Sh. Aakash Tah, Chandigarh V. ACIT, Chandigarh

MA 77/CHANDI/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2762 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 29-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: AKASH TAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER M.A. NO. 77/CHD/2013 (IN ITA NO. 1025/CHD/2010) ASSESSMENT YEAR: 2006-07 SHRI AAKASH TAH, VS THE ACIT, CIRCLE 3(1), CHANDIGARH CHANDIGARH PAN NO.ADTPT2401Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AKASH TAH RESPONDENT BY : SHRI S.K. MITTAL DATE OF HEARING : 13.02.2015 DATE OF PRONOUNCEMENT : 13.03.2015 ORDER PER T.R.SOOD, A.M. THROUGH THIS MISC. APPLICATION THE ASSESSEE HAS SOU GHT RECTIFICATION OF AN ERROR WHICH HAS CREPT INTO THE ORDER OF TRIBUNAL IN ITA NO. 1025/CHD/2010. 2. SHRI AKASH TAH, THE ASSESSEE, APPEARED IN PERSON AND SUBMITTED THAT ASSESSING OFFICER HAD MADE ADDITION OF RS. 49,36,16 0/- U/S 40(A)(IA) OF THE ACT ON ACCOUNT OF NON DEDUCTION OF TAX ON ADVERTISING S ERVICES OBTAINED FROM M/S RAM ADVERTISING SERVICE WHICH WAS CHALLENGED BEFORE THE TRIBUNAL. HE REFERRED TO THE CONTENTIONS RAISED IN THE APPLICATION AND PO INTED OUT THAT VARIOUS LETTERS WERE WRITTEN TO ASSESSING OFFICER AND ASSESSING OFF ICER HAD NOT UNDERSTOOD THE MEANING OF LETTERS PROPERLY. HE FURTHER SUBMITTED T HAT TRIBUNAL HAS RECORDED A FINDING IN PARA 11 THAT BILLS FROM M/S RAM ADVERTI SING SERVICE WERE STATED TO BE NOT AVAILABLE IN THE PAPER BOOK AT THE TIME OF H EARING AND LD. COUNSEL HAD STATED THAT SUCH BILLS WERE NOT FILED EVEN BEFORE T HE ASSESSING OFFICER. THIS WAS 2 FACTUALLY WRONG BECAUSE BILLS WERE FILED BEFORE THE ASSESSING OFFICER, THEREFORE, CONCLUSION REACHED ON THE BASIS OF THIS FACT IS NO T CORRECT AND THIS IS AN ERROR WHICH HAS CREPT INTO THE ORDER OF TRIBUNAL AND THE SAME SHOULD BE RECTIFIED. HE ALSO ADMITTED THAT ASSESSEE HAS ALREADY FILED AN AP PEAL BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT AND THE ARGUMENTS ON AD MISSION ARE STILL PENDING. 3. ON THE OTHER HAND LD. DR STRONGLY SUPPORTED THE ORDER OF TRIBUNAL AND SUBMITTED THAT TRIBUNAL HAS NOT REACHED THE CONCLUS ION ON CONFIRMING THE ADDITION U/S 40(A)(IA) MERELY ON THE BASIS OF NON A VAILABILITY OF BILLS. THE TRIBUNAL HAS ALSO ANALYZED THE LEGAL POSITION BY RE FERRING TO THE PROVISION OF THE ACT AS WELL AS CIRCULAR NO. 715 AND OTHER FACTS IN VARIOUS PARAS. THEREFORE, THIS IS ONLY AN ATTEMPT FOR REVIEW OF THE ORDER BY TRIBU NAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND ARE UNABLE TO AGREE WITH THE SUBMISSION OF SHRI AKASH TAH, THE AS SESSEE. PARA 11 OF THE ORDER OF TRIBUNAL READS AS UNDER:- 11. NOW IN CASE BEFORE US, ASSESSEE HAD SHOWN PURC HASES OF ADVERTISING SERVICES AMOUNTING TO RS. 49,36,160. 81 FROM M/S RAM ADVERTISING SERVICE WITHOUT ANY DEDUCTION O F TAX. THE ASSESSEE HAS BOOKED ADVERTISEMENTS FOR VARIOUS CLIENTS. IT WAS VEHEMENTLY ARGUED THAT SINCE ASSESSEE WAS NO T AN ACCREDITED AGENT, THEREFORE, THE ADVERTISEMENT WAS ROUTED THROUGH M/S RAM ADVERTISING SERVICE. IT WAS EXPLAI NED THAT ACCREDITED AGENCY RECEIVES CREDIT FOR A PERIOD OF 6 0 DAYS I.E. WHY ADVERTISEMENT WAS ROUTED THROUGH AN ACCREDITED AGENCY I.E. M/S RAM ADVERTISING SERVICE AND NO ADVERTISEME NT WORK WAS DONE BY M/S RAM ADVERTISING SERVICE. HOWEVER, T O A POINTED QUERY, THE LD. COUNSEL ADMITTED THAT COPIES OF BILLS FROM RAM ADVERTISING SERVICE ARE NOT AVAILABLE IN T HE PAPER BOOK AND WERE NOT EVEN PRODUCED BEFORE THE ASSESSIN G OFFICER. THEREFORE, THERE IS NO EVIDENCE ON RECORD TO SHOW 3 THAT NO ADVERTISING WORK WAS DONE BY M/S RAM ADVERT ISING SERVICE. OTHERWISE ALSO, IT TRANSPIRES DURING THE HEARING THAT M/S RAM ADVERTISING SERVICE IS OWNED BY ASSESSEES SON AND THEREFORE, ASSESSEE SHOULD HAVE BEEN MORE CAREFUL T O ROUTE THE ADVERTISEMENT WORK THROUGH HIS SON AND OBTAIN P ROPER BILLS. THE ASSESSING OFFICER HAS CATEGORICALLY GIVE N A FINDING THAT AMOUNT WAS DEBITED AS PURCHASES FROM M/S RAM ADVERTISING SERVICE. ALTERNATIVELY IT IS THE SERVI CES WHICH CAN BE PURCHASED. 5. WE HAVE AGAIN VERIFIED THE PAPER BOOK AND FIND T HAT COPIES OF THE BILLS ARE NOT PLACED IN THE PAPER BOOK. IF THE COUNSEL DURING THE COURSE OF HEARING SUBMITS THAT THESE BILLS WERE NOT FILED EVEN BEFORE ASSESSI NG OFFICER TO A POINTED QUERY, THEN BLAME CANNOT BE SHIFTED TO THE BENCH FOR THE M ISTAKE OF THE COUNSEL. FURTHER, SINCE BILLS ARE NOT AVAILABLE AND THE BENC H HAS DISCUSSED THE ISSUE IN DETAIL FROM PARAS 9 TO 15 AND ALL ASPECTS OF THE IS SUE HAVE BEEN EXAMINED IN DETAIL, IN OUR OPINION, NO ERROR HAS CREPT INTO THE ORDER OF TRIBUNAL IN VIEW OF THIS DETAILED DISCUSSION. AT BEST, IT CANNOT BE SA ID THAT VIEW OF THE TRIBUNAL MAY NOT BE CORRECT BUT IN SUCH SITUATION TRIBUNAL HAS N O POWER TO REVIEW OF ITS ORDER AND THE COURSE OPEN TO ASSESSEE IS BY WAY OF AN APP EAL TO THE JURISDICTIONAL HIGH COURT. IT IS SETTLED LAW THAT TRIBUNAL HAS NO POWE R TO REVIEW ITS OWN ORDER. REFERENCE MAY BE MADE TO THE FOLLOWING CASE LAWS: CIT V SUNAM TEA & PLYWOOD INDUSTRIES (P) LTD 226 IT R 34, 44(CAL.) ITO VS ITAT 229 ITR 651, 656 (PAT.) CIT V K.L. BHATIA 182 ITR 361 (DEL) DEEKHHA SURI: DIVYA SURI: LALIT SURI : JYOTSNA SURI V ITA 232 ITR 395, 412-13(DEL) CIT V DR(MRS) KRISHNA RANA 167 ITR 652 (PAT.) ITO V ITAT (1987) 168 ITR 809 (RAJ.) UNION OF INDIA V ITAT 31 TAXMAN 385 (RAJ.) 4 IT WAS ADMITTED BEFORE US THAT ASSESSEE HAS ALREADY FILED AN APPEAL BEFORE THE JURISDICTIONAL HIGH COURT WHICH ITSELF SHOWS THAT A SSESSEE IS AGITATING THE MATTER BEFORE THE HON'BLE HIGH COURT AND, THEREFORE, THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL. THEREFORE, WE FIND THAT NO ERROR HA S CREPT IN THE ORDER IN ITA NO. 1025/CHD/2010 AND ACCORDINGLY MISC. APPLICATION IS DISMISSED. 6 IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2015 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 13 TH FEBRUARY,2015 RKK COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR