M/s. Sahara India Mass Communication, New Delhi V. ACIT, New Delhi

MA 5/DEL/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5237 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1994-1995
• Appeal Filed On: 05-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: JI MEHROTRA
• Keywords: Business income
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH FRIDAY NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV: HONBLE JUDICIAL MEMBER M.A. NO.05/DEL/2010 (IN ITA NOS.465 & 472/DEL/2001) ASSESSMENT YEAR: 1994-95 M/S. SAHARA INDIA MASS COMMUNICATION VS. ASST.CO MMISSIONER OF IT, 7 TH FLOOR, AMBADEEP BUILDING, KG MARG, CIRCLE 1, CONNAUGHT PLACE, NEW DELHI. NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI JI MEHROTRA, CA RESPONDENT BY: SHRI HK LAL, SR. DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED A T THE INSTANCE OF THE ASSESSEE POINTING OUT AN APPARENT ERROR IN THE ORDE R OF THE ITAT DATED 29.5.2009. IT IS PLEADED IN THE MISCELLANEOUS APPLI CATION THAT IN GROUND NO.9, ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF RS.1,10 ,202. THE ABOVE SUM WAS DISALLOWED BY THE ASSESSING OFFICER OUT OF THE SALES-TAX ACCOUNT. ACCORDING TO THE ASSESSING OFFICER, THIS AMOUNT CON TAINS TWO PARTS, NAMELY, RS.19,858 IS THE DIFFERENCE BETWEEN THE TOTAL SALES -TAX LIABILITY AND THE ACTUAL PAYMENT. THE SECOND AMOUNT IS OF RS.90,344. ACCORDI NG TO THE ASSESSING OFFICER, IN THE BALANCE SHEET OF THE LAST YEAR, A S UM OF RS.96,226 WAS SHOWN OUTSTANDING SALES-TAX LIABILITY. THE ASSESSEE CONTE NDED BEFORE THE REVENUE 2 AUTHORITIES IN ASSESSMENT YEAR 1994-95, IT HAS PAID A SUM OF RS.1,86,570 WHICH EXCEED BY RS.90,344 THEN THE ACTUAL AMOUNT PA YABLE BY THE ASSESSEE ON ACCOUNT OF SALES-TAX LIABILITY. THE ASSESSEE CLA IMED THAT THIS EXCESS AMOUNT PAID EARLIER BE ADJUSTED AGAINST THE CURRENT YEAR LIABILITY AND, THEREFORE, IT BE CONSTRUED AS ACTUALLY PAID IN THIS YEAR. THUS, IT DESERVES TO BE ALLOWED AS DEDUCTION UNDER SEC. 43B OF THE ACT. THI S CLAIM WAS NOT ACCEPTED BY THE LEARNED CIT(APPEALS) AND HE MADE A DISCUSSIO N IN PARAGRAPH NO.11. 2. APART FROM THIS ISSUE, THE ASSESSEE HAS RAISED A N ADDITIONAL GROUND IN RESPECT OF SALES-TAX PAYABLE, THAT GROUND HAS BEEN DISCUSSED BY THE LEARNED CIT(APPEALS) IN PARAGRAPH 14 OF HIS ORDER. IN THIS GROUND, ASSESSEE TOOK TWO ADDITIONAL GROUNDS, ONE ON ACCOUNT OF SALES-TAX PAY ABLE AT RS.2,03,149 AND THE SECOND IN RESPECT OF PF PAYABLE AMOUNTING TO RS .2,63,722. THESE HAVE BEEN REFERRED TO THE ASSESSING OFFICER BY THE LEARN ED CIT(APPEALS). ASSESSING OFFICER WAS REQUIRED TO VERIFY THE DETAIL S. 3. THE ITAT WHILE CONSIDERING THE GROUND OF APPEAL RAISED BY THE REVENUE IN RESPECT OF THESE TWO ADDITIONAL GROUNDS RAISED BEFORE THE LEARNED CIT(APPEALS) IN A WAY CONSTRUED THAT GROUND NO.9 IS PART OF THAT GROUND AND REJECTED THE SAME. THE ITAT HAS NOT SPECIFICALLY DE ALT WITH GROUND NO.9 OF THE GROUND OF APPEAL RAISED BY THE ASSESSEE. THIS G ROUND IS ALTOGETHER A SEPARATE GROUND. THE ASSESSEE HAS ACTUALLY MADE THE PAYMENT AND, THEREFORE, 3 NO DISALLOWANCE DESERVES TO BE MADE UNDER SEC. 43B OF THE ACT. LEARNED DR ON THE OTHER HAND WAS UNABLE TO CONTROVERT THE CONT ENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. ON PERUSAL OF THE ITATS ORDER, W E FIND THAT THE ITAT FAILED TO TAKE NOTE OF THE AMOUNT DISPUTED BY THE A SSESSEE IN GROUND NO.9. IN THIS GROUND, ASSESSEE IS IMPUGNING DISALLOWANCE OF RS.1,10,202. IT IS ALTOGETHER A DIFFERENT ISSUE THEN THE ONE CONSIDERE D BY THE ITAT WHILE REFERRING A SUM OF RS.2,03,149 AND THE SAME SUM IS AN ISSUE RAISED BY THE ASSESSEE BY WAY OF A ADDITIONAL GROUND OF APPEAL BE FORE THE LEARNED CIT(APPEALS). THIS HAS BEEN DISCUSSED IN PARAGRAPH 14 OF THE IMPUGNED ORDER WHEREAS THE AMOUNT AGITATED BY THE ASSESSEE I N ITS APPEAL HAS BEEN DISCUSSED BY THE LEARNED CIT(APPEALS) IN PARAGRAPH 11. ON DUE CONSIDERATION OF THESE FACTORS, WE ARE OF THE VIEW THAT ITAT FAILED TO CONSIDER THE GROUND NO.9 RAISED BY THE ASSESSEE WHI LE DISPOSING OF THE APPEAL. HENCE, IT IS AN APPARENT MISTAKE WHICH REQU IRED TO BE RECTIFIED. THE ARGUMENT OF THE ASSESSEE IN RESPECT OF THIS GROUND IS THAT IT HAS MADE ACTUAL PAYMENT AND NO DISALLOWANCE UNDER SEC. 43B IS TO BE MADE. LEARNED REVENUE AUTHORITIES HAVE FAILED TO APPRECIATE THE FACTS AND CIRCUMSTANCES IN RIGHT PERSPECTIVE. TAKING INTO CONSIDERATION THE SUBMISSI ONS RAISED BY THE LEARNED 4 COUNSEL FOR THE ASSESSEE IN THE LIGHT OF THE FINDIN GS RECORDED BY THE LEARNED CIT(APPEALS), WE ARE OF THE VIEW THAT THIS ISSUE NE EDS VERIFICATION AT THE LEVEL OF ASSESSING OFFICER. ASSESSING OFFICER SHALL VERIFY THE DETAILS WHETHER ASSESSEE HAS ACTUALLY MADE THE PAYMENT OF SALES-TAX IN THIS YEAR BEFORE MAKING DISALLOWANCE UNDER SEC. 43B OF THE ACT. THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED AND THE ISSU E IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION. WE ORDER ACCORDINGLY. DECISION PRONOUNCED IN THE OPEN COURT ON 08.10.201 0 ( G.E. VEERABHADRAPPA) ( RAJPAL YADAV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 08/10/2010 MOHAN LAL COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR:ITAT ASSISTANT REGISTRAR