Asst. Commissioner of Income Tax, Circle-1, Warangal V. M/s. Vijaya Sree Constructions, Warangal

MA 39/Hyd/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5866 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 06-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V SUBBARAJU
• Assessee Lawyers: S RAMA RAO
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A. NO. 39/HYD/2017 (IN ITA NO. 1175/HYD/2011 ASSESSMENT YEAR: 2007-08) ACIT, CIRCLE-1, WARANGAL. VS. M/S VIJAYA SREE CONSTRUCTIONS, WARANGAL. PAN AABFV 3579J (APPLICANT) (RESPONDENT) REVENUE BY : SHRI B.V SUBBARAJU ASSESSEE BY : SHRI S. RAMA RAO DATE OF HEARING : 10-11-2017 DATE OF PRONOUNCEMENT : 22-11-2017 ORDER PER P. MADHAVI DEVI, J.M.: THIS APPLICATION IS FILED BY THE REVENUE SEEKING RECALL OF THE ORDER OF THE TRIBUNAL DATED 31-03-2017 IN ITA NO. 1175/HYD/2011. 2. IT IS STATED BY THE LD. DR THAT THE REVENUES APPEAL WAS DISMISSED BY THE TRIBUNAL BY FOLLOWING DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL AT VISAKHAPATNAM IN THE CASE OF M/S MERLYN SHIPPING & TRANSPORT IN ITA NO. 477/VIZ/2008 AND TRANSPORT AND ALSO THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS VECTOR SHIPPING SERVICES LIMITED M.A NO.39/HYD/2017 M/S VIJAYA SREE CONSTRUCTIONS, WARANGAL. PAGE 2 OF 3 REPORTED IN 357 ITR 647. IT IS SUBMITTED THAT THE HONBLE SUPREME COURT IN THE CASE OF M/S PALAM GAS SERVICES VS. CIT IN CIVIL APPEAL NO. 5512 OF 2017 DATED 03-05-2017 HAS SETTLED THIS ISSUE IN FAVOUR OF THE REVENUE AND HAS HELD THAT EVEN IF THE AMOUNT IS FULLY PAID WITHIN THE RELEVANT FINANCIAL YEAR, IF NO TDS WAS MADE, THE PROVISIONS OF SEC 40(A)(IA) OF THE IT ACT ARE APPLICABLE WARRANTING DISALLOWANCE. HE THEREFORE PRAYED THAT THE ORDER OF THE TRIBUNAL MAY BE RECALLED. 3. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND, SUBMITTED THAT THE REVENUES APPEAL WAS DISMISSED BY THE TRIBUNAL NOT ONLY ON BASIS OF THE ABOVE DECISION BUT ALSO ON THE GROUND OF TAX EFFECT BEING LESS THAN 10 LAKHS ALSO. 4. HAVING REGARD TO THE RIVAL CONTENTIONS, WE FIND THAT ORDER OF THE TRIBUNAL HAS TO BE RECALLED AS BOTH THE GROUNDS ARE COVERED BY THE LATEST JUDGMENTS OF THE HONBLE SUPREM COURT. THE HONBLE SUPREME COURT, IN THE CASE OF M/S PALAM GAS SERVICES VS CITHAS HELD THAT THE DISALLOWANCE U/S 40(A)(IA) OF THE IT ACT IS CALLED FOR EVEN IF THE AMOUNT IS FULLY PAID WITHIN THE RELEVANT FINANCIAL YEAR. FURTHER IN THE CASE OF CIT VS GEMINI DISTILLERIES, THE HONBLE SUPREME COURT VIDE JUDGMENT DATED 12-10-2017 HAS HELD THAT THE CBDT FIXING THE TAX LIMIT FOR FILING OF APPEALS BY THE REVENUE IS APPLICABLE ONLY TO THOSE M.A NO.39/HYD/2017 M/S VIJAYA SREE CONSTRUCTIONS, WARANGAL. PAGE 3 OF 3 APPEALS WHICH HAVE BEEN FILED AFTER THE CIRCULAR HAS BEEN ISSUED AND NOT TO THE APPEALS FILED PRIOR TO THE SAID DATE. 5. IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO RECALL THE ORDER OF THE TRIBUNAL DATED 31-03-2017 IN ITA NO. 1175/HYD/2017 AND RE-FIX THE APPEAL FOR HEARING ON 06-03- 2018. AS THE DATE OF HEARING OF THE APPEAL HAS BEEN ANNOUNCED IN THE OPEN COURT, NO FURTHER NOTICE IS REQUIRED TO BE ISSUED TO THE PARTIES. 6. IN THE RESULT, THE MA IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND NOVEMBER, 2017 . SD/- SD/- (B.RAMAKOTAIAH) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 22 ND NOVEMBER, 2017. KRK COPY TO:- 1) ACIT, CIRCLE-1, WARANGAL. 2. M/S VIJAYA SREE CONSTRUCTIONS, H. NO. 5-9-118, HANAMKONDS, WARANGAL 3) CIT(A)-VI, HYDERABAD 4) CIT-VI, HYDERABAD 5)THE DEPARTMENT REPRESENTATIVE, I.T.A.T., HYD. 6) GUARD FILE.