IQBAL M. SAIYED, V. DCIT 22(3),

MA 754/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0301 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2005-2006
• Appeal Filed On: 14-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I MUMBAI . . , / , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI RAJENDRA, ACCOUNTANT MEMBER MA NO. 753/MUM/2012 (ARISING OUT OF ITA NO. 2576/MUM/2009) ASSESSMENT YEAR 2005-06 MA NO. 754/MUM/2012 (ARISING OUT OF C.O.NO. 201/MUM/2009) ASSESSMENT YEAR 2005-06 MA NO. 755/MUM/2012 (ARISING OUT OF ITA NO. 2619/MUM/2010) ASSESSMENT YEAR 2006-07 MA NO. 756/MUM/2012 (ARISING OUT OF C.O.NO. 145/MUM/2011) ASSESSMENT YEAR 2006-07 IQBAL M. SAIYED, 416, B. PERSIPOLIS, PLOT NO. 74, SECTOR-17, VASHI, NAVI MUMBAI 400 703 VS. DY. COMMISSIONER OF INCOME TAX, 22(3)-3, MUMBAI. PAN: AMZPS 2897 Q (APPLICANT) (RESPONDEN T) APPLICANT BY : MS. RITIKA AGARWAL RESPONDENT BY : SHRI RAJARSHI DWIVEDY ! / DATE OF HEARING : 12-04-2013 '#$ ! / DATE OF PRONOUNCEMENT : 17-04-2013 % / O R D E R PER RAJENDRA, A.M. VIDE HIS MISCELLANEOUS APPLICATION (MA) DT. 14-12-2 012 ASSESSEE HAS SUBMITTED CERTAIN MISTAKES WERE APPARENT FROM THE R ECORDS IN THE ORDER PASSED BY THE TRIBUNAL ON 21-11-2012, THAT SAME ARE TO BE RECTIFI ED AS PER THE PROVISIONS OF SEC. 254(2) OF THE INCOME TAX ACT, 1961 (ACT). MA NOS. 753 754 755 756/MUM/2012 2 FACTS OF THE CASE: 2. IN THIS CASE, APPEALS AND CROSS OBJECTIONS (COS) WE RE FILED BY THE AO AND THE ASSESSEE FOR THE AY. 2005-06 AND 2006-07 (ITA NOS. 2776/MUM/2009 AND 2619/MUM/2010 C.O. NO. 201/MUM/2009 FOR THE AY. 200 5-06 AND C.O. NO. 145/MUM/2011 FOR THE AY. 2006-07). ALL THE FOUR MA TTERS WERE CONSOLIDATED AND HEARD TOGETHER ON 12-11-2012 A COMMON ORDER WAS PAS SED ON 21-11-2012. 3. ONE OF THE ISSUES IN THE APPEAL FILED BY THE AO FO R THE AY. 2005-06 WAS ABOUT LABOUR CHARGES. SIMILAR ISSUE WAS RAISED BY THE AS SESSEE IN C.O.NO. 201/MUM/2009 ALSO. WE FIND THAT WHILE DECIDING THE ISSUE IN THE APPEAL FILED BY THE AO, WE HAVE RESTORED BACK THE MATTER TO THE FILE OF THE FAA VID E OUR ORDER (PARA NO. 5.1 PG.5) DT. 21-11-2012. IT IS BROUGHT TO OUR NOTICE THAT WHILE DECIDING ISSUE NO.6 OF THE C.O., WHICH DEALT WITH THE ISSUE OF LABOUR CHARGES, WE HA D RESTORED THE MATTER TO THE FILE OF THE AO BY OBSERVING AS UNDER: GROUND NO. 6 IS ABOUT LABOUR CHARGES. WE HAVE ALRE ADY RESTORED THE MATTER TO THE FILE OF THE AO, WHILE DEALING WITH THE GROUND NO.3 RAISED I N THE APPEAL OF THE REVENUE, THEREFORE NO SEPARATE ORDER IS PASSED FOR GROUND NO.6 OF THE CRO SS OBJECTIONS. AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT IN PA RA NO. 5.1 OF THE ORDER, MATTER WAS NOT RESTORED BACK TO THE FILE OF THE AO, BUT TH E FILE OF THE FAA, THAT OBSERVATIONS MADE AT PARA NO. 11 WERE MISTAKE APPARENT FROM THE RECORD, THAT SAME SHOULD BE RECTIFIED. AFTER PERUSING THE ORDER DT. 21-11-2012, WE ARE OF THE OPINION THAT THERE IS MISTAKE IN PARA NO. 11 OF PG. 6. THEREFORE, RECTIFYING THE SA ID MISTAKE, WE ORDER THAT SAID PARAGRAPH (I.E., PARA NO. 11 PG. 6) SHOULD BE READ AS UNDER: GROUND NO. 6 IS ABOUT LABOUR CHARGES. WE HAVE ALR EADY RESTORED THE MATTER TO THE FILE OF THE FAA, WHILE DEALING WITH THE GROUND NO.3 RAISED IN THE APPEAL OF THE REVENUE, THEREFORE NO SEPARATE ORDER IS PASSED FOR GROUND NO.6 OF THE CROSS OBJECTIONS. SUBMISSION MADE BY THE ASSESSEE STANDS ALLOWED. 4. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAD FILED A DDITIONAL GROUND OF APPEAL ON 03- 08-2011 UNDER RULE11 OF THE ITAT RULES, 1963, THAT ADDITIONAL GROUNDS OF APPEAL WERE LEGAL IN NATURE, THAT SAME WERE NOT ADJUDICATE D UPON WHILE PASSING ORDER ON 21- 11-2012. WE HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ASSESSEE VIDE HIS LETTER DT. 03-08-2011 HAD RAISED THE FOLLO WING ADDITIONAL GROUNDS OF APPEAL FOR THE AY. 2005-06: BECAUSE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING THE DISALLOWANCE BY INVOKING SECTION 40(A)(IA) OF THE INCOME-TAX ACT , 1961 MADE BY THE LD AO OF RS. 48,57,997/- WHICH IS PURELY IN NATURE OF PAY MENT MADE TO VARIOUS LABOURERS THROUGH MUKADAMS, IGNORING THAT THE APPEL LANT HAD NO LIABILITY TO DEDUCT TDS U/S. 194C OF THE ACT ON SUCH EXPENSES WH ICH HAS BEEN ACCEPTED BY LD. CIT(A) IN SUBSEQUENT YEARS FOR AY. 2006-07 AND AY. 2007-08. BECAUSE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ABOVE DISALLOWANCE IGNORING THE FACT THAT OUT OF TOTAL EX PENSES OF RS. 48,57,997/- MA NOS. 753 754 755 756/MUM/2012 3 APPELLANT HAS ALREADY PAID RS. 37,42,885/- AND ONLY RS. 11,91,729/- IS PAYABLE AT THE YEAR END. 5. WE FIND THAT ABOVE GROUNDS OF APPEAL REMAINED UN-A DJUDICATED. IT IS FOUND THAT IN THIS REGARD, NO ORDER IS AVAILABLE ON THE FILE AS W HETHER THE GROUNDS OF APPEAL WERE ADMITTED OR NOT. IN OUR OPINION, BEFORE PASSING TH E ORDER ON 12-11-2012, DECISION ABOUT ADMISSIBILITY OF THESE GROUND HAD TO BE TAKEN . RECTIFYING OUR ORDER, WE FIX THE MATTER ON 31-05-2013 FOR HEARING TO DECIDE THE ADMI SSION/REJECTION OF ADDITIONAL GROUNDS OF APPEAL FILED BY THE ASSESSEE ON 03-08-20 11. OUR ORDER IS RECALLED TO THIS LIMITED EXTENT. AS A RESULT, MAS FILED BY THE ASSESSEE S TAND PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL, 2013 % '#$ ' ( 17 )*,2013 # 0 1 SD/- SD/- ( . . / I.P. BANSAL ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, ( / DATE: 17 TH APRIL, 2013 TNMM % % % % ) 2 ) 2 ) 2 ) 2 32$ 32$ 32$ 32$ / COPY OF THE ORDER FORWARDED TO : 1. APPL IC ANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR I BENCH, ITAT, MUMBAI 6. GUARD FILE 42 ) //TRUE COPY// % % % % / BY ORDER, 5 55 5 / 6 6 6 6 DY./ASST. REGISTRAR , / ITAT, MUMBAI