C.G.Lucy Switchgear Ltd, Nashik V. Jt. CIT R-2 Nashik, Nashik

MA 61/PUN/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9534 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 01-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: PRADEEP KAPSI
• Section: 194C; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI R.S.PADVEKAR, JUDICIAL MEMBER AND SHRI. R.K. PANDA, ACCOUNTAT MEMBER M.A. NO. 61/PN/2012 (ARISING OUT OF ITA NO. 1481/PN/2009) (ASSTT. YEAR : 2 006-07) M/S. C.G. LUCY SWITCHGEAR LTD., APPLICANT F-19 MIDC AMBAD, NASIK 422 010 PAN AAACC 9268 P V. JT. CIT R-2 NASIK RESPONDENT APPLICANT BY : SHRI PRADEEP KAPSI RESPONDENT BY : SHRI S .K. SINGH DATE OF HEARING : 16/11/ 12 DATE OF PRONOUNCEMENT : 16-11-12 O R D E R PER R.S. PADVEKAR, JM THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE STATING THAT THE ASSESSEES ASSESSMENT FOR THE A.Y. 2006-07 WAS COMPLETED BY THE A.O. VIDE ASSESSMENT ORDER DATED 31.12.2008 IN WHIC H THE DISALLOWANCE U/S. 40(A)(IA) OF THE ACT TO THE EXTENT OF RS. 7,05 ,24,601/- WAS MADE. THE ASSESSEE PREFERRED THE APPEAL BEFORE THE LD CI T(A), WHO CONFIRMED THE DISALLOWANCE. THE ASSESSEE FILED THE APPEAL BE FORE THE ITAT, PUNE BEING ITA NO. 1481/PN/2009 WHICH WAS DISPOSED OF VI DE ORDER DATED 30 TH AUGUST 2010. IT IS FURTHER STATED THAT THE TRIBUNA L PARTLY ALLOWED THE ADDITION TO THE EXTENT OF RS. 5,89,64,857/-. IN RES PECT OF THE BALANCE AMOUNT OF RS. 1,15,59,744/-, THE HONBLE TRIBUNAL SET ASIDE THE MATTER TO THE FILE OF THE A.O. TO EXAMINE THE FACTS OF TH E CASE AND VERIFY WHETHER THE TRANSACTIONS REPRESENTING THE SAID AMOUNT ARE I N THE NATURE OF CONTRACT OF SALE AND WHETHER THE SAID AMOUNT WAS PA ID BEFORE THE YEAR- END. THE TRIBUNAL ALSO DIRECTED THE A.O TO TAKE IN TO ACCOUNT THE DECISION IN ASSESSEES OWN CASE FOR THE A.Y. 2005-06 AND THE DECISION OF THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF JAIPUR VIDYUT NIGAM LTD., 123 TTJ 888 WHILE DECIDING ON THE ISSUE. 2. IN PURSUANCE OF THE ORDER OF THE TRIBUNAL, THE A .O. PASSED AN ORDER DATED 30 TH DECEMBER 2011 AND HELD THAT THE TRANSACTIONS REPRE SENTING 2 M.A. NO.61/PN/2012 M/S. C.G. LUCY SWITCHGEAR LTD. A.Y.2006-07 THE AMOUNT OF RS. 1,15,59,744/- ARE IN NATURE OF WO RKS CONTRACT LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S. 194C OF THE ACT. H E ALSO HELD THAT PROVISIONS OF SEC. 40(A)(IA) ARE APPLICABLE TO THE CASE OF THE ASSESSEE. IT IS FURTHER STATED IN THE APPLICATION THAT THE A .O FAILED TO CARRY OUT THE CLEAR DIRECTIONS OF THE HONBLE TRIBUNAL GIVEN IN ITS ORDER WHICH AMOUNT TO GROSS CONTEMPT OF THE TRIBUNAL. THE ASSESSEE HAS R ELIED ON THE FOLLOWING DECISIONS : (I) AJAY GANDHI VS. B. SINGH, 265 ITR 451 (SC) (II) ITAT VS. V.K. AGARWAL, 235 ITR 175 (SC) (III) AGARWAL WAREHOUSING AND LEASING LTD., 257 ITR 235 ( MP) (IV) VOEST-ALPINE IND. GMBH VS. ITO & ORS., 246 ITR 745 (CAL.) (V) KAMALAKSHI FINANCE CORPORATION LTD. AIR 1992 SC 711 (VI) ITO VS. SIEMENS INDIA LTD., 156 ITR 11 (BOM.) FINALLY, IT IS PLEADED THAT THE PENAL ACTION BE TAK EN AGAINST THE A.O FOR CONTEMPT OF THE COURT AND THE A.O. BE DIRECTED TO G IVE THE APPROPRIATE RELIEF. 3. WE HAVE HEARD THE PARTIES. THE GRIEVANCE OF THE ASSESSEE IS AGAINST THE A.O FOR NOT COMPLYING TO THE DIRECTIONS OF THE TRIBUNAL. ADMITTEDLY, THE MATTER IS NOT PENDING IN THE TRIBU NAL AND THE TRIBUNAL IS FUNCTIOUS OFFICIO. NO ACTION CAN BE TAKEN U/S. 2 54 OF THE ACT AND THE ASSESSEE HAS TO RESORT TO PROPER PROCEEDINGS. AT LEAST AT THIS STAGE, WE ARE UNABLE TO HELP THE ASSESSEE. HENCE, EVEN IF TH E CHARGE IS SERIOUS ONE, BUT WE HAVE NO OPTION BUT TO DISMISS THE APPLI CATION FILED BY THE ASSESSEE. 4. IN THE RESULT, ASSESSEES APPLICATION IS DISMISS ED. THE ORDER IS PRONOUNCED IN THE OPEN COURT AFTER CON CLUSION OF HEARING ON 16/11/2012. SD/- SD/- (R.K.PANDA) ACCOUNTANT MEMBER (R.S.PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 16TH NOVEMBER, 2012 US 3 M.A. NO.61/PN/2012 M/S. C.G. LUCY SWITCHGEAR LTD. A.Y.2006-07 COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT -I, NASIK 4. THE CIT(A)- II, NASIK 5. THE D.R. B BENCH, PUNE 6. GUARD FILE /- TRUE COPY-/ BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE