IRON MOUNTAIN INDIA P.LTD, V. DCIT 1(2),

MA 376/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1449 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 14-10-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SONIYA KUMAR
• Assessee Lawyers: JIGAR SAIYA

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,MUMBAI - I BENCH. . . , , BEFORE S/SH. B.R.MITTAL,JUDICIAL MEMB ER & RAJENDRA,ACCOUNTANT MEMBER MA NO.376/MUM/2013 (ARISING OUT OF ITA NO. 5805/MUM/2012) ASSESSMENT YEAR 2008-09 IRON MOUNTAIN INDIA PVT. LTD. 6, JAMES COURT, 206, MARINE DRIVE, MUMBAI-400020 PAN: AABCM3593M VS. DCIT 1(2) AAYAKAR BHAVAN, R.NO.579, 5 TH FLOOR, M.K.MARG, MUMBAI-400020 ( / APPELLANT ) ( / RESPONDENT ) APPELLANT BY : SHRI JIGAR SAIYA RESPONDENT BY : SHRI SONIYA KUMAR !' # $% / DATE OF HEARING : 10-01-2014 &'() # $% / DATE OF PRONOUNCEMENT : 10-01-2014 * / O R D E R PER RAJENDRA, A.M. VIDE ITS APPLICATION, DATED 14.10.2013, ASSESSEE-CO MPANY HAS SUBMITTED THAT THERE WERE FACTUAL MISTAKES IN THE ORDER PASSED BY THE TRIBUNAL ON 03. 07.2013 WITH REGARD TO NATURE OF BUSINESS, DATE OF FILING OF RETURN,RETURNED INCOME AND AMOUNT OF DISALLOWANCE MADE FOR NON-DEDUCTION OF TDS. IT WAS FURTHER SUBMITTED THAT ISSUE OF NON-DED UCTION OF TAX AT SOURCE WAS DECIDED BY SEVERAL CO-ORDINATE BENCHES IN FAVOUR OF THE ASSESS EE, THAT BENCH SHOULD HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE, THAT MATTER SHOULD NOT H AVE BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER (AO). THE APPLICATION WAS ACCOMPA NIED BY AN AFFIDAVIT OF THE MANAGING DIRECTOR OF THE ASSESSEE-COMPANY DATED 07.10.2013 T HAT WAS FILED. 2 .BEFORE US,AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT CORRECTIONS WERE TO BE MADE TO VARIOUS FIGURES AS MENTIONED AT PARA-1 OF THE APPLI CATION, THAT TRIBUNAL SHOULD HAVE DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE OR AGAINST THE ASS ESSEE (DR) SUBMITTED THAT IN THE GARB OF M.A. ASSESSEE WANTED TO REVIEW THE ORDER, THAT SECTION 2 54(2) WAS INTRODUCED TO RECTIFY MISTAKES THAT WERE APPARENT FROM THE RECORD.WE FIND THAT THERE AR E MISTAKES IN THE INITIAL PORTION OF THE ORDER, THEREFORE SAME SHOULD BE READ AS UNDER: ASSESSEE-COMPANY ENGAGED IN THE BUSINESS OF RECORD STORAGE AND MANAGEMENT FILED ITS RETURN OF INCOME ON 27.09.2008 DECLARING TOTAL INCO ME OF RS.25.18 LAKHS. WE FURTHER FIND THAT THERE ARE MISTAKES IN LAST TWO LINES OF THE FIRST PAGE AND FIRST PARAGRAPH OF THE SECOND PAGE OF THE ORDER.LAST TWO LINES OF THE FIRST PAGE AND THE FIRST PARAGRAPH OF THE SECOND PAGE SHOULD BE READ AS UNDER: MA NO. 376 /MUM/2013 IRON MOUNTAIN INDIA PVT. LTD. 2 FIRST GROUND OF APPEAL PERTAINS TO VIOLATION OF TD S OBLIGATION U/S.194 OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE HAD MADE PAYMENT OF RS.2.42 CRORES TO DATA LINK CONSULTANCY.HE DIRECTED THE ASSESSEE TO EXPLAIN THE DETAILS OF TDS PAID AND COPIES OF CERTAIN DOCUMENTS.AFTER C ONSIDERING THE REPLY OF THE ASSESSEE AND THE AGREEMENT ENTERED BY IT WITH THE DATA LINK CONSULTANCY,HE HELD THAT THE AGREEMENT BETWEEN THE ASSESSEE AND DATA LINK CONSUL TANCY WAS FOR RENDERING PROFESSIONAL SERVICES,THAT TDS SHOULD HAVE BEEN DED UCTED @10%,THAT U/S.194J OF THE ACT,THAT THE ASSESSEE HAD DEDUCTED SHORT TDS UNDER A WRONG PROVISION PROVISION,THAT SHORTFALL IN DEDUCTION OF TDS WAS OF RS.18.21 LAKHS . AS A RESULT HE HELD THAT CORRESPONDING PAYMENT OF RS.1.82 CRORES WAS MADE BY THE ASSESSEE TO DATA LINK CONSULTANCY WAS TO BE DISALLOWED U/S.40(IA) R.W.S.1 94J OF THE ACT. AS FAR AS DECISION TO REMAND BACK THE MATTER TO THE FILE OF THE AO IS CONCERNED IN OUR OPINION IT CANNOT BE TERMED A MISTAKE APPARENT FROM THE RECORD .WE FIND THAT WHILE DECIDING THE ISSUE OF DEDUCTION OF TDS AND APPLICABILITY OF THE PROVISION S OF SECTION. 40(A)(IA) OF THE ACT, TRIBUNAL HAD HELD THAT PROVISIONS OF SECTION 194J WERE APPLI CABLE.IT WAS ALSO HELD THAT WORK DONE BY THE OPERATORS IN PURSUANCE OF AN AGREEMENT WAS TO BE TR EATED AS TECHNICAL SERVICES.THUS, A FINAL DECISION HAD BEEN TAKEN BY THE TRIBUNAL WITH REGARD TO THE WORK DONE BY THE OPERATORS. WHILE DECIDING THE ISSUE AO DID NOT HAVE BENEFIT OR DID N OT CONSIDER THE CASES OF APPOLO TYRES (ITA 19. 3/ KOCH/ 2010) LTD./CHANDA BHOY AND JASO BHOY (14 SOT 448). IN TH ESE CIRCUMSTANCES A DECISION WAS TAKEN TO RESTORE BACK THE MATTER TO TH E FILE OF THE ASSESSEE.IN OUR OPINION SAID DECISION IS NOT A MISTAKE APPARENT FROM THE RECORD AND CANNOT BE RECTIFIED U/S. 254(2) OF THE ACT. AS A RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. +) $, +) $, +) $, +) $, !-+$ !-+$ !-+$ !-+$ . . . . / / / / # ## # 0' 0'0' 0' * 1 * 1 * 1 * 1 2$ 2$ 2$ 2$ # ## # $ $ $ $ 34 3434 34 S SS S . ORDER PRONOUNCED IN THE OP EN COURT ON 10 TH JANUARY, 2014. * # &'() 5 6! 10 TUOJH TUOJH TUOJH TUOJH ,201 4 ' # 0' 7 SD/- SD/- ( . . / B.R. MITTAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' / MUMBAI, 6! /DATE: 10.01.2014 SK * * * * # ## # $ 8 $ 8 $ 8 $ 8 98($ 98($ 98($ 98($ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ : ; , 4. THE CONCERNED CIT / : ; 5. DR I BENCH, ITAT, MUMBAI / 8<0 $!- => , . . . ' 6. GUARD FILE/ 0= ?' 8$ $ //TRUE COPY// *! / BY ORDER, @ / 3 DY./ASST. REGISTRAR -) , ' /ITAT, MUMBAI