HNDUSTAN THOMPSON ASSOCIATES P.LTD, V. ASST CIT RG 11(1),

MA 480/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9733 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Assessment Year: 2006-2007
• Appeal Filed On: 20-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PANKAJ JAIN

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L MUMBAI , / BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER /AND , ! SHRI RAJENDRA, ACCOUNTANT MEMBER M.A. NO. 479/MUM/2012 (ARISING OUT OF ITA NO. 6666/MUM/2011) ASSESSMENT YEAR 2005-06 M.A. NO. 480/MUM/2012 (ARISING OUT OF ITA NO. 1302/MUM/2011) ASSESSMENT YEAR 2006-07 HINDUSTAN THOMPSON ASSOCIATES P. LTD., PENINSULA CHAMBERS, GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI 400 013. PAN: AAACH 1463 M VS. ASST. COMMISSIONER OF INCOME TAX, RANGE - 11(1), AAYAKAR BHAVAN, 101, M.K. MARG, MUMBAI-400 020. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI PANKAJ JAIN RESPONDENT BY : SHRI DINESH KUMAR ' #$! / DATE OF HEARING : 16-11-2012 %&' ' #$! / DATE OF PRONOUNCEMENT : 05-12-2012 / O R D E R PER RAJENDRA, A.M. M.A. NO. 479/MUM/2012 FOLLOWING SUBMISSIONS WERE MADE BY THE ASSESSEE-CO MPANY IN THE MISCELLANEOUS APPLICATION DT. 20-07-2012 FILED U/S. 254(2) OF THE INCOME TAX ACT, 1961 (ACT): M.A. NO. 479/MUM/2012 (ARISING OUT OF ITA NO. 6666/MUM/2011) M.A. NO. 480/MUM/2012 (ARISING OUT OF ITA NO. 1302/MUM/2011) 2 A. AT PARA 24 OF THE ORDER, THE HONBLE TRIBUNAL, WHIL E DISMISSING GROUND NO.2 OF DEPARTMENTAL APPEAL, HAS INADVERTENTLY MENT IONED WHEN THERE IS NO SHORT DEDUCTION OF TAX INSTEAD OF WHEN THERE IS SHORT DEDUCTION OF TAX. THE PETITIONERS PRAYS THAT THE WORD NO BE REMOVED. B. THE HONBLE TRIBUNAL HAS INADVERTENTLY NOT ADJUDICA TED GROUND NO. 3( C ). C. THE HONBLE TRIBUNAL HAS INADVERTENTLY NOT ADJUDICA TED 4(A), 4(B) AND 4( C ) OF PETITIONERS APPEAL. EACH GROUND IS WITH OUT PREJUDICE TO THE OTHER. THE HONBLE TRIBUNAL HAS AT PARA 8 (AY 2006 -07) DECIDED THE ISSUE SIMILAR TO THAT RAISED IN GROUND NO.4( C ) FOR THE ABOVE YEAR. THE PETITIONER THEREFORE PRAYS THAT GROUND NO. 4( C ) B E DECIDED IN ACCORDANCE WITH THE FINDING GIVEN IN PARA 8. ACCORDINGLY, GRO UND NO. 4(A) AND 4(B) WILL BECOME INFRUCTUOUS. IN VIEW OF THE ABOVE FACTS THE PETITIONERS PRAY THA T THE ORDER PASSED BY THE HONBLE MEMBERS OF L BENCH BE AMENDED ACCORDINGLY . THE PETITIONERS THEREFORE PRAY FOR A SYMPATHETIC CO NSIDERATION OF THIS PETITION AND THE PRAYERS MADE IN THE INITIAL PARAGRAPH AND O BLIGE. 2. FACTS OF THE CASE: I. ASSESSEE AS WELL AS DEPARTMENT HAD FILED APPEAL AGA INST THE CIT(A)-11 MUMBAI. II. TRIBUNAL PASSED CONSOLIDATED ORDER FOR AY 2005-06 T O AY 2007-08 WITH REGARD TO APPEALS FILED BY THE ASSESSEE VIDE O RDER DT. 25-05-2012 BY THE SAME ORDER, TWO APPEALS FILED BY THE AO AY 2 005-06 AND 2006- 07 WERE ALSO DISPOSED OFF. III. AS PER THE ASSESSEE AT PARA NO. 24 OF THE ORDER, TR IBUNAL WHILE DISMISSING GROUND NO.2 OF THE APPEAL FILED BY THE A O HAS MENTIONED (WHEN THERE IS NO SHORT DEDUCTION OF TAX). AS PE R THE ASSESSEE, THE WORD NO HAS BEEN TYPED INADVERTENTLY. WE HAVE P ERUSED THE ORDER OF THE TRIBUNAL. PARA NO. 24 READS AS UNDER: CONSISTENT WITH THE VIEW TAKEN BY US WHILE DISPOSI NG OFF GROUND NO.2, OF REVENUES APPEAL FOR ASSESSMENT YEAR 2006-07, WE DI SMISS THESE GROUNDS OF APPEAL AS NO DISALLOWANCE UNDER SECTION 40(A)(IA) C AN BE MADE WHEN THERE IS NO SHORT DEDUCTION OF TAX. 2.1 WE FIND THAT SUBMISSION MADE BY THE ASSESSEE IS CO RRECT. LAST TWO LINES OF THE PARA NO. 24 SHOULD BE READ AS UNDER: .WE DISMISS THESE GROUNDS OF APPEAL AS NO DIS -ALLOWANCE U/S. 40(A)(IA) CAN BE MADE WHEN THERE IS SHORT DEDUCTION OF TAX. 3. IT WAS FURTHER BROUGHT TO OUR NOTICE THAT GROUND N O. 3 ( C ) OF THE APPEAL FILED BY THE ASSESSEE FOR THE AY 2005-06 WAS NOT ADJUDICA TED UPON BY THE TRIBUNAL. WE M.A. NO. 479/MUM/2012 (ARISING OUT OF ITA NO. 6666/MUM/2011) M.A. NO. 480/MUM/2012 (ARISING OUT OF ITA NO. 1302/MUM/2011) 3 FIND THAT IN PARA NO. 27 OF THE ORDER, GROUND NOS. 3(A), 3(B) AND 3 ( C ) AND 3 (D) ARE MENTIONED. BUT WHILE DECIDING THE APPEAL, TRIBUNAL HAS NOT DECIDED GROUND NO. 3 ( C ) RAISED BY THE ASSESSEE. AS THE ISSUE R AISED BY THE ASSESSEE HAS REMAINED UN-ADJUDICATED, WE RESTORE THE ISSUE TO BE PLACED B EFORE THE REGULAR BENCH OF THE TRIBUNAL FOR FRESH ADJUDICATION. 4. NEXT SUBMISSION MADE BY THE ASSESSEE IS ABOUT NOT ADJUDICATING GROUND NOS. 4 (A), 4(B) AND 4( C ) OF PETITIONERS APPEAL. IT WAS FURTHER SUBMITTED THAT TRIBUNAL HAD AT PARA 8 (AY 2006-07) DECIDED THE ISSUE SIMILAR TO THAT RAISED IN GROUND NO. 4 ( C ) FOR THE ABOVE YEAR, THAT IF GROUND NO. 4 ( C ) WAS DECIDED IN ACCORDANCE WITH THE FINDING GIVEN IN PARA 8, GROUND NO. 4 (A) AND 4 (B) WOULD BECOME INFRUCTUOUS. 5. WE HAVE PERUSED THE RECORD AND WE FIND THAT ISSUE R AISED IN GROUND NO. 4 ( C ) OF THE APPEAL WAS NOT ADJUDICATED UPON BY THE TRIBU NAL AND THAT SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE WHILE PASSING THE ORDER FOR THE AY 2006-07 AT PARA NO.8 AS SUBMITTED BY THE ASSESSEE. FOR DECIDING TH E ISSUE RAISED IN GROUND NO.4 ( C ), THE MATTER IS RESTORED BACK TO THE REGULAR BENCH. ISSUES RAISED BY GROUND NOS. 4(A) AND 4(B) WOULD ALSO BE DECIDED UPON BY THE REGULAR BENCH AFTER TAKING INTO CONSIDERATION THE RELEVANT MATERIAL. 6. MISCELLANEOUS APPLICATION NO. 479/MUM/2012 FILED BY THE ASSESSEE STANDS PARTLY ALLOWED AS INDICATED ABOVE. M.A. NO. 480/MUM/2012 7. ASSESSEE VIDE ITS APPLICATION DT. 20-07-2012 HAS SU BMITTED AS UNDER: ON A PERUSAL OF THE DECISION FOR THE ABOVE YEAR (P ARA 8 & 17 OF THE ORDER) THE PETITIONER HAVE NOTED THE FOLLOWING FACTUAL ERROR/O MISSION: A. AT PARA 8 OF THE ORDER, THE HON TRIBUNAL HAS INADV ERTENTLY REFERRED TO GROUND NO. 2(B). THE PETITIONER PRAYS THAT THE REF ERENCE TO GROUND NO.2(B) BE REMOVED AS IT A SEPARATE GROUND OF APPEAL WHICH IS ADJUDICATED IN PARA NO.9. B. AT PARA 8 OF THE ORDER, THE HON TRIBUNAL HAS OMITT ED THE NAME OF THE CASE EVEN THOUGH THE CITATION HAS BEEN CORRECTLY MENTION ED. THE PETITIONER PRAYS THAT THE NAME OF THE CASE LAW M/S. CHANDABHOY JASS OBHOY BE MENTIONED. C. AT PARA 17 THE HON TRIBUNAL HAS INADVERTENTLY REFE RRED TO GROUND NO. 2(A) INSTEAD OF GROUND NO. 2(B). THE PETITIONER PRAYS T HAT WORDS GROUND NO.2(A) BE CHANGED TO GROUND NO.2(B). 8. WE HAVE PERUSED THE ORDER PASSED BY THE TRIBUNAL ON 25-05-2012. AT PARA NO.8, LINE NO. 5 OF THE ORDER IT IS SEEN THAT TRIBU NAL HAS REFERRED TO GROUND NO.2(B). WE FIND THAT THE SAID GROUND WAS SEPARATELY ADJUDIC ATED UPON IN PARA NO. 9. HENCE, FIRST TWO LINES OF THE PARA 8 SHOULD BE READ AS UND ER: ON THE ISSUE OF DISALLOWANCE UNDER SECTION 40(A)(I A), IN GROUND NO.2(A) HE SUBMITTED THAT TDS WAS DEDUCTED AT 2.24% UNDER SECT ION 194C.. M.A. NO. 479/MUM/2012 (ARISING OUT OF ITA NO. 6666/MUM/2011) M.A. NO. 480/MUM/2012 (ARISING OUT OF ITA NO. 1302/MUM/2011) 4 9. WE FURTHER FIND THAT IN THE LAST LINE OF THE ORDER OF PARA NO.8, THE NAME OF THE CASE IS NOT MENTIONED. THE LAST TWO LINES OF THE P ARA NO.8 SHOULD BE READ AS UNDER: FOR THIS PROPOSITION, HE RELIED ON THE ORDER OF TH E TRIBUNAL IN ITA NO. 20/MUM/2010, IN THE CASE OF M/S. CHANDABHOY JASSOBH OY. 10. WITH REGARD TO SUBMISSION MADE BY THE ASSESSEE VID E C OF THE APPLICATION, WE FIND THAT TRIBUNAL HAS REFERRED GROUND NO. 2(A) INS TEAD OF GROUND NO. 2(B). FIRST TWO LINES OF THE PARA NO. 17 SHOULD BE READ AS UNDER: GROUND NO. 2B AS SUGGESTED BY BOTH THE PARTIES, WE SET ASIDE THE SAME TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION. 11. MISCELLANEOUS APPLICATION NO. 480/MUM/2012 FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DECEMBER, 2012. ' %&' ! ) * 5 TH DECEMBER, 2012 & ' + , SD/- SD/- ( / D.K. AGARW AL) ( / RAJENDRA) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER MUMBAI, DATE: 5 TH DECEMBER, 2012 TNMM COPY TO: 1. APPLICANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR L BENCH, ITAT, MUMBAI 6. GUARD FILE -.# /# //TRUE COPY// / BY ORDER, 0 00 0 / 1 1 1 1 DY./ASST. REGISTRAR , / ITAT, MUMBAI