P.Manickavasagam , Tuticorin V. ITO Ward 3 , Tuticorin

MA 403/CHNY/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3905 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , !' .#$#%, ' '( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER )) / M.P. NO.403/CHNY/2017 (IN C.O. NO.134/MDS/2017 IN I.T.A. NO.1738/MDS/2017 ) % *% / ASSESSMENT YEAR : 2014-15 SHRI P. MANICKAVASAGAN, NO.11-33-P/1-A, STATE BANK COLONY, POLEPETTAI, TUTICORIN 628 002. PAN : ACPPM 5907 P V. THE INCOME TAX OFFICER, WARD 3, TUTICORIN. (,-% /PETITIONER) (,.-// RESPONDENT) ,-% 1 2 /PETITIONER BY : SH. N. DEVANATHAN, ADVOCATE ,.-/ 1 2 / RESPONDENT BY : SHRI B. SAGADEVAN, JCIT 3 1 4' / DATE OF HEARING : 28.09.2018 56* 1 4' / DATE OF PRONOUNCEMENT : 28.09.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER O F THIS TRIBUNAL DATED 16.10.2017. 2. SH. N. DEVANATHAN, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE ASSESSEE ALSO FILED CROSS-OBJECT ION IN C.O. 2 M.P. NO.403/CHNY/17 NO.134/MDS/2017. THIS TRIBUNAL DISMISSED THE CROSS -OBJECTION ON THE GROUND THAT THE CROSS-OBJECTION IS ONLY TO SUPP ORT THE ORDER OF THE CIT(APPEALS), THEREFORE, THE IT BECOMES INFRUCT UOUS. 3. REFERRING TO THE CROSS-OBJECTION FILED BEFORE TH IS TRIBUNAL, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CROS S-OBJECTION IS NOT TO SUPPORT THE ORDER OF THE CIT(APPEALS). INDE PENDENT GROUNDS WERE RAISED IN THE CROSS-OBJECTION WHICH WERE NOT D ISPOSED OF. ACCORDING TO THE LD. COUNSEL, NON-DISPOSAL OF THE G ROUNDS RAISED IN THE CROSS-OBJECTION IS AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), T HEREFORE, IT HAS TO BE DISPOSED OF. THE LD.COUNSEL SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. 4. WE HEARD SHRI B. SAGADEVAN, THE LD. DEPARTMENTAL REPRESENTATIVE ALSO. ADMITTEDLY, THE ASSESSEE RAIS ED INDEPENDENT GROUNDS IN THE CROSS-OBJECTION. THE GROUNDS RAISED IN THE CROSS- OBJECTION READS AS FOLLOWS:- 01. THE LEARNED ASSESSING OFFICER OUGHT NOT HAVE FILED THE APPEAL HAVING REGARD TO THE FACT THAT (A) NO TDS ON REIMBURSEMENT OF EXPENSES (B) AGAINST NATIONAL LITIGATION POLICY WHICH PR OHIBITS FILING OF APPEAL FOR THE SAKE OF FILING APPEAL. (C) THE LEARNED CIT HAD MECHANICALLY APPROVED THE F ILING OF APPEAL WITHOUT EXERCISING JUDICIAL DISCRETION 3 M.P. NO.403/CHNY/17 JUDICIALLY AND JUDICIOUSLY (VARDARAJA TEXTILES 9 ITR MADRAS WHICH DECISION WAS ACCEPTED BY THE REVENUE. 02. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO LA W, FACTS AND CIRCUMSTANCES OF THE CASE IN SO FAR AS IT RELAT ES TO NON DEDUCTION OF TDS IN RESPECT OF CERTAIN PARTIES OTHE R THAN REIMBURSEMENT EXPENSES 03. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THE AMENDMENT MADE IN SECTION 40(A)(IA) WHICH PERMITS NON DEDUCTION OF TAX IN CASE WHERE THE RECIPIENT HAD INC LUDED THE INCOME AND THE TAX WAS PAID. 04. THE LEARNED ASSESSING OFFICER OUGHT TO HAVE APPRE CIATED THAT THE APPELLANT HAD MAINTAINED PUCCA DETAILS WHI CH WERE EXHIBITED SEPARATELY AND THE SAME IS EVIDENCED BY TH E BILLS ISSUED BY THE AGENT GIVING FULL PARTICULARS OF HEAD WISE EXPENSES WHICH WERE EXAMINED BY HIM AND HENCE THE ORD ER OF THE LEARNED CIT(A) IS CORRECT IN LAW AND ALSO CE MENTED BY JUDICIAL DECISIONS RELIED UPON HIM. 05. THE APPELLANT CRAVES TO FILE ADDITIONAL GROUNDS . 5. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE A SSESSEE, THE GROUNDS TAKEN BY THE ASSESSEE ARE NOT TO SUPPORT TH E ORDER OF THE CIT(APPEALS). IN OTHER WORDS, THE INDEPENDENT GROU NDS RAISED BY THE ASSESSEE HAVE TO BE DISPOSED OF ON MERIT. INAD VERTENTLY, THESE INDEPENDENT GROUNDS WERE NOT DISPOSED OF BY THIS TR IBUNAL AND THE CROSS-OBJECTION WAS DISMISSED ON THE GROUND THAT TH E CROSS- OBJECTION IS ONLY TO SUPPORT THE ORDER OF THE CIT(A PPEALS). TO THAT EXTENT, THERE IS AN ERROR IN THE ORDER OF THIS TRIB UNAL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE GROUNDS RAISED H AVE TO BE CONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF 4 M.P. NO.403/CHNY/17 BOTH THE AUTHORITIES BELOW WITH REGARD TO THE ISSUE RAISED IN THE CROSS-OBJECTION, ARE SET ASIDE AND THE MATTER IS RE MITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFIC ER SHALL RE- EXAMINE THE ISSUE RAISED BY THE ASSESSEE IN THE CRO SS-OBJECTION FILED BEFORE THIS TRIBUNAL AND THEREAFTER DECIDE TH E ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPO RTUNITY TO THE ASSESSEE. 6. WITH THE ABOVE OBSERVATION, THE MISCELLANEOUS PE TITION FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON 28TH SEPTEMBER, 2018 AT CHENNAI. SD/- SD/- ( !' .#$#% ) ( ... ) (ABRAHAM P. GEORGE) (N.R.S. GANE SAN) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 8 /DATED, THE 28 TH SEPTEMBER, 2018. KRI. 5 M.P. NO.403/CHNY/17 1 ,49) :)*4 /COPY TO: 1. ,-% / PETITIONER 2. ,.-/ /RESPONDENT 3. 3 ;4 () /CIT(A) 4. 3 ;4 /CIT 5. )< ,4 /DR 6. =% > /GF.