ITO, Ward-14(2), Hyderabad V. M/s. Bharath Exporters, Hyderabad

MA 44/Hyd/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5872 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 03-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R RAMAKRISHNA
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 44/HYD/2017 (IN ITA NO. 1969/HYD/2011 ASSESSMENT YEAR: 2008-09) INCOME-TAX OFFICER, WARD 14(2), HYDERABAD. VS. M/S BHARAT EXPORTERS, HYDERABAD. PAN AADFB2948R (APPLICANT) (RESPONDENT) REVENUE BY : SHRI R. RAMAKRISHNA ASSESSEE BY : SHRI P. MURALI MOHAN RAO DATE OF HEARING : 06-10-2017 DATE OF PRONOUNCEMENT : 17-10-2017 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARISES OUT OF THE ORDER OF ITAT A BENCH, HYDERABAD BENCHES, HYDERAB AD, IN ITA NO. 1969/HYD/2011 DATED 31/03/2017 WHEREIN THE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE. 2. IN THE M.A. THE REVENUE HAS STATED AS FOLLOWS: APPEAL FILED BY MIS. BHARAT EXPORTERS FOR THE ASST. YEAR 2008 - 09 WAS ALLOWED BY THE HON'BLE ITAT, BENCH-A, HYDERABAD IN ITA NO. 1969/HYD/2011 ON 31.03.2017, HOLDING THAT THE PROVI SIONS OF SECTION 40(A)(IA) ARE NOT APPLICABLE FOR THE AMOUNTS PAID D URING THE FINANCIAL YEAR. TO ARRIVE AT THIS DECISION, THE HON'BLE BENCH RELIED ON THE DECISIONS OF THE CO-ORDINATE BENCH IN THE CASE OF M IS. AGA PUBLICATIONS LIMITED, THE SPECIAL BENCH DECISION IN THE CASE OF MIS. MERILYN SHIPPING AND TRANSPORT AND HON'BLE ALLAHABA D HIGH COURT'S DECISION IN THE CASE OF MIS. VECTOR SHIPPING SERVIC ES (P) LIMITED. 02. IN THIS CONTEXT, ATTENTION OF THE HON'BLE BENCH IS INVITED TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F M/S. PALAM GAS SERVICE, REPORTED IN 81 TAXMANN 43, WHEREIN IT WAS HELD THAT 'WHEN THE ENTIRE SCHEME OF OBLIGATION TO DEDUCT THE TAX AT SOURCE AND PAYING IT OVER TO THE GOVERNMENT IS READ HOLISTICAL LY, IT CANNOT BE HELD THAT THE WORD 'PAYABLE' OCCURRING IN SECTION 4 0(A)(IA) OF THE IT 2 M.A. NO. 44/HYD/2017 M/S BHARAT EXPORTERS ACT REFERS TO THOSE CASES ONLY WHERE THE AMOUNT IS YET TO BE PAID AND DOES NOT COVER THE CASES WHERE THE AMOUNT IS AC TUALLY PAID'. ACCORDINGLY, SEC. 40(A)(IA) OF THE IT ACT COVERS NO T ONLY THOSE CASES WHERE THE AMOUNT IS 'PAYABLE' BUT ALSO WHEN IT IS ' PAID' AND TAX HAS NOT BEEN DEDUCTED ON THE SAME. THE HON'BLE SUPREME COURT IN THE ABOVE DECISION HAS OPINED THAT THE ALLAHABAD HIGH C OURT IN THE CASE OF MIS VECTOR SHIPPING SERVICES (P) LTD DID NOT DEC IDE THE QUESTION OF LAW CORRECTLY AND ACCORDINGLY HAS OVERRULED THE JUD GMENTS OF ALLAHABAD HIGH COURT IN THE CASE OF MIS VECTOR SHIP PING SERVICES (P) LTD. 4. IN THIS CONTEXT, ATTENTION OF THE HON'BLE BENCH IS INVITED TO THE BOARD'S INSTRUCTION NO. 1466, WHEREIN IT IS CLARIFI ED THAT 'A MISTAKE ARISING AS A RESULT OF SUBSEQUENT INTERPRETATION OF LAW BY THE SUPREME COURT WOULD CONSTITUTE A MISTAKE APPARENT F ROM THE RECORDS'. 05. IN THE LIGHT OF THE DECISION OF THE HON'BLE SUP REME COURT AND THE BOARD'S INSTRUCTION, IT IS REQUESTED THAT THE ORDER DT. 31.03.2017 MAY KINDLY BE RE-CONSIDERED AND NECESSARY MODIFICATION ORDERS MAY BE ISSUED. 3. REFERRING TO THE ABOVE FACTUAL BACKGROUND, LD. D R SUBMITTED THAT IN THE LIGHT OF THE DECISION OF THE HONBLE SUPREME CO URT AND THE BOARDS INSTRUCTION, THE ORDER DATED 31/03/2017 MAY BE RECO NSIDERED AND NECESSARY MODIFICATION IN ORDER MAY BE ISSUED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE MATERIAL ON RECORD. IN VIEW OF THE SUBSEQUENT DECIS ION OF THE HONBLE SUPREME COURT OF INDIA, IN THE CASE OF PALAM GAS SE RVICE CITED SUPRA, THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDE R OF THE TRIBUNAL. ACCORDINGLY, WE RECALL OUR ORDER DATED 31/03/2017 PASSED IN ITA NO. 1969/HYD/2011 AND DIRECT THE REGISTRY TO POST THE A PPEAL FOR HEARING ON PRIORITY BASIS AND ISSUE THE NECESSARY NOTICE OF HE ARING TO THE PARTIES ACCORDINGLY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2017 SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAH MAN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 17 TH OCTOBER, 2017. 3 M.A. NO. 44/HYD/2017 M/S BHARAT EXPORTERS KV COPY TO:- COPY TO:- 1) M/S BHARAT EXPORTERS, C/O SHRI P. MURALI & CO., CAS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 500 082. 2) ACIT, CIRCLE 6(1), HYD 3) CIT(A) - IV, HYDERABAD 4 CIT - III HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD. 6) GUARD FILE