NEENA KAUL, MUMBAI V. ASST CIT 24(3), MUMBAI

MA 506/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3537 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-07-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 05-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JAIPRAKASH R. CHAUHAN
• Keywords: Non-deduction of tax
• Section: 40(a)(ia); 201(1); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “B” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) MA No. 506/MUM/2019 (ITA No. 1386/MUM/2017) Assessment Year: 2010-11 Neena Kaul, Techniplex-2, Unit No. 2, 10 th floor, Opp. Hotel Grand Sarovar Park Premiere Goregaon (W), Mumbai. Vs. Asst. CIT-24(3), Pratyakhakar Bhavan, BKC, Bandra (E), Mumbai-400051. PAN No. ANAPK 4255 A Appellant Respondent Assessee by : Mr. Sunil G. Rohra,& Mr. Jaiprakash R. Chauhan, ARs Revenue by : Mr. Manoj Sinha, DR Date of Hearing : 15/07/2022 Date of pronouncement : 15/07/2022 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the assessee is seeking recall of order dated 21/05/2019 of the Tribunal in ITA No. 1386/M/2017 for assessment year 2010-11. 2. Before us the Ld. counsel of the assessee submitted t case of the assessee, account for trade discount ( (₹10,22,888/-) was disallowed in terms of section 40(a)(ia) of the Income-tax Act, 1961 (in short source. The Ld. CIT(A) confirmed the disallowance. Ag finding of the Ld. CIT(A) Tribunal. He submitted that before the raised ground No. 1 to 4 order adjudicate first three grounds and restric at the rate of the 30% of the expenses debited for non tax at source. The Ld. the assessee submitted that the deductee has already paid tax on the income corresponding to the expenditure debited by the assessee and the relevant Form Income-tax Rules, 1962 along with certificate of d. counsel of the assessee submitted t case of the assessee, the expenditure debited in profit and lo account for trade discount (₹12,85,858/-) and sales commission ) was disallowed in terms of section 40(a)(ia) of the , 1961 (in short ‘the Act’) for non-deduction of tax at T(A) confirmed the disallowance. Ag finding of the Ld. CIT(A), the assessee preferred appeal before the . He submitted that before the Tribunal, the assess raised ground No. 1 to 4, whereas the Tribunal while impugned order adjudicate first three grounds and restricted the disallowance at the rate of the 30% of the expenses debited for non Ld. counsel submitted that in the fourth ground submitted that the deductee has already paid tax on the income corresponding to the expenditure debited by the assessee Form No. 26A as prescribed under , 1962 along with certificate of Neena Kaul MA No. 506/M/2019 2 d. counsel of the assessee submitted that in the the expenditure debited in profit and loss ) and sales commission ) was disallowed in terms of section 40(a)(ia) of the deduction of tax at T(A) confirmed the disallowance. Against, said rred appeal before the the assessee has while impugned ted the disallowance at the rate of the 30% of the expenses debited for non-deduction of the fourth ground submitted that the deductee has already paid tax on the income corresponding to the expenditure debited by the assessee No. 26A as prescribed under Rule 31ACB of , 1962 along with certificate of Chartered Accountant in Annexure Act was duly filed before the disallowance was required in the case of the assessee. The counsel submitted that this ground adjudicated by the Tribunal the record, the impugned order need to be recalled to the extent of ground No. 4 for of the appeal. 3. The Ld. Departmental Representative ground No. 4 of the appeal has n 4. We have heard rival submission of the parties and perused the relevant material on record. The No. 1 to 4 of the appeal in para three of the impugn ground No. 4 raised by the assessee “4. On the facts and in the circumstances of the case & law the learned Assessing Officer has erred in ignoring and the learned CIT(A) has erred in confirming the non consideration of form 26A u/r 31 AB and the certificate of account in Annexure-A as provided under section 201 (1) of the was duly filed before the Assessing Officer and therefore no disallowance was required in the case of the assessee. The counsel submitted that this ground No. 4 of the appeal has not been Tribunal, which being a mistake the record, the impugned order need to be recalled to the extent of for of the appeal. Departmental Representative also fairly accepted that of the appeal has not been adjudicated. We have heard rival submission of the parties and perused the relevant material on record. The Tribunal has reproduced ground No. 1 to 4 of the appeal in para three of the impugn raised by the assessee is reproduced as under: On the facts and in the circumstances of the case & law the learned Assessing Officer has erred in ignoring and the learned CIT(A) has erred in confirming the non consideration of form 26A u/r 31 AB and the certificate of account in Neena Kaul MA No. 506/M/2019 3 A as provided under section 201 (1) of the and therefore no disallowance was required in the case of the assessee. The Ld. of the appeal has not been mistake apparent from the record, the impugned order need to be recalled to the extent of also fairly accepted that We have heard rival submission of the parties and perused the has reproduced ground No. 1 to 4 of the appeal in para three of the impugned order. The eproduced as under: On the facts and in the circumstances of the case & in law the learned Assessing Officer has erred in ignoring and the learned CIT(A) has erred in confirming the non consideration of form 26A u/r 31 AB and the certificate of account in annexure A as provided u/s. 201(1) of the Act filed on record and in not holding that provisions of section 40 (a)(ia) as amended are applicable to the appellant on account of the trade discount and share of commission amounting to ₹10,22,888/- allowed/paid to VAV Air conditioning by the appellant.” 4.1 Thus, we find that assessee in respect of the ground No. relief to the assessee, but ground No. ground No. 4 the assessee the disallowance, whereas in ground for 1 to 3, allowed to the assessee in respect of the Assessing Officer. Before us, the submitted that the Tribunal is no more, but the person who assisted him, has deposed in an affidavit that said ground No. Tribunal. This fact has not been Departmental Representative circumstances, we are of the opinion that there is a annexure A as provided u/s. 201(1) of the Act filed on record t holding that provisions of section 40 (a)(ia) as amended are applicable to the appellant on account of the trade discount and share of commission amounting to allowed/paid to VAV Air conditioning by the we find that Tribunal accepted the contention of the assessee in respect of the ground No. 1 to 3 and accordingly allowed relief to the assessee, but ground No. 4 has not been adjudicated. the assessee is seeking for hundred percent relief from whereas in ground for 1 to 3, 70% relief has been allowed to the assessee in respect of the disallowance Before us, the Ld. counsel of the assessee has submitted that the counsel who argued the matter before the is no more, but the person who assisted him, has deposed in an affidavit that said ground No. 4 was duly argued before the . This fact has not been controverted Departmental Representative. In view of the above facts and , we are of the opinion that there is a Neena Kaul MA No. 506/M/2019 4 annexure A as provided u/s. 201(1) of the Act filed on record t holding that provisions of section 40 (a)(ia) as amended are applicable to the appellant on account of the trade discount and share of commission amounting to allowed/paid to VAV Air conditioning by the accepted the contention of the to 3 and accordingly allowed has not been adjudicated. In seeking for hundred percent relief from 70% relief has been disallowance made by the counsel of the assessee has who argued the matter before the is no more, but the person who assisted him, has deposed was duly argued before the controverted by the Ld. . In view of the above facts and , we are of the opinion that there is a mistake apparent on record as far as non appeal is concerned adjudication of ground No. fix the appeal for hearing of ground No. four of the appeal after notifying both the parties 5. In the result, the allowed. Order pronounced in the Court on Sd/- (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 15/07/2022 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// apparent on record as far as non-adjudication of ground No. is concerned and therefore, we recall the appeal for of ground No. 4 of the appeal and direct the appeal for hearing of ground No. four of the appeal after notifying both the parties as per Rules. In the result, the Miscellaneous Application of the assessee is ounced in the Court on 15/07/2022. Sd/- RAHUL CHAUDHARY) (OM PRAKASH JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai Neena Kaul MA No. 506/M/2019 5 adjudication of ground No. 4 of the and therefore, we recall the appeal for of the appeal and direct the Registry to appeal for hearing of ground No. four of the appeal after of the assessee is OM PRAKASH KANT) MEMBER Sr. Private Secretary) ITAT, Mumbai