M/s Shreeraj Metalloys (P) Ltd, Kolkata V. I.T.O Wd - 3(2),kolkata, Kolkata

MA 43/KOL/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0593 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-07-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2013
• Court: TRIBUNAL
• Department Lawyers: D K RAKSHIT JCITSR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [ () . .. . . .. . , ,, , , !' #! $'# #! $'# #! $'# #! $'# ] ]] ] [BEFORE HONBLE SRI K.K.GUPTA, AM & HONBLE MAHAV IR SINGH, JM] M.A..NO.43/KOL/2013 '& '& '& '& /A/O ITA NO.1645/KOL/2012 $'( !)*/ ASSESSMENT YEAR : 2008-09 (,- / APPELLANT ) - !' - ( /0,- /RESPONDENT) M/S.SHREERAJ METALLOYS PVT.LTD.. I.T.O., WARD-3( 2), KOLKATA -VERSUS- KOLKATA (PAN: AAECS 5538 C ) ,- 1 2 / FOR THE APPELLANT: SHRI A.K.TIBREWAL, FCA /0,- 1 2 / FOR THE RESPONDENT: SHRI D.K.RAKSHIT, JCIT,SR.DR '!3 1 4 /DATE OF HEARING : 19.07.2013 5) 1 4 /DATE OF PRONOUNCEMENT : 19.07.2013 6 / ORDER PER SHRI K.K.GUPTA, AM THIS PETITION BY THE ASSESSEE DRAWS THE ATTENTION T O THE MISTAKE APPARENT FROM RECORDS BY POINTING OUT THAT THAT THE HONBLE TRIBUNAL INADVERTENTLY DID NOT AD JUDICATE AND PASS SPECIFIC ORDER IN RESPECT OF THE ORDER OF LD.CIT(A) CONTAINED IN PARA 13 OF HIS ORDER DATED 01 ST AUGUST, 2012 WHEREIN THE LD.CIT(A), AFTER RELYING ON THE DE CISION OF THE JURISDICTIONAL KOLKATA TRIBUNAL IN THE CASE OF SATYENDRA JHUNJHUNWALA VS I TO IN ITA NO.1988/KOL/2009, HELD THAT THE DISALLOWANCE OF RS.14,24,621 UNDER SECTION 40(A)(IA) OF THE ACT CANNOT BE MADE, AS THE SAID SUM WAS REIMBURSEMENT OF EXPENSES INCUR RED BY M/S. J.C. BOSE & SONS AND THEREFORE THE ASSESSEE WAS NOT LIABLE TO DEDUCT TDS . DURING THE COURSE OF HEARING BEFORE THE HONBLE TRIBUNAL, THE ASSESSEES COUNSEL REFERRED TO PAGE NOS.61 TO 230 OF THE PAPER BOOK AND SUBMITTED THAT THE ASSESSEE HAD DEDUCTED TAX AT SOURCE OF RS.3,172 ON SERVICE CHARGES OF RS.1,57,306 CONSISTING OF SER VICE CHARGES OF RS.1,40,000 AND SERVICE TAX OF RS.17,306 (INCLUDED IN THE AGGREGATE SUM OF RS.14,24,621) PAID TO J.C.BOSE & SONS. IT WAS, INTER ALIA, SUBMITTED BY T HE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT NO TAX WAS DEDUCTED AT SOURCE ON REIM BURSEMENT OF EXPENSES OF RS.12,67,315 SINCE THERE WAS NO RESPONSIBILITY OF T HE ASSESSEE TO DEDUCT TAX ON THE AMOUNT AS WAS HELD BY THE JURISDICTIONAL TRIBUNAL I N THE CASE OF SATYENDRA JHUNJHUNWALA VS. ITO IN ITA NO.1988/KOL/2009. THE L D. CIT(A) AGREED WITH THE AFORESAID SUBMISSIONS AS WOULD BE FOUND FROM PARA 1 3 OF THE ORDER PASSED BY LD.CIT(A). M.A..NO.43/KOL/2013 A/O ITA NO.1645/KOL/20 12 M/S.SHRE ERAJ METALLOYS PVT. LTD. VS I.T.O., WARD-3(2),KOLKA TA A.YR.2008-09 2 ON THE FACTS AND IN THE CIRCUMSTANCES STATED HEREIN ABOVE, IT IS RESPECTFULLY SUBMITTED THAT THERE ARE MISTAKES APPARENT FROM RECORDS WITHI N THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961, IN THE SAID ORDER DATED 1 9 TH APRIL, 2013 PASSED BY THE HONBLE TRIBUNAL, IN THE INSTANT CASE, OF THE ASSES SEE COMPANY HEREIN. THE PETITIONER HEREIN, THEREFORE, PRAYS YOURS HONOU RS TO KINDLY (A) RECALL THE ORDER PASSED BY LEARNED TRIBUNAL IN ITA NO.1645/KOL/2012, AND PASS FRESH ORDER, AFTER ALLOWING PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE COMPANY HEREIN AND AFTER CONSIDERING THE AFORESAID FACTS ALREADY O N RECORD OF THE TAX AUTHORITIES; AND/OR (B) PASS SUCH FURTHER ORDER (S), AS YOUR HONOURS MA Y DEEM FIT AND PROPER, IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. 2. THE LD. DR SUPPORTED THE ORDER OF THE TRIBUNAL B Y SUBMITTING THAT THE PETITIONER SEEMS TO GET A REVIEW OF THE ORDER OF THE TRIBUNAL IN SO FAR AS IT WAS CLARIFIED THAT THE LD. CIT(A) AFTER HAVING VERIFYING ALL THE FACTS REL IED ON THE DECISION OF THE SPECIAL BENCH IN THE CASE OF MERILYN SHIPPING & TRANSPORT I N ITA NO.477/VIZAG/2008 WHICH WAS REFERRED TO BEFORE THE TRIBUNAL. THEREFORE IN V IEW OF THE TRIBUNAL BEING AWARE OF THE JURISDICTIONAL HIGH COURT HAVING SET ASIDE THE SAID ORDER, THE SAME WAS NOT TO BE RELIED UPON AND THEREFORE WAS PLEASED TO RESTORE TH E ISSUE TO THE FILE OF THE AO ON THE REVENUES APPEAL IN SO FAR AS THE FACTS WITH RESPEC T TO DEDUCTION AT SOURCE HAD BEEN ALREADY CONSIDERED BY THE AO THEREFORE HAD NOT DEMO LISHED THE SAID ORDER BEFORE THE LD. CIT(A) IN THE LIGHT OF FOLLOWING THE SPECIAL BE NCH DECISION. THEREFORE THERE IS NO MISTAKE APPARENT FROM RECORD AS SOUGHT TO BE RECTIF IED BY THE ASSESSEE PETITIONER WHO RELIED ON THE DECISION WITH RESPECT TO RE-ASSESSMEN T PROCEEDINGS U/S 147/148 OF THE ACT WHETHER COULD BE RECONSIDERED ON THE MERITS WAS ALREADY DISMISSED BY THE TRIBUNAL IN VIEW OF THE CROSS OBJECTION HAVING BEEN DISMISSED BY THE TRIBUNAL IN THE IMPUGNED ORDER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE ARE INCLINED TO FIND THE CONTENTION OF T HE LD. DR APPROPRIATE IN VIEW OF THE FACT THAT THE TRIBUNAL WAS PLEASED TO RESTORE THE I SSUE TO THE FILE OF THE AO FOR RECONSIDERATION AND TO GIVE EFFECT AS PER THE DIREC TION OF THE HONBLE JURISDICTIONAL HIGH COURT THAT HAD ESTABLISHED THAT THE DECISION I N THE CASE OF THE MERILYN SHIPPING AND TRANSPORTS REFERRED TO SUPRA WAS NOT TO BE APPL IED ON THE FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE AS WERE BEFORE THE AO. THE A O THEREFORE WAS TO RECONSIDER THE ISSUE WITH RESPECT TO THE DISALLOWANCE U/S 40(A)(IA ) OF THE IT ACT DENOVO AFTER M.A..NO.43/KOL/2013 A/O ITA NO.1645/KOL/20 12 M/S.SHRE ERAJ METALLOYS PVT. LTD. VS I.T.O., WARD-3(2),KOLKA TA A.YR.2008-09 3 AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE IN THE LIGHT OF THE FACTS BROUGHT ON RECORD BY THE AO AS WELL AS THE BY THE LD.CIT(A) . THESE FACTS HAVE BEEN CONSIDERED BY THE TRIBUNAL THEREFORE REQUIRE NO FURTHER DELIBE RATION AND ARE APPREHENSION ONLY WHICH THE ASSESSEE PETITIONER REQUIRES TO BE RECTIF IED BY WAY OF A REVIEW UNDER THE PROVISION OF SECTION 254(2) OF THE ACT, WHICH IS NO T PERMISSIBLE. 4. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.07.2013. SD/- SD/- [ #! $'#, $ ] [ . .. . . .. . , , , , ] [MAHAVIR SINGH] [ K.K.GUPTA ] JUDICIAL MEMBER AC COUNTANT MEMBER ( (( (4 4 4 4) )) ) DATE: 19.07.2013. R.G.(.P.S.) 6 1 /$$7 87)9- COPY OF THE ORDER FORWARDED TO: 1. .M/S.SHREERAJ METALLOYS PVT.LTD., 48-D, MUKTARAM BA BU STREET, KOLKATA-700007. 2 I.T.O., WARD-3(2), KOLKATA 3 . CIT-(TDS), KOLKATA 4. CIT(A)- I, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA 07 /$/ TRUE COPY, 6'/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES