Cafe D Lake Private Limited , Hyderabad V. Income Tax Officer, Ward-1(4), Hyderabad

MA 61/Hyd/2021

AI Insights

The case involves M/s. Café D Lake Private Limited, which filed a Miscellaneous Application against an order passed by the Income Tax Appellate Tribunal concerning the assessment year 2015-16. The application sought to recall the Tribunal's earlier order, claiming that certain grounds related to disallowances under sections 36(1)(va) and 40(a)(ia) of the Income Tax Act were not properly adjudicated. The Tribunal had previously discussed the disallowance under section 36(1)(va) in detail but found that the issue regarding section 40(a)(ia), which pertains to non-deduction of TDS, was not adequately addressed as the CIT(A) had mistakenly indicated relief which was not substantiated by the records.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133312 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 16-02-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 25-08-2021
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; FORM 26AS
• Section: 40(a)(ia); 201(1); 201

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER वि.आिे.सं / M.A. No. 61/Hyd/2021 (Arising out of ITA No. 237/Hyd/2019) (निर्धारण िर्ा / Assessment Year: 2015-16) M/s. Café D Lake Private Limited, Hyderabad [PAN : AACCC2044F] Vs Income Tax Officer, Ward-1(4), Hyderabad (आिेदक / Applicant) (प्रत् यर्थी / Respondent) निर्धाररती द्िधरध / Assessee by: Shri P. Murali Mohan Rao, AR रधजस् ि द्िधरध / Revenue by: Shri Kumar Aditya, DR स ु ििधई की तधरीख/Date of hearing: 17/02/2023 घोर्णध की तधरीख/Pronouncement on: 06/03/2023 आदेश / ORDER PER K. NARASIMHA CHARY, JM: This Miscellaneous Application is filed with a prayer to recall the order dated 03/02/2021 passed in ITA No. 237/Hyd/2019 on the plea that the grounds pleaded therein were not properly adjudicated while disposing of the matter. 2. Learned AR submitted that grounds No. 1 to 8 relate to the addition on account of disallowance under section 36(1)(va) of the Income Tax Act, MA No. 61/Hyd/2021 Page 2 of 4 1961 (for short “the Act”) and the other grounds relate to the disallowance under section 40(a)(ia) of the Act, but the Tribunal did not cause sufficient enquiry of facts in respect of grounds No. 1 to 8 and went on a wrong presumption in respect of other grounds. 3. Per contra, it is the submission of the learned DR that the Tribunal dealt with both the issues in an elaborate manner and the grievance if any, is entertained by the assessee the only remedy is to work it out before the higher forums. 4. We have gone through the record in the light of the submissions made on either side. Insofar as the disallowance under section 36(1)(va) of the Act, in respect of the PF and ESI contribution, there is an elaborate discussion in the order of the Tribunal vide paragraphs No. 6 to 11 and various provisions and judicial pronouncements in respect there of were considered in detail and it is not possible to accept that there was no sufficient enquiry on this aspect. This contention is rejected. 5. Now coming to the other grounds in respect of the disallowance under section 40(a)(ia) of the Act are concerned, the Tribunal observed that this disallowance was deleted by the learned CIT(A). However, it could be seen from paragraph No. 7.2 and 7.3 of the order of learned CIT(A), the thing are otherwise. For the sake of completeness we extract hereunder the relevant paragraphs: “7.2. Before me, the appellant submitted that the Assessing Officer has made an addition u/s. 40(a)(ia), when the proceedings have not been initiated against the assessee u/s. 201(1) and even when the assessee is not deemed as default in terms of Section 201 of the Act. As per the provisions of Section 40(a)(ia), if an assessee fails to deduct or pay tax then he should be assessed u/s. 201(1) in terms of Chapter XVIIB of the act. Whereas in the present case, the Assessing officer has not treated the assessee as assessee in default u/s. 201(1) and no proceedings were initiated accordingly. Hence, MA No. 61/Hyd/2021 Page 3 of 4 the disallowance made is not according to law and liable to be deleted. 7.3. The submissions of the appellant have been carefully considered. The appellant has not submitted Form 26AS regarding deduction of TDS. The appellant before me neither appeared nor submitted any evidence to substantiate that the TDS was deducted on Rs. 7,02,910/-. In absence of any documentary evidence, the addition made by the Assessing Officer is upheld. 8. In the result, the appeal is DISMISSED.” 6. It is, therefore, clear that though the learned CIT(A) appears to have stated that the impugned disallowance was liable to be deleted, but as a matter of fact on the grounds that the assessee did not submit Form 26AS regarding the deduction of TDS, she upheld the disallowance. Further, the result portion of the appellate order states that the entire appeal is dismissed. On this aspect, we agree with the learned AR that the adjudication of this ground missed the attention of the Bench on the premise that the learned CIT(A) granted relief. 7. We, accordingly, for the limited purpose of adjudication of grounds relating to the disallowance under section 40(a)(ia) of the Act, restore the appeal for hearing. Registry is directed to fix the appeal for hearing on grounds relating to the disallowance under section 40(a)(ia) of the Act. 8. In the result, Miscellaneous Application is allowed. Order pronounced in the open court on this the 6 th day of March, 2023. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 06/03/2023 TNMM MA No. 61/Hyd/2021 Page 4 of 4 Copy forwarded to: 1. Café D Lake Private Limited, C/o. P. Murali & Co., Chartered Accountants, 6-3-655/2/3, Somajiguda, Hyderabad 2. Income Tax Officer, Ward-1(4), Hyderabad 3. The Pr.CIT-1, Hyderabad. 4. DR, ITAT, Hyderabad. 5. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD