ACIT, Trichur V. Sri. P.K.Kannan, Trichur

MA 48/COCH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0799 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 22-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JOHN

Judgement Text

MP NO.48 / COCH/ 2013 1 IN THE INCOME TAX APELALTER TIBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI N.R.S. GANESAN, JM & B. R. BASKARAN, AM MISCELLANEOUS PETITION NO. 48 /COCH/2013 ARISING OUT OF ITA NO. 411 /COCH/20 09 (ASST YEAR 200 6 - 07 ) THE ASST COMMR OF INCOME TAX CIRCLE 23(1), RANG E 2 TRICHUR VS SHRI P K KANNAN PROP VIJAYA CONSTRUCTIONS POONKUNNAM TRICHUR 6780 002 ( APP LICANT ) (R ESPONDENT) PAN NO. ACWPP 6075A ASSESSEE BY NONE REVENUE BY SHRI K K JOHN SR DR DATE OF HEARING 16 TH AUG 2013 DATE OF PRONOUNCEMENT 16 TH AUG 20 13 OREER PER N.R.S GANESAN,JM : THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL PASSED IN ITA NO 411/COCH/2009 DATED 27 TH JULY 2012. 2 NONE APPEARED ON BEHALF OF THE RESPOND ENT ASSESSEE WHEN THE APPLICATION WAS TAKEN UP FOR HEARING. THEREFORE, WE DECIDE TO DISPOSE OF THE MISCELLANEOUS PETITION ON MERIT. MP NO.48 / COCH/ 2013 2 3 THE LD DR SUBMITTED THAT THE ADDITION OF RS. 1,73,42,091/ - WAS MADE ON ACCOUNT OF NON DEDUCTION OF TAX AT THE TIME OF MAKING THE PAYMENT TO THE SUBCONTRACTORS. THE CIT(A) DELETED THE ADDITION; THEREFORE, THE DEPARTMENT FILED THE APPEAL BEFORE THIS TRIBUNAL. THIS TRIBUNAL REMANDED THE MATTER BACK TO THE FILE OF THE AO FOR RECONSIDERATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING &N TRANSPORT VS ACIT (2012) 790 DTR 81. ACCORDING TO THE LD DR FOR THE AY 2005 - 06 , THE VERY SAME ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL. MOREOVER, THE OPERATION OF THE DECISION OF THE SPECIAL BENCH OF ITAT VISAKHAPATTANAM IN THE CASE OF MERILYN SHIPPING & TRANSPORT (SUPRA) WAS SUSPENDED BY THE ANDHRA PRADESH HIGH COURT. THEREFORE, THE LD DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 27.7.2012 MAY BE RECALLED. 4 WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL. THIS TRIBUNAL REMANDED THE ISSUE BACK TO THE FILE OF THE AO FOR RECONSIDERATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORT (SUPRA) . WHEN THE APPEAL OF THE ASSESSEE FOR THE AY 2005 - 06 WAS DECIDED, THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORT (SUPRA) WAS NOT BROUGHT TO THE NOTICE OF THE BENCH. THE DIRECTION OF THE TRIBUNAL WAS TO DECIDE THE MATTER IN ACCORDANCE WITH LAW AFTER RECONSIDERATION IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH. MP NO.48 / COCH/ 2013 3 4.1 NOW , THE CALCUTTA HIGH COURT AND THE GUJARAT HIGH COURT DISAPPROVED THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORT (SUPRA); THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS RECONSIDERATION AFTER TAKING INTO CONSIDERATION THE JUDGMENT OF THE CALCUTTA AND GUJARAT HIGH COURTS AND THEREAFTER THE AO HAS TO DECIDE THE SAME IN ACCORDANCE WITH LAW. 5 IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE OPINION THAT THERE IS NO ERROR, MUCH LESS PRIMA FACIE, IN THE ORDER OF THE TRIBUNAL FOR EXERCISE OF JURISDICTION U/S 254 OF THE ACT. ACCORDINGLY, THE MISCELLANEOUS PETITION STANDS DIS MISSED. 6 IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING I.E. 16 TH AUG 2013. SD/ - SD/ - ( B.R. BASKARAN) ( N .R.S GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 16 TH , AUG 2013 RAJ* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN