ASST CIT 2(3), V. TATA ASSET MANAGEMENT LTD,

MA 694/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0655 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2006-2007
• Appeal Filed On: 20-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Keywords: Non-deduction of tax

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO. 694/MUM/2012 (ARISING OUT OF ITA NO. 5844/MUM/2010) (ASSESSMENT YEAR: 2006-07) A C I T - 2(3) M/S. TATA ASSET MANAGEMENT LTD. ROOM NO. 552, 5TH FLOOR 9TH FLOOR, MAFATLAL CENTRE AAYAKAR BHAVAN, M.K. ROAD VS. NARIMAN POINT, MUMBAI 400021 MUMBAI 400020 PAN - AAACT1458L APPELLANT RESPONDENT APPELLANT BY: SHRI O.P. MEENA RESPONDENT BY: SHRI NIRAJ SHETH DATE OF HEARING: 07.06.2013 DATE OF PRONOUNCEMENT: 14.06.2013 O R D E R PER D. MANMOHAN, V.P. BY THIS APPLICATION THE REVENUE SEEKS MODIFICATION OF THE ORDER DATED 20 TH JUNE, 2012 ON THE GROUND THAT THE ORDER GIVES RISE TO MISTAKE APPARENT ON RECORD. 2. AS COULD BE NOTICED FROM THE MISCELLANEOUS APPLICAT ION IT ARISES OUT OF THE ORDER PASSED IN ITA NO. 5844/MUM/2010. HOWEVER, IN THE LAST PARA OF THE MISCELLANEOUS APPLICATION THE REVENUE SEEKS MOD IFICATION OF THE DECISION DATED 20.04.2012 IN ITA NO. 3035/MUM/2009 WHICH ITSELF SHOWS THAT THERE IS A CONFUSION IN THE MIND OF THE AO WIT H REGARD TO THE ORDER ON WHICH RECTIFICATION IS SOUGHT. BE THAT AS IT MAY, S INCE BOTH THE PARTIES ADMITTED THAT THIS MISCELLANEOUS APPLICATION WAS FI LED AGAINST THE ORDER PASSED BY THE ITAT IN ITA NO. 5844/MUM/2010, WHICH IN TURN PERTAINS TO A.Y. 2006-07, WE PROCEED TO DISPOSE OF THE MISCELLA NEOUS APPLICATION ACCORDINGLY. MA NO. 694/MUM/2012 M/S. TATA ASSET MANAGEMENT LTD. 2 3. ASSESSEE DEBITED AN AMOUNT OF ` 5.92 CRORES TOWARDS REIMBURSEMENT OF BROKERAGE WITHOUT TDS. THE AO INVOKED PROVISIONS OF SECTION 40(A)(IA) OF THE ACT FOR DISALLOWING THE CLAIM OF DEDUCTION OF BROKE RAGE AMOUNT. THE LEARNED CIT(A) AS WELL AS THE ITAT SET ASIDE THE DISALLOWAN CE ON THE GROUND THAT SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE FOR A.Y. 2007-08. HOWEVER, IN THE OPINION OF THE AO THE DISA LLOWANCE UNDER SECTION 40(A)(IA) WAS NOT MADE IN A.Y. 2007-08 AND CONSEQUE NTLY NO SUCH RELIEF WAS GRANTED BY THE ITAT. THEREFORE, RELIANCE UPON THE O RDER OF THE ITAT IN THE APPEAL FOR A.Y. 2007-08 GIVES RISE TO MISTAKE APPAR ENT ON RECORD. 4. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE ADVERTED OUR ATTENTION TO THE ORDER PASSED BY THE CIT(A) IN RESPECT OF A.Y. 2006-07 TO POINT OUT THAT IN A.Y. 2007-08, ALTHOUGH SIMILAR IS SUE REGARDING NON- DEDUCTION OF TAX WAS RAISED, NO DISALLOWANCE ON BRO KERAGE EXPENSES WAS MADE ON THE GROUND OF NON-DEDUCTION OF TAX AT SOURC E. IN OTHER WORDS, THE DISALLOWANCE IN A.Y. 2007-08 WAS MADE ONLY ON THE G ROUND THAT THE JUDICIAL PRECEDENTS RELIED UPON BY THE ASSESSEE WERE NOT ACC EPTABLE TO THE DEPARTMENT. THE LEARNED CIT(A) OBSERVED THAT IN RES PECT OF BROKERAGE PAID TO DISTRIBUTORS PROVISIONS OF SECTION 194H DID NOT APPLY AND THE AO NOWHERE CHALLENGED THE FACT THAT THE PAYMENTS MADE BY THE A SSESSEE ARE ONLY TOWARDS REIMBURSEMENT OF BROKERAGE EXPENSES AND ON SUCH REIMBURSEMENT TAX HAS TO BE DEDUCTED UNDER THE PROVISIONS OF LAW. IT WAS ALSO OBSERVED THAT APART FROM THE FACT THAT PROVISIONS RELATED TO TDS ARE NOT APPLICABLE, THE DISALLOWANCE OF BROKERAGE EXPENSES MADE IN A.Y. 200 7-08 (FOR REASONS OTHER THAN NON-DEDUCTION OF TAX) WAS DELETED AND EVEN ON THAT GROUND THE ADDITION HEREIN WAS DELETED. THE TRIBUNAL FOLLOWED THE SAME REASONING. IT IS THUS SEEN THAT THE TRIBUNAL HAS NOWHERE SPECIFIED T HAT IN THE ORDER OF THE ITAT FOR A.Y. 2007-08 THE ISSUE OF TAX DEDUCTIBLE A T SOURCE WAS OF PRIME CONSIDERATION. ON THE OTHER HAND, THE REASONS GIVEN BY THE LEARNED CIT(A) WITH REGARD TO NON-APPLICABILITY OF TDS PROVISIONS WAS ACCEPTED BY THE ITAT. UNDER THESE CIRCUMSTANCES WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE REVENUE. IN OTHER WORDS, THE ORDER PASSED BY THE IT AT DID NOT SUFFER FROM ANY MISTAKE APPARENT ON RECORD. MA NO. 694/MUM/2012 M/S. TATA ASSET MANAGEMENT LTD. 3 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2013. SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 14 TH JUNE, 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 6, MUMBAI 4. THE CIT 2, MUMBAI CITY 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.