Sanjay Digambar Malve, Nashik V. Income-tax Officer,

MA 51/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2716 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-12-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 10-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER MA NO.51/PN/2014 (ARISING OUT OF ITA NO. 95/PN/2012 (ASSESSMENT YEAR : 2006-07) SANJAY DIGAMBER MALVE, 4A, PLEASANR PARK, PUMPING STATION ROAD, GANGAPUR ROAD, NASHIK PAN NO.AFTPM 5169A .. APPLICANT VS. ITO, WARD-1(4), NASHIK .. RESPONDENT ASSESSEE BY : NONE RESPONDENT BY : SHRI RAJESH DAMOR DATE OF HEARING : 19-12-2014 DATE OF PRONOUNCEMENT : 05-01-2015 ORDER PER R.K. PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL ITS ORDER WHEREIN T HE APPEAL FILED BY THE REVENUE HAS BEEN ALLOWED FOR STATISTICAL PURPOS ES. 2. ON PERUSAL OF THE RECORD, WE FIND THAT THE NOTIC E ISSUED BY THE TRIBUNAL THROUGH RPAD TO THE ASSESSEE AS PER TH E ADDRESS FURNISHED BY THE ASSESSEE WAS RETURNED UNSERVED BY THE POSTAL AUTHORITIES WITH THE REMARK UNCLAIMED. IT IS ALS O SEEN THAT AT THE TIME OF HEARING BEFORE THE TRIBUNAL, NONE APPEARED ON BEHALF OF THE ASSESSEE FOR WHICH THE TRIBUNAL HAS PASSED EXPA RTE ORDER. WE THEREFORE DEEM IT PROPER TO ADJUDICATE THE MISCELLA NEOUS 2 APPLICATION ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD AND AFTER HEARING LD. DEPARTMENTAL REPRESENTATIVE. 3. AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIV E AND ON PERUSAL OF THE RECORD, WE FIND THE ASSESSING OFFICE R IN THE INSTANT CASE HAS DISALLOWED AN AMOUNT OF RS.2,06,67,737/- U /S.40(A)(IA) OF THE I.T. ACT ON THE GROUND THAT ASSESSEE HAS NOT D EDUCTED TDS AND DEPOSITED THE SAME TO THE CREDIT OF THE CENTRAL GOV T. AS PER THE I.T. PROVISIONS. IN APPEAL THE LD.CIT(A) HELD THAT OF R S.1,29,33,659/- PAID ON ACCOUNT OF LABOUR CHARGES AND RS.54,30,557/ - PAID ON ACCOUNT OF TRANSPORTATION CHARGES BY THE ASSESSEE T ILL FEBRUARY 2006 FOR WHICH TDS WAS TO BE DEDUCTED AND DEPOSITED BEFORE LAST DAY OF THE PREVIOUS YEAR WILL NOT BE HIT BY THE PRO VISIONS OF SECTION 40(A)(IA). ACCORDINGLY, THE LD.CIT(A) SUST AINED DISALLOWANCE U/S.40(A)(IA) TO THE EXTENT OF RS.5,34 ,485/- AS AGAINST DISALLOWANCE MADE BY THE ASSESSING OFFICER AT RS.2, 06,66,737/-. ON APPEAL FILED BY THE REVENUE THE TRIBUNAL VIDE OR DER DATED 28- 06-2013 RESTORED THE ISSUE TO THE FILE OF THE CIT(A ) WITH THE FOLLOWING OBSERVATION : 6. WE HAVE CONSIDERED THE ORDER OF THE ASSESSING OFFICE R AND THE CIT(A) AND HEARD THE LD. DEPARTMENTAL REPRESENTA TIVE. WE FIND THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. CRESCENT EXPORT SYNDICATE REPORTED IN 33 TAXMANN.COM 250 HAS HELD THAT THE PROVISIONS OF SECTION 40(A)(IA) ARE APPL ICABLE NOT ONLY TO THE AMOUNTS WHICH IS SHOWN AS PAYABLE ON THE DA TE OF BALANCE SHEET, BUT IS APPLICABLE TO SUCH EXPENDITURE, WHICH BECOME PAYABLE AT ANY TIME DURING THE RELEVANT PREV IOUS YEAR AND WAS ACTUALLY PAID WITHIN THE PREVIOUS YEAR. 6.1 SIMILARLY, THE HONBLE GUJARAT HIGH COURT IN TH E CASE OF CIT VS. SIKANDARKHAN N. TUNVAR REPORTED IN 33 TAXMANN.CO M 133 HAS HELD THAT SECTION 40(A) (IA) WOULD COVER NOT ONLY T O THE AMOUNTS WHICH ARE PAYABLE AS ON 31ST MARCH OF A PARTICULAR YEAR BUT ALSO WHICH ARE PAYABLE AT ANY TIME DURING THE YEAR. THE TERM USED IS 3 INTEREST, COMMISSION, BROKERAGE ETC. IS PAYABLE TO A RESIDENT OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR F OR CARRYING OUT ANY WORK. THE LANGUAGE USED IS NOT THAT SUCH AMOUNT MUST CO NTINUE TO REMAIN PAYABLE TILL THE END OF THE ACCOUNTING YEAR. ANY SUCH INTERPRETATION WOULD REQUIRE READING WORDS WHICH TH E LEGISLATURE HAS NOT USED AND IS NOT ACCEPTABLE. 6.2 SINCE THE ABOVE DECISIONS WERE NOT AVAILABLE BEFO RE THE LD. CIT(A) WHILE DECIDING THE APPEAL WHO HAS FOLLOWED C ERTAIN TRIBUNAL DECISIONS, THEREFORE, WE IN THE INTEREST OF JUSTICE, DEEM IT PROPER TO RESTORE THE ISSUE TO HIS FILE FOR DECIDING T HE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 4. AGGRIEVED WITH SUCH ORDER OF THE TRIBUNAL THE AS SESSEE HAS FILED THE MISCELLANEOUS APPLICATION STATING THAT FO LLOWING THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL, TH E TRIBUNAL IN ANOTHER CASE HAS ALLOWED SUCH CLAIM OF THE ASSESSEE HOLDING THAT NO DISALLOWANCE U/S.40(A)(IA) IS PERMISSIBLE WHEN N O AMOUNT IS PAYABLE AT THE END OF THE YEAR. THEREFORE, THE ORD ER OF THE TRIBUNAL IS ERRONEOUS AND THEREFORE, A MISTAKE HAS CREPT IN THE ORDER FOR WHICH THE SAME SHOULD BE RECALLED OR MODIFIED. 5. WE HAVE CONSIDERED THE CONTENTS OF THE MISCELLAN EOUS APPLICATION AND HEARD THE LD. DEPARTMENTAL REPRESEN TATIVE. WE FIND THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FIL E OF THE CIT(A) TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE DECISIO N OF THE HONBLE GUJARAT HIGH COURT AND HONBLE CALCUTTA HIGH COURT WHICH WERE NOT BROUGHT TO HIS NOTICE AT THE TIME OF HEARING BE FORE HIM. SO FAR AS THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBU NAL RELIED ON BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION, T HE SAME IS OF NO USE AFTER THE DECISION OF THE HONBLE GUJARAT HIGH COURT. SINCE THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE LD.CIT(A), 4 AND THERE BEING NO OTHER MISTAKE APPARENT FROM RECO RD POINTED OUT BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION, T HEREFORE, IN ABSENCE OF ANY MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE. ACCORDINGLY, THE SAME IS DISMISSED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH JANUARY, 2015. SD/- SD/- (R.S. PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 5 TH JANUARY, 2015 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II, NASHIK 4 CIT-II, NASHIK 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, ITAT, PUNE BENCHES, PUNE