ShriI Shripad S Bapat, Pune V. ITO, Pune

MA 87/PUN/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9185 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 06-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Assessee Lawyers: S N DOSHI

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER MA NO. 86/PN/2012 AND MA NO.87/PN/2012 (ARISING OUT OF ITA NOS. 547/PN/2010 AND 548/PN/201 0 (ASSESSMENT YEARS 2005-06 AND 2006-07) SHRIPAD SHRIDHAR BAPAT, FLAT NO.4, VASTUSHRI APARTMENTS, SINHAGAD ROAD,PUNE 411 051 .. APPLICANT PAN NO.AFVPB 1636D VS. ITO WARD 1 (3), PUNE .. RESPONDENT APPLICANT BY : SRI S.N. DOSHI DEPARTMENT BY : SMT. VINITA MENON DATE OF HEARING : 21-09-2012 DATE OF PRONOUNCEMENT : 27-09-2012 ORDER PER R.K. PANDA, AM : THE ASSESSEE THROUGH THE ABOVE MISCELLANEOUS APPLIC ATIONS REQUESTS THE TRIBUNAL TO RECALL THE ORDER OF THE TRIBUNAL FOR TH E LIMITED PURPOSE OF ADJUDICATING THE REGULAR GROUNDS TAKEN IN THE GROUNDS OF APPEAL. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING T O THE CONSOLIDATED ORDER OF THE TRIBUNAL SUBMITTED THAT THE TRIBUNAL HAS BEEN K IND ENOUGH IN ALLOWING THE ADDITIONAL GROUND AND ALLOWED THE APPEAL PARTLY. H OWEVER, WHILE ADJUDICATING THE APPEAL THE TRIBUNAL NEITHER DISCUSSED NOR ADJUDICAT ED THE REGULAR GROUND OF THE ASSESSEE IN WHICH IT WAS CHALLENGED THAT THE ASSESS EE CANNOT BE CONSIDERED AS A PERSON LIABLE TO DEDUCT THE TAX WITHIN THE MEANING OF SECTION 194C. HE SUBMITTED THAT ALTHOUGH ELABORATE SUBMISSIONS WERE MADE WHILE ARGUING THIS APPEAL ON THE GROUND THAT THE ASSESSEE BEING THE SUB CONTRACTOR A ND NOT A CONTRACTOR FOR WHICH NEITHER THE PROVISIONS OF SECTION 194C(1) NOR THE P ROVISIONS OF SECTION 194C(2) CAN BE ATTRACTED. HOWEVER, THE TRIBUNAL INADVERTENTLY HAS OMITTED TO ADJUDICATE THE 2 SAME. THIS BEING AN APPARENT MISTAKE FROM THE ORDE R OF THE TRIBUNAL, THEREFORE, THE SAME SHOULD BE RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING THE GROUND OF APPEAL NO. 1 BY THE ASSESSEE. THE LEARNED DR ON TH E OTHER HAND SUPPORTED THE ORDER OF THE TRIBUNAL. 3. WE HAVE CONSIDERED RIVAL ARGUMENTS MADE BY BOTH THE SIDES. WE FIND THE ASSESSEE IN THE GROUNDS OF APPEAL NO.2 HAS TAKEN TH E FOLLOWING GROUND IN ITA NO.547/PN/2010 FOR A.Y. 2005-06 : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUND THE CIT(A) HAS ERRED IN SUSTAINING THE DISAL LOWANCE OF RS.26,80,857/- MADE U/S.40(A)(IA) OVERLOOKING THE FACT THAT THE APPELLA NT CANNOT BE CONSIDERED AS PERSON LIABLE TO DEDUCT THE TAX U/S.194C. SIMILARLY THE ASSESSEE HAS ALSO TAKEN THE FOLLOWING GROUND IN ITA NO.548/PN/2010 FOR A.Y. 2006-07 : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO THE ABOVE GROUND THE CIT(A) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF RS.50,99,998/- MADE U/S.40(A)(IA) OVERLOOKING THE FACT THAT THE APPELLANT CANNOT BE CONSIDERED AS PERSON LIABLE TO DEDUCT THE TAX U/S.194C. 4. WHILE ADJUDICATING THE APPEAL THE TRIBUNAL HAS C ONFINED THE DECISION ONLY ON THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND PA RTLY ALLOWED THE APPEAL OF THE ASSESSEE AND HAS NEITHER DISCUSSED THE ARGUMENTS AD VANCED BY THE ASSESSEE NOR ADJUDICATED THE ABOVE GROUND. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL. WE , THEREFORE, RECALL THE ORDER OF THE TRIBUNAL FOR THE LIMITED PURPOSE OF DECIDING THE AB OVE GROUNDS RAISED BY THE ASSESSEE IN THE RESPECTIVE APPEALS 5. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF SEPTEMBER 2012 SD/- SD /- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: THE 27 TH SEPTEMBER 2012 SATISH 3 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, PUNE 4. THE D.R, B PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE