PHULCHAND SONS INVESTMENTS P.LTD, V. DCIT CIR 2(2),

MA 321/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1459 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 28-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI C BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI SANJAY ARORA, AM & SHRI VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NO. 321/MUM/2013 ( ARISING FROM ITA NO. 1467/MUM/2010 A. Y - 2003-04 ) PHULCHAND SONS INVESTMENTS PVT. LTD. CABIN NO. 4, C/O- K. M. REALITIES P. LTD., 4 TH FLOOR, BHAGYODAYA BUILDING, 79, N. M. ROAD, FORT, MUMBAI VS DCIT, CIR. 2(2), AAYAKAR BHAVAN, M. K. ROAD MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AAACP8901G ASSESSEE BY SHRI RAJIV KHANDELWAL REVENUE BY MS. SONIA KUMAR DATE OF HEARING 24 TH JANUARY 2014 DATE OF PRONOUNCEMENT 24 TH JANUARY 2014 ORDER PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE IS SEEKING RECTIFICATION OF THE ORDER OF THIS TRIBUNAL DATED 1 1.3.2011 IN RESPECT OF THE FINDING ON THE ISSUE OF DENIAL OF CREDIT OF TDS RAI SED IN GROUND NO. 2 OF THE ASSESSEES APPEAL. 2. WE HAVE HEARD THE LD. A.R AS WELL AS LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. A.R OF THE ASS ESSEE HAS POINTED OUT THAT WHILE DECIDING THE GROUND NO. 2 THE TRIBUNAL H AS CONFIRMED THE ORDERS OF THE AUTHORITIES BELOW WHEREBY THE CREDIT FOR TDS OF ` 16,58,400/- WAS DISALLOWED FOR WANT OF TDS CERTIFICATES. HE HAS FUR THER POINTED OUT THAT THE ASSESSEE HAS PRODUCED THE TDS CERTIFICATE IN RESPEC T OF THIS AMOUNT VIDE LETTER DATED 6.11.2004. IN SUPPORT OF HIS CONTENTIO N THE LD. A.R OF THE ASSESSEE HAS INVITED OUR ATTENTION TO THE LETTER DA TED 9.11.2004 WHICH MA 321/M/2013 PHULCHAND SONS INVESTMENTS PVT. LTD. 2 WAS SUBMITTED BY THE ASSESSEE IN RESPONSE TO LETTER DATED 20.10.2004 OF THE ASSESSING OFFICER. THUS, THE LD. A.R HAS SUBMIT TED THAT THE CREDIT OF TDS WAS DISALLOWED DESPITE THE FURNISHING OF TDS CE RTIFICATE BY THE ASSESSEE AND THEREFORE, THERE IS A MISTAKE IN THE I MPUGNED ORDER OF THE TRIBUNAL WHICH REQUIRES TO BE RECTIFIED U/S 254(2). ON THE OTHER HAND, THE LD. D.R HAS NOT DISPUTED THE RECORD FILED BY THE AS SESSEE I.E. LETTER DATED 20.10.2004 AND 9.11.2004. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RECORD WE NOTE THAT THE TRIBUNAL WHILE DECIDING THE APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER DATED11.3.2011 HAS DISMISSED TH E GROUND NO. 2 OF THE ASSESSEES APPEAL IN PARA 6 AND 7 AS UNDER: 6. GROUND NO. 2 RAISED BY THE ASSESSEE READS AS FO LLOWS: THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE AS SESSING OFFICER IN NOT ALLOWING CREDIT FOR TDS OF A SUM OF ` 16,58,400/-. THE APPELLANTS CONTEND THAT THE ASSESSING OFFICER O UGHT TO HAVE ALLOWED CREDIT FOR TDS AND THIS BEING A MISTAK E APPARENT FROM RECORD, THE CIT(A) OUGHT TO HAVE GIVE N A SUITABLE DIRECTION TO THE ASSESSING OFFICER IN THIS BEHALF. 7. ADMITTEDLY THE ASSESSEE DID NOT FILE THE NECESSA RY TDS CERTIFICATES EITHER BEFORE THE A.O OR CIT(A) OR BEF ORE US. WE DO NOT FIND ANY MERIT IN GROUND NO. 2 RAISED BY THE AS SESSEE AND THEREFORE, THE SAME IS DISMISSED. 4. IT IS CLEAR FROM THE ORDER OF THE TRIBUNAL THAT THE ASSESSEES CLAIM FOR CREDIT OF TDS OF ` 16,58,400/- WAS DENIED FOR WANT OF TDS CERTIFICATES. WE FIND THAT THE A.O ASKED THE ASSESSEE VIDE LETTER DA TED 20.10.2004 TO FURNISH TDS CERTIFICATES. THE ASSESSEE CLAIMED TO H AVE SUBMITTED TDS CERTIFICATES VIDE LETTER DATED 9.11.2004. THUS, PRI MA FACIE IT APPEARS THAT TDS CERTIFICATES IN QUESTION WERE FURNISHED BY THE ASSESSEE BEFORE THE MA 321/M/2013 PHULCHAND SONS INVESTMENTS PVT. LTD. 3 ASSESSING OFFICER. THE ORDER OF THE TRIBUNAL IN PAR A 6 AND 7 IS BASED ON WRONG ASSUMPTION OF FACTS IN THIS RESPECT WHICH CON STITUTES AN APPARENT MISTAKE ON THE FACE OF THE ORDER AND REQUIRES TO BE RECTIFIED. ACCORDINGLY, WE MODIFY THE FINDING IN PARA 7 AS UNDER: 7. THE CREDIT OF TDS IN RESPECT OF 7. THE CREDIT OF TDS IN RESPECT OF 7. THE CREDIT OF TDS IN RESPECT OF 7. THE CREDIT OF TDS IN RESPECT OF ` `` ` 16,58,400/ 16,58,400/ 16,58,400/ 16,58,400/- -- - HAS HAS HAS HAS BEEN DENIED BY THE A.O BEEN DENIED BY THE A.O BEEN DENIED BY THE A.O BEEN DENIED BY THE A.O AS WELL AS CIT(A) ON THE GROUND THAT THE ASSESSEE H AS NOT FURNISHED THE TDS AS WELL AS CIT(A) ON THE GROUND THAT THE ASSESSEE H AS NOT FURNISHED THE TDS AS WELL AS CIT(A) ON THE GROUND THAT THE ASSESSEE H AS NOT FURNISHED THE TDS AS WELL AS CIT(A) ON THE GROUND THAT THE ASSESSEE H AS NOT FURNISHED THE TDS CERTIFICATE. WE NOTE THAT THE ASSESSEE HAS CERTIFICATE. WE NOTE THAT THE ASSESSEE HAS CERTIFICATE. WE NOTE THAT THE ASSESSEE HAS CERTIFICATE. WE NOTE THAT THE ASSESSEE HAS SUBMITTE D SUBMITTED SUBMITTED SUBMITTED A LETTER DATED A LETTER DATED A LETTER DATED A LETTER DATED 9.11.2004 ALONGWITH TDS CERTIFICATES IN QUESTION. A CCORDINGLY, THE A.O IS 9.11.2004 ALONGWITH TDS CERTIFICATES IN QUESTION. A CCORDINGLY, THE A.O IS 9.11.2004 ALONGWITH TDS CERTIFICATES IN QUESTION. A CCORDINGLY, THE A.O IS 9.11.2004 ALONGWITH TDS CERTIFICATES IN QUESTION. A CCORDINGLY, THE A.O IS DIRECTED TO VER DIRECTED TO VER DIRECTED TO VER DIRECTED TO VERIFY THIS FACT OF FURNISHING OF TDS A ND THEN ALLOW THE CLAIM OF IFY THIS FACT OF FURNISHING OF TDS AND THEN ALLOW T HE CLAIM OF IFY THIS FACT OF FURNISHING OF TDS AND THEN ALLOW T HE CLAIM OF IFY THIS FACT OF FURNISHING OF TDS AND THEN ALLOW T HE CLAIM OF THE ASSESSEE IF IT IS FOUND THAT THE ASSESSEE HAS A LREADY FURNISHED THE TDS THE ASSESSEE IF IT IS FOUND THAT THE ASSESSEE HAS A LREADY FURNISHED THE TDS THE ASSESSEE IF IT IS FOUND THAT THE ASSESSEE HAS A LREADY FURNISHED THE TDS THE ASSESSEE IF IT IS FOUND THAT THE ASSESSEE HAS A LREADY FURNISHED THE TDS CERTIFICATE CERTIFICATE CERTIFICATE CERTIFICATES SS S. .. . 5. THE IMPUGNED ORDER OF THE TRIBUNAL IS ACCORDINGL Y MODIFIED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF JANUARY 2014 SD/- SD/- (SANJAY ARORA) ACCOUNTANT MEMBER (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI: DATED: 24 TH JANUARY 2014 SUBODH. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI