 0 3 /2020 . DATE OF PRONOUNCEMENT : 06 / 0 3 /20 20 . O R D E R PER V. DURGA RAO , JUDICIAL MEMBER BY FILING THIS MISC. APPLICATION REVENUE SEEKS RECALL OF THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO. 166 /VIZ/201 9 VIDE ORDER DATED 26 /0 6 /2019 ON THE GROUND THAT GROUND NOS. 5 & 6 ARE NOT ADJUDICATE D . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE LD. CIT(A), RAJAHMUNDRY IS ERRONEOUS IN LAW OR FACTS OR BOTH. 2. THE CIT(A) ERRED IN OBSERVING THAT SINCE THE PAYMENTS WERE ACTUALLY MADE AND GENUINE AND THE SAME ARE TO BE ALLOWED, 2 M A NO. 32/VIZ/2019 ( M/S. THE DISTRICT CO - OPERATIVE CENTRAL BANK LTD. ) WITHOUT APPRECIATING THE FACT THAT, THE CONTRIBUTIONS TO LIC, THOUGH STATED TO BE ON ACTUARIAL BASIS, DO NOT ENABLE THE ASSESSEE TO CLAIM DEDUCTION OF PAYMENTS MADE TO L IC SINCE THE SAME IS NOT IN ACCORDANCE WITH SECTIONS 36(1)), 40A(7) AND 40A(9). 3. THE CIT(A)OUGHT TO HAVE APPRECIATED THAT THE CONTRIBUTION MADE BY THE ASSESSEE TOWARDS GRATUITY FUND WAS TO AN UNAPPROVED GRATUITY FUND AND AS SUCH, THE CONTRIBUTION/ PAYMENT IS NOT AN ALLOWABLE DEDUCTION. 4. THE CIT(A) OUGHT TO HAVE RELIED UPON THE DECISION OF THE APEX COURT IN THE CASE OF M/S. SRI SAJJAN MILLS REPORTED IN 156 ITR 585 (SC), WHEREIN IT WAS CATEGORICALLY HELD THAT, AFTER INSERTION OF SECTION 40A, GRATUITY PAYMENT CANNOT BE ALLOWED ON GENERAL PRINCIPLES UNDER ANY OTHER S ECTIONS OF THE ACT. 5. THE CIT(A) ERRED IN DIRECTING THE AO TO ALLOW THE VEHICLE HIRE CHARGES OF RS.3,75,761/ - , THOUGH THE ASSESSEE FAILED TO MAKE TDS ON SUCH EXPENDITURE WARRANTING DISALLOWANCE U/S.40(A)(IA) OF THE ACT. 6. THOUGH THE TAX EFFECT IS BELOW THE MONETARY LIMIT PRESCRIBED BY CBDT FOR FILING REVENUE APPEAL; THE ORDER OF THE CIT(A) IS A COMPOSITE ORDER FOR ASSESSMENT YEAR 2014 - 15 & ASST. YEAR 2015 - 16 AND FOR ASST. YEAR 2015 - 16, THE TAX EFFECT IS AT RS.50.98 LAKHS, ABOVE THE THRESHOLD LIMIT FOR FI LING REVENUE APPEAL TO ITAT. 7. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND OR ALTER OR DELETE ANY GROUND AT THE TIME OF HEARING OF THE APPEAL. 8. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF APPEAL HEARING BEFORE THE HON'BLE ITAT. 3 . WE HAVE HEARD BOTH THE SIDES AND FIND FROM THE ORDER PASSED IN ITA NO. 166 /VIZ/201 9 , DATED 26 /0 6 /2019 THAT GROUND NOS. 5 & 6 ARE NOT ADJUDICATED, THEREFORE PRIMA - FACIE THERE IS A MISTAKE APPARENT ON RECORD, HENCE, IT HAS TO BE RECALLED . ACCORDINGLY, RECALL ED THE ORDER PASSED IN ITA NO. 166 /VIZ/2019 , DATED 26 /0 6 /2019 ONLY TO ADJUDICATE THE GROUND NOS. 5 & 6. REGISTRY IS DIRECTED TO POST THE APPEAL FOR HEARING ON 16/03/2020. 3 M A NO. 32/VIZ/2019 ( M/S. THE DISTRICT CO - OPERATIVE CENTRAL BANK LTD. ) AS THE DATE OF HEARING IS ANNOUNCED IN OPEN COURT, NO NEED TO ISSUE NOTICES TO THE PARTIES SEPARATELY . 4 . IN THE RESULT, MISC. APPLICATION FILED BY THE REVENUE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON TH IS 06 TH DAY OF MARCH , 2020 . SD/ - SD/ - (D.S. SUNDER SINGH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06 TH MARCH , 20 20 . VR/ - COPY TO: 1. THE ASSESSEE M/S. THE DISTRICT CO - OPERATIVE CENTRAL BANK LTD., RAMACHANDRA RAO PET, ELURU, WEST GODAVARI DISTRICT. 2. THE REVENUE ACIT, CIRCLE - 1 , R A JAMAHENDRAVARAM . 3. THE PR. CIT , RAJAMAHENDRAVARAM . 4. THE CIT(A) , RAJAMAHENDRAVARAM . 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.