DCIT, Visakhapatnam V. S. Vijaya Kumar, Visakhapatnam

MA 61/VIZ/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2490 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 14-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: C V S MURTHY
• Section: 194C

Judgement Text

M.A. NO. 61 /VIZ/201 7 ( S. VIJAYA KUMAR ) 1 IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M.A.NO. 61/VIZ/201 7 ( ARISING OUT OF I . T .A.NO. 305 /VIZ / 201 6 ) ( ASSESSMENT YEAR : 20 07 - 08 ) D CIT , CIRCLE - 3 (1), VISAKHAPATNAM. VS. S. VIJAYA KUMAR, PROP. VIJAY NIRMAN C O . , 8 - 45/14/1, 4 TH LANE, VIDYA NAGAR, VISAKHAPATNAM. [ PAN: AJJPS 0703 L ] ( APP LICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI C.V.S. MURTHY - CA DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 26 / 1 0 /201 8 DATE OF P RONOUNCEMENT : 14 / 1 1 /201 8 O R D E R PER V. DURGA RAO , JUDICIAL MEMBER : BY THIS MISC. APPLICATION, REVENUE HAS PRAYED FOR RECALLING OF THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO. 305 /VIZ/201 6 , DATED 19 /0 4 /2017. 2 . THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE TRIBUNAL BY PASSING THE O RDER IN ITA NO. 305/VIZ/2016 FOR THE A.Y. 20 07 - 08 , DISMISSED THE APPEAL OF THE REVENUE BY FOLLOWING THE DECISION OF THE SPECIAL BENCH , ITAT, VISAKHAPATNAM IN MERILYN SHIPPING & TRANSPORTS VS. ACIT (136 ITR 23) AND OBSERVED THAT IN M.A. NO. 61 /VIZ/201 7 ( S. VIJAYA KUMAR ) 2 CASE WHERE PAYMENT IS ALR EADY MADE, NO DISALLOWANCE IS CALLED FOR UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT'). THE HON'BLE APEX COURT IN THE CASE OF PALAM GAS SERVICE VS CIT REPORTED IN [2017] 81 TAXMANN.COM 43 (SC) HAS HELD THAT SECTION 40(A)(IA) COVERS NOT ONLY THOSE CASES , WHERE THE PAYMENT IS PAYABLE, BUT ALSO PAID. THE HON'BLE APEX COURT FURTHER OBSERVED THAT SECTION 194C MANDATE A PERSON TO DEDUCT TAX AT SOURCE NOT ONLY ON THE AMOUNTS PAYABLE , BUT ALSO WHEN THE SUMS ARE ACTUA LLY PAID TO THE CONTRACTOR, ANY PERSON WHO DOES NOT ADHERE TO THIS STATUTORY OBLIGATION HAS TO SUFFER THE CONSEQUENCES WHICH ARE STIPULATED IN THE INCOME TAX ACT, 1961 . 3 . WE HAVE H EARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD . 4 . WE FIND THAT THE HON'BLE SUPREME COURT IN THE CASE OF PALAM GAS SERVICE (SUPRA) HAS CLEARLY HELD THAT SECTION 40(A)(IA) COVERS NOT ONLY THOSE CASES WHERE THE AMOUNT IS PAYABLE BUT ALSO WHEN IT IS PAID. T HEREFORE, RESPECTFULLY FOLLOWING THE DE CISION OF THE HON'BLE SUPREME COURT IN THE ABOVE REFERRED TO CASE, WE FIND THAT THE ORDER PASSED BY TH IS TRIBUNAL IN ITA NO. 305/VIZ/2016 , BY ORDER DATED 19/04/2017 HAS TO BE RECALLED. ACCORDINGLY, IT IS RECALLED AND POSTED FOR HEARING ON 29/01/2019. SINCE THE DATE OF HEARING IS M.A. NO. 61 /VIZ/201 7 ( S. VIJAYA KUMAR ) 3 ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES, NO SEPARATE NOTICE IS REQUIRED TO BE ISSUED. O RDER PRONOUNCED IN THE OPEN COURT ON 1 4 TH N OVE MBER , 201 8 ( D.S. SUNDER SINGH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 / 1 1/201 8 VR /SPS COPY OF THE ORDER FORWARDED TO : - 1. THE APPELLANT S. VIJAYA KUMAR, PROP. VIJAY NIRMAN CO., 8 - 45/14/1, 4 TH LANE, VIDYA NAGAR, VISAK HAPATNAM. 2. THE RESPONDENT D CIT, CIRCE - 3 (1), VISAKHAPATNAM . 3. THE PR. CIT - 1 , VISAKHAPATNAM. 4. THE CIT(A) - 1 , VISAKHAPATNAM. 5 . DR, ITAT, VISAKHAPATNAM 6 . GUARD FILE BY ORDER // TRUE COPY // SR.PRIVATE SECRETARY ITAT, VISAKHAPATNAM