ITO, Kota V. VASTUVEDIK COLONIZERS & DEVLOPERS PVT. LTD., Kota

MA 57/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6803 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHANMUGA PRIYA
• Keywords: Question of law

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO.57/JP/2018 (ARISING OUT OF ITA NO. 320/JP/2015) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 INCOME TAX OFFICER, WARD-1(1), KOTA CUKE VS. M/S VASTUVEDIC COLONIZERS AND DEVELOPERS PVT. LTD., 1, AERODRAME CIRCLE, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCV 9754 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. SHANMUGA PRIYA (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 08/06/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 08/06/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE REVENUE HAS MOVED THE PRESENT MISC. APPLICATION AGAINST THE ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 320 /JP/2015 DATED 15.02.2017. 2. IN ITS PETITION, THE REVENUE HAS SUBMITTED THAT THE HONBLE RAJASTHAN HIGH COURT IN DB APPEAL NO. 212/2017 DATE D 04.09.2017 HAS HELD AS UNDER:- 3.2 WE ARE NOT INCLINED TO ENTERTAIN THE SAME. HOW EVER, ON THE SECOND ISSUE, THE JUDGMENT WHICH SOUGHT TO BE RELIE D UPON BY THE M.A. NO. 320/JP/2015 ITO, KOTA VS. M/S VASTUVEDIC COLONIZERS AND DEVELOP ERS PVT. LTD., KOTA 2 TRIBUNAL IS NOW OVERRULED BY THE SUBSEQUENT JUDGMEN T IN PALAM GAS SERVICE VS. COMMISSIONER OF INCOME TAX 2017 (5) SCA LE 759 WHEREIN THE SUPREME COURT HELD AS UNDER:- IN VIEW OF THE AFORESAID DISCUSSION, WE HOLD THAT THE VIEW TAKEN BY THE HIGH COURTS OF PUNJAB & HARYANA, MADRAS AND CALCUTTA IS THE CORRECT VIEW AND THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN CIT VS. VECTOR SHIPPING SERVICES (P) LTD., (2013) 3 57 ITR 642 DID NOT DECIDE THE QUESTION OF LAW CORRECTLY. THUS, INSOFAR AS THE JUDGMENT OF THE ALLAHABAD HIGH COURT IS CONCERNED, WE OVERRULE THE SAME. CONSEQUENCES OF TH E AFORESAID DISCUSSION WILL BE TO ANSWER THE QUESTION AGAINST T HE APPELLANT/ASSESSEE THEREBY APPROVING THE VIEW TAKAE N BY THE HIGH COURT. 3.3 IN THAT VIEW OF THE MATTER INSTEAD OF RELEGATIN G THE ASSESSEE TO INCUR EXPENSES BEFORE THE HIGH COURT, WE ALLOW THE DEPARTMENT TO FILE ROM APPLICATION BEFORE THE TRIBUNAL. THE TRIBUNAL W ILL CONSIDER THE ISSUE ON THE ROM APPLICATION. THE APPEAL STANDS DISPOSED OF. 3. IT WAS SUBMITTED THAT IN VIEW OF THE HONBLE RAJ ASTHAN HIGH COURT DECISION, THE ORDER PASSED BY THE CO-ORDINATE BENCH MAY KINDLY BE REVIEWED ON THE ISSUE OF DISALLOWANCE U/S 40(A)(IA) OF THE ACT. 4. AFTER HEARING BOTH THE PARTIES AND IN VIEW OF TH E DECISION OF THE HONBLE RAJASTHAN HIGH COURT, THE DECISION OF THE C OORDINATE BENCH IS HEREBY RECALLED TO THE LIMITED EXTENT OF FOLLOWING GROUNDS OF APPEAL PERTAINING TO SECTION 40(A)(IA) OF THE ACT: M.A. NO. 320/JP/2015 ITO, KOTA VS. M/S VASTUVEDIC COLONIZERS AND DEVELOP ERS PVT. LTD., KOTA 3 (II) DELETING THE ADDITION OF RS. 2,50,000/- MADE BY AO BY DISALLOWING EXPENSES U/S 40(A)(IA) OF THE ACT. THE LD. CIT (A) HAS NOT APPRECIATED THE FACT THAT THE ASSESSEE HAD FAIL ED TO FURNISH CERTIFICATE IN PRESCRIBED FROM THE PAYEE AS STIPULA TED IN SECTION 201 OF THE ACT AS WELL AS THE FACT THAT THE ASSESSE E FAILED TO DEDUCT ANY TAX AT SOURCE U/S 194J. (III) DELETING THE ADDITION OF RS. 33,908/- MADE BY AO BY DISALLOWING INTEREST EXPENSES U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961. THE LD. CIT(A) HAS NOT APPRECIATED THE F ACT THAT THERE IS NOT QUESTION OF PAYMENT OF TDS WHEN THE ASSESSEE FAILED TO DEDUCT ANY TAX AT SOURCE. 5. THE MATTER IS FIXED FOR HEARING ON MERITS ON 23. 7.2018. THE PARTIES ARE AT LIBERTY TO FILE NECESSARY PAPER BOOK , IF ANY, ONE WEEK IN ADVANCE OF THE SCHEDULED DATE OF HEARING. IN THE RESULT, THE MISC. APPLICATION FILED BY THE REVENUE IS ALLOWED WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 08/06/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/06/2018 * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- INCOME TAX OFFICER,WARD-1(1), KOTA M.A. NO. 320/JP/2015 ITO, KOTA VS. M/S VASTUVEDIC COLONIZERS AND DEVELOP ERS PVT. LTD., KOTA 4 2. IZR;FKHZ@ THE RESPONDENT- M/S VASTUVEDIC COLONIZERS AND DEVELOPERS PVT. LTD., KOTA 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 57/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR