ANILKUMAR B.SARAF, V. ITO 25(1)(3),

MA 414/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9522 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMERDEEP
• Section: 194C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI I.P.BANSALJUDICIAL MEMBER & SHRI RAJENDRA SINGH , ACCOUNTANT MEMBER M.A.NO..414/MUM/2012 (ARISING OUT OF ITA NO.4285/MUM/2010,A.Y.2005-06) SHRI ANILKUMAR B. SARAF, 235, BLUE ROSE INDUSTRIAL ESTATE, NEW CABLE CORPORATION, WESTERN EXPRESS HIGHWAY, BORIVALI (EAST) MUMBAI - 400 066 PAN:AHEPS 6433N (APPLICANT) VS. INCOME TAX OFFICER 25(1)(3) C-11, 2 ND FLOOR, PRATYAKSHKAR BHAVAN, BKC, BANDRA (E), MUMBAI - 400 051. (RESPONDENT) APPLICANT BY : SHRI K.GOPAL RESPONDENT BY : SHRI AMERDEEP DATE OF HEARING : 19/10/2012 DATE OF PRONOUNCEMENT : 1 9/10/2012 ORDER PER I.P.BANSAL, J.M VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE TH E ASSESSEE HAS CONTENDED THAT TRIBUNAL HAS COMMITTED A MISTAKE IN DESCRIBING THE IMPUGNED ORDER AS PASSED BY LD. CIT(A) AGAINST THE FACT THAT THE ORDER CHALLENGED BY ASSESSEE WAS PASSED BY LD. CIT UNDER THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE TRIBUNAL IN THE AFOREMENTIONED APPEAL HAD C ONSIDERED THE ORDER PASSED BY LD. CIT, CITY-15, MUMBAI DATED 30/3/2010 AND THE SAID ORDER WAS SET ASIDE BY THE TRIBUNAL VIDE ITS ORDER DATED 13/1/2012. WHILE MENTIONING THE AUTHORITY THE TRIBUNAL INADVERTENTLY HAS MENTIONED IN PARA-4 & 6 THE AUTHORITY AS CIT(A), WHEREAS IN PLACE OF C IT(A) THE AUTHORITY SHOULD BE MENTIONED AS CIT. M.A.NO..414/MUM/2012 2 3. IN VIEW OF THE ABOVE DISCUSSION, AFTER HEARING L D. COUNSEL FOR THE ASSESSEE WE REPLACE PARA-4 & 6 OF THE ORDER AS UNDE R: EXISTING PARA-4: 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER PASSED BY THE CI T (A) AND SUBMITTED THAT THE VIEW TAKEN BY THE ASSESSING OFFI CER IS NOT A POSSIBLE VIEW AND WHATEVER THE AMOUNTS CREDITED TO THE P & L ACCOUNT HAS TO BE DEPOSITED IN TIME. RECTIFIED PARA -4: 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER PASSED BY THE CI T AND SUBMITTED THAT THE VIEW TAKEN BY THE ASSESSING OFFI CER IS NOT A POSSIBLE VIEW AND WHATEVER THE AMOUNTS CREDITED TO THE P & L ACCOUNT HAS TO BE DEPOSITED IN TIME. EXISTING PARA 6: 6. WE FIND FROM THE PAPER BOOK FILED BY THE ASSESS EE PAGE 1 THAT THE ASSESSING OFFICER HAS ASKED SPECIFICALLY W ITH REGARD TO DEDUCTION OF TDS U/S 40(A)(IA). AFTER HIS EXPLANAT ION DATED 23.8.2007 ALLOWED THE CLAIM OF THE ASSESSEE. IN SO FAR AS APPLICATION OF SEC. 194C IS CONCERNED, WE HAVE GONE THROUGH THE SEC. 194C SUB-CLAUSE (1) WAS SUBSTITUTED BY FIN ANCE ACT 2007 W.E.F., 1.6.2007 AND INDIVIDUAL WAS BROUGHT UN DER 194C (1). PRIOR TO THIS DATE, THERE WAS NO LIABILITY ON THE INDIVIDUAL TO DEDUCT THE TDS ON MAKING THE PAYMENT TO THE CONT RACTOR. WE FIND THAT THE ASSESSING OFFICER HAS PASSED THE O RDER AFTER EXAMINING THE ISSUE AS PER LAW. IN OUR OPINION, TH E ORDER PASSED BY THE ASSESSING OFFICER IS NOT ERRONEOUS AN D PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREF ORE, THE ORDER M.A.NO..414/MUM/2012 3 PASSED BY THE CIT (A) IS SET ASIDE AND THE APPEAL F ILED BY THE ASSESSEE IS ALLOWED. RECTIFIED PARA:6 6. WE FIND FROM THE PAPER BOOK FILED BY THE ASSESSE E PAGE 1 THAT THE ASSESSING OFFICER HAS ASKED SPECIFICALLY W ITH REGARD TO DEDUCTION OF TDS U/S 40(A)(IA). AFTER HIS EXPLANAT ION DATED 23.8.2007 ALLOWED THE CLAIM OF THE ASSESSEE. IN SO FAR AS APPLICATION OF SEC. 194C IS CONCERNED, WE HAVE GONE THROUGH THE SEC. 194C SUB-CLAUSE (1) WAS SUBSTITUTED BY FIN ANCE ACT 2007 W.E.F., 1.6.2007 AND INDIVIDUAL WAS BROUGHT UN DER 194C (1). PRIOR TO THIS DATE, THERE WAS NO LIABILITY ON THE INDIVIDUAL TO DEDUCT THE TDS ON MAKING THE PAYMENT TO THE CONT RACTOR. WE FIND THAT THE ASSESSING OFFICER HAS PASSED THE O RDER AFTER EXAMINING THE ISSUE AS PER LAW. IN OUR OPINION, TH E ORDER PASSED BY THE ASSESSING OFFICER IS NOT ERRONEOUS AN D PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREF ORE, THE ORDER PASSED BY THE CIT IS SET ASIDE AND THE APPEAL FIL ED BY THE ASSESSEE IS ALLOWED. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THE 19 TH DAY OF OCT. 2012 SD/- SD/- ( RAJENDRA SINGH ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 19 TH OCT. 2012. M.A.NO..414/MUM/2012 4 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RK BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM. ` M.A.NO..414/MUM/2012 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 19/10/2012 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 19/10/2012 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER