THE DCIT, CIRCLE - 2 (1), GUNTUR., Guntur V. M/s Transstroy (India) Limited, ., Guntur

MA 5/VIZ/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2579 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T CHAITANYA KUMAR
• Assessee Lawyers: K V N CHARYA; I SARISH KUMAR
• Keywords: Non-deduction of tax
• Section: 40A(3)

Judgement Text

1 M.A.NO.05/VIZ/2014 (ARISING OUT OF I.T.A. NO.292/VIZ/2012) ASSESSMENT YEAR: 2009-2010 IN THE INCOME TAX APPELLATE TRIBUNAL, VISHAKHAPATNA M BEFORE S/SHRI D.MANMOHAN (VP) & J.SUDHAKAR REDDY (A M) M.A.NO.05/VIZ/2014 (ARISING OUT OF I.T.A. NO.292/VIZ/2012) ASSESSMENT YEAR: 2009-2010 DCIT, CIRCLE - 2(1), GUNTUR VS. TRANSSTROY (INDIA) LIMITED, MANGALAGIRI ROAD, GUNTUR PAN/GIR NO. : AABCT 4226 B ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI K.V.N.CHARYA & I. SARISH KUMAR RESPONDENT BY : SHRI T.CHAITANYA KUMAR DATE OF HEARING : 28/11/2014 DATE OF PRONOUNCEMENT : 28/11/2014 O R D E R PER J.SUDHAKAR REDDY, AM BY THIS MISCELLANEOUS PETITION, THE REVENUE HAS ALL EGED THAT A MISTAKE APPARENT ON RECORD CREPT INTO THE ORDER OF THE TRIBUNAL DATED 5.7.2012 IN ITA NO.292/VIZ/2012. 2. THE CONTENTION OF THE REVENUE IS THAT THE TRIBUN AL HAS NOT DISPOSED OF THE GROUND RELATING TO DISALLOWANCE OF EXPENDITURE UNDER SECTI ON 40(A)(IA) OF THE ACT FOR NON-DEDUCTION OF TAX AT SOURCE FROM PAYMENT OF FREIGHT AND GROUND RE LATING TO THE DISALLOWANCE OF EXPENDITURE FOR VIOLATION OF PROVISIONS OF SECTION 40A(3) OF TH E ACT. 2 M.A.NO.05/VIZ/2014 (ARISING OUT OF I.T.A. NO.292/VIZ/2012) ASSESSMENT YEAR: 2009-2010 3. LD COUNSEL FOR THE ASSESSEE SUBMITS THAT THE REV ENUE HAS ALREADY FILED AN APPEAL BEFORE THE HONBLE HIGH COURT AND HENCE, MISCELLANEOUS APP LICATION DOES NOT LIE. ALTERNATIVELY, HE SUBMITS THAT THERE IS NO DISALLOWANCE U/S.40A(3) OF THE ACT BY THE AO AND CONSEQUENTLY, THERE WAS NO ADJUDICATION BY THE LD CIT(A) AND NEITHER TH E REVENUE HAD RAISED SUCH A GROUND BEFORE THE TRIBUNAL. ON DISALLOWANCE UNDER SECTION 40(A)( IA), HE SUBMITS THAT THE TRIBUNAL HAS, IN ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR, CO NSIDERED THE MATTER AND ADJUDICATED THE SAME IN ITS FAVOUR IN ITA NO.326/VIZ/2011. 4. ALTERNATIVELY, HE SUBMITS THAT AS THE ENTIRE INC OME OF THE ASSESSEE IS ALREADY EXEMPT UNDER SECTION 80-IA, AND THE DISALLOWANCE U/S.40(A) (IA) DOES NOT ALTER THE DETERMINATION OF TOTAL INCOME OF THE ASSESSEE AND HENCE NON DISPOSAL OF TH E GROUND IS NOT A MISTAKE APPARENT ON RECORD. 5. AFTER HEARING THE RIVAL CONTENTIONS, WE ARE OF T HE CONSIDERED OPINION THAT AN ERROR HAS CREPT INTO THE ORDER OF THE TRIBUNAL DATED 5.7.2012 AS IT HAS NOT DISPOSED OFF THE GROUND RELATING TO DISALLOWANCE OF EXPENDITURE U/S.40(A)(I A) OF THE ACT. AS FAR AS THE DISALLOWANCE OF EXPENDITURE UNDER SECTION 40A(3) IS CONCERNED, THER E IS NO MISTAKE APPARENT ON RECORD AS THERE IS NO GROUND TO THIS EFFECT RAISED BY THE REVENUE. 6. AS THE GROUND RELATING TO DISALLOWANCE U/S.40(A) (IA) HAS NOT BEEN DISPOSED OF BY THE TRIBUNAL, WE RECALL THE ORDER OF THE TRIBUNAL DATED 5.7.2012 IN ITA NO.292/VIZ/2012 TO THE LIMITED EXTENT OF DISPOSING OF THE GROUND RELATING TO DISALLOWANCE U/S.40(A)(IA) OF THE ACT. THE REGISTRY IS DIRECTED TO POST THE APPEAL ON 1.12.201 4 (MONDAY). THIS DATE WAS ANNOUNCED IN THE COURT IN THE PRESENCE OF BOTH THE PARTIES AND HENCE , NO SEPARATE NOTICE SHALL BE ISSUED. 7. IN THE RESULT, MISCELLANEOUS PETITION FILED BY T HE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/11/20 14 . SD/- SD/- (D.MANMOHAN ) (J.SUDHAKAR REDDY) VICE PRESIDENT ACCOUNTANT MEMBER VISHAKHAPATNAM DATED 28 / 11/2014 PARIDA , SR. PS 3 M.A.NO.05/VIZ/2014 (ARISING OUT OF I.T.A. NO.292/VIZ/2012) ASSESSMENT YEAR: 2009-2010 COPY OF THE ORDER FORWARDED TO : 1. T H E A S S E S S E E : TRANSSTROY (INDIA) LIMITED, MANGALAGIRI ROAD, GUNTUR 2. THE R E V E N U E : DCIT, CIRCLE - 2(1), GUNTUR 3. THE CIT(A) - VISAKHAPATNAM 4. CIT , VISAKHAPATNAM 5. DR, ITAT, VISHAKHAPATNAM 6. GUARD FILE. BY ORDER SR.PS, ITAT, VISHAKHAPATNAM //TRUE COPY//