Mukesh Travels Company, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

MA 95/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9592 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 09-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , !', #$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER MA NO.95/AHD/2012 [ ARISING OUT OF ITA NO.2594/AHD/2010] ( & & & & / / / / ASSESSMENT YEAR : 2007-08) MUKESH TRAVELS COMPANY 160, NEW CLOTH MARKET RAIPUR GATE AHMEDABAD / VS. THE ITO WARD-9(4) AHMEDABAD ( #$ ./*+ ./ PAN/GIR NO. : AAEFM 8507 A ( (, / // / APPLICANT ) .. ( -.(, / RESPONDENT ) (, / # / APPLICANT BY : SHRI TEJ SHAH -.(, 0 / # / RESPONDENT BY : SHRI D.K.SINGH, SR. D.R. 1 0 '$ / / / / DATE OF HEARING : 21/09/2012 23& 0 '$ / DATE OF PRONOUNCEMENT : 14/12/12 #4/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS PETITION FILED ON 09. 05.201, THE PETITIONER HAS RAISED THE FOLLOWING OBJECTIONS STATED TO BE TH E MISTAKE APPARENT; REPRODUCED BELOW:- 1. THE HONBLE TRIBUNAL IN PARA 6 OF ITS ORDER HE LD THAT THE DECISION OF THE HON'BLE ITAT VISHAKHAPATNAM BENCH (2010) 1 I TR 290 CITED BY THE LD. AR OF THE ASSESSEE IS NOT APPLICABLE BECAUS E THE INVOLVEMENT OF OTHER LORRY OWNERS IN CARRYING OUT THE WORK UNDERTA KEN BY THE APPELLANT WAS NOT FOUND. HOWEVER, THE TRIBUNAL FAILED TO ADJ UDICATE ON THE DECISION OF THE HON'BLE HP HIGH COURT IN THE CASE O F AMBUJA DARLA KASHLOG MANGU TRANSPORT CO-OP. SOCIETY CITED BY THE APPELLANT. IT WAS HELD IN THAT DECISION THAT EVEN IF THE PAYEES TO WH OM THE AMOUNT HAS BEEN PAID HAVE CARRIED ON WORK WITHIN THE MEANING OF S. 194C, IN ABSENCE OF THERE BEING A SUB-CONTRACT, NO TAX IS LI ABLE TO BE DEDUCTED. NON ADJUDICATION ON THE DECISION CITED BY THE APPEL LANT BY THE HONBLE MA NO.95/AHD/2012 ( OUT OF ITA NO.2594/AHD/2010 ) MUKESH TRAVELS COMPANY VS. ITO ASST.YEAR - 2007-08 - 2 - TRIBUNAL WHICH WOULD CHANGE THE NATURE OF THE CASE, AMOUNTS TO A MISTAKE APPARENT ON RECORD AND HENCE NEEDS TO BE RE CTIFIED. 2. THE HONBLE TRIBUNAL IN PARA 6 FAILED TO PROP ERLY ADJUDICATE ON THE DECISION OF THE HON'BLE HYD BENCH IN THE CASE OF TE JA CONSTRUCTIONS. THE HONBLE TRIBUNAL DID NOT CONSIDER THE RATIO LAI D DOWN IN THE ABOVE CASE THAT DISALLOWANCE U/S.40(A)(IA) CAN BE MADE ON LY IF THE PAYMENTS ARE MADE U/S.30 TO 38 OF THE ACT. IN THE PRESENT C ASE, THE APPELLANT AHS RECEIVED AMOUNTS FROM THE INSTITUTE OF PLASMA RESEA RCH AND ALSO FROM OTHER PERSONS. WHENEVER THE APPELLANT DID NOT HAVE ITS OWN VEHICLES, IT TOOK ON HIRE THE VEHICLES FROM OTHER VEHICLE OWNERS AND FULFILLED ITS CONTRACT FOR TRANSPORT OF PASSENGERS. THEREFORE SU CH HIRE CHARGES PAID ARE IN NATURE OF PURCHASES WHICH IS ALLOWABLE U/S.2 8 AND NOT UNDER SEC.30 TO 38 OF THE ACT SUCH PAYMENTS THEREFORE ARE THEREFORE NOT CALL FOR DISALLOWANCE U/S.40(A)(IA). THIS BEING THE LAW LAID DOWN BY ITAT HYD. BENCH IN TEJA CONSTRUCTION AND NOT BEING CONSI DERED AMOUNTS TO A MISTAKE APPARENT ON RECORD AS HELD BY HONBLE SUPRE ME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD V. CIT (295 I TR 466). THIS BEING A MISTAKE APPARENT ON RECORD, NEEDS TO BE REC TIFIED. 3. THE HONBLE TRIBUNAL DID NOT CONSIDER THE GROUN D OF THE APPELLANT THAT ONCE THE PAYEES HAVE PAID THE TAXES, THE DEPT. CANNOT ONCE AGAIN RECOVER THE SAME BY WAY OF DISALLOWANCE U/S.40(A)(I A). RELIANCE WAS PLACED ON THE DECISION OF THE HON'BLE SC IN THE CA SE OF HINDUSTAN COCA COLA BEVERAGES PVT.LTD. AT 293 ITR 226. IN THE INS TANT CASE, THE APPELLANT ALSO PROVIDED THE INCOME TAX RETURNS OF T HE PAYEES. NON CONSIDERATION OF THE ABOVE, AMOUNTS TO A MISTAKE AP PARENT ON RECORD AND HENCE NEEDS TO BE RECTIFIED. 2. IN THE LIGHT OF THE ABOVE PETITION, LD.AR MR. TEJ SHAH HAS VEHEMENTLY CONTESTED THAT SOME OF THE CASE LAWS WHICH WERE CIT ED BEFORE THE RESPECTED TRIBUNAL WERE NOT CONSIDERED AT ALL. THE ASSESSEES BUSINESS IS SUPPLY OF BUSES AND TO MEET OUT THE REQUIREMENT THE ASSESSEE HAS AL SO HIRED THE BUSES FROM OUTSIDE. THE HIRING OF THE BUSES WAS NOT SUB-CONTR ACTED, BUT IT WAS THE EXPENDITURE IN THE NORMAL COURSE OF BUSINESS. IN T HE CASE OF AMBUJA DARLA KASHLOG MANGU TRANSPORT CO-OP.SOCIETY 31 DTR 49(HP ) : 227 CTR 299 (HP), IT WAS HELD THAT PAYMENTS MADE BY THE ASSESSE E-SOCIETY TO THE TRUCK MA NO.95/AHD/2012 ( OUT OF ITA NO.2594/AHD/2010 ) MUKESH TRAVELS COMPANY VS. ITO ASST.YEAR - 2007-08 - 3 - OWNERS WHO WERE ITS MEMBERS AFTER RECEIVING THE PAY MENTS FROM THE COMPANIES FOR TRANSPORTING THEIR GOODS WERE NOT HEL D TO BE SUBJECTED TO TDS UNDER S. 194C(2) AS THERE WAS FOUND TO BE NO SUB-CO NTRACT BETWEEN THE SOCIETY AND THE MEMBERS. THE LD.AR HAS PLEADED THAT ARGUM ENT ADVANCED AND THE CASE LAWS CITED HAVE NOT BEEN DEALT WITH, THEREFORE IN THE LIGHT OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT 295 ITR 466(SC) AN APPA RENT MISTAKE WAS COMMITTED BECAUSE THE JUDGEMENT CITED WAS NOT DEALT WITH BY THE HONBLE TRIBUNAL. 3. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, THE LD.SR.DR MR.D.K.SINGH HAS SUPPORTED THE ORDER OF THE TRIBUNA L AND ARGUED THAT THE TRIBUNAL HAS ARRIVED AT THE CONCLUSION AFTER CONSID ERING THE LONG DRAWN ARGUMENTS OF BOTH THE SIDES. THE TRIBUNAL MIGHT HA VE CONSIDERED THE CASE LAWS WHICH WERE REFERRED BY LD.AR, BUT IT WAS NOT MADE PART OF THE JUDGEMENT, BUT THAT WAS NOT AN APPARENT MISTAKE, HENCE THIS PE TITION DESERVES TO BE DISMISSED. 4. HAVING CONSIDERED THE SUBMISSIONS OF BOTH THE SI DES, WE ARE OF THE CONSIDERED VIEW THAT ONCE THE HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT (295 ITR 466)[SC] HAVE HELD THAT RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND IF THIS RULE IS INFRINGED, THEN THE TRIBUNAL HAS COMMI TTED AN ERROR. THE HONBLE COURT HAS THUS CONCLUDED THAT NON-CONSIDERATION OF A DECISION PLACED BEFORE THE TRIBUNAL AMOUNTS TO MISTAKE APPARENT FROM RECOR D WITHIN THE MEANING OF SECTION 254(2) OF THE I.T.ACT. THE ASSESSEE HAS CI TED MYTHRI TRANSPORT CORPORATION VS. ACIT REPORTED AS (2010) 1 ITR 290 ( ITAT VISAKHAPATNAM BENCH). THE ASSESSEE HAS ALSO CITED THE DECISION O F HON'BLE HP HIGH COURT IN MA NO.95/AHD/2012 ( OUT OF ITA NO.2594/AHD/2010 ) MUKESH TRAVELS COMPANY VS. ITO ASST.YEAR - 2007-08 - 4 - THE CASE OF CIT VS. AMBUJA DARLA KASHLOG MANGU TRAN SPORT CO-OP. SOCIETY(SUPRA). FROM THE SIDE OF THE ASSESSEE A DE CISION OF TEJA CONSTRUCTIONS VS. ACIT (2010)36 DTR 220 (HYD.)[TRIB.] WAS STATED TO HAVE BEEN CITED. THE ASSESSEE HAS ALSO CITED THE DECISION OF HON'BLE APE X COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE PVT.LTD. VS.CIT REPOR TED AS 293 ITR 226(SC) FOR THE LEGAL PROPOSITION THAT THE TAXES HAVE ALREA DY BEEN PAID BY THE PAYEES, THEREFORE THE ASSESSEE SHOULD NOT BE TREATED IN DEF AULT. WE, THEREFORE, CONCLUDE THAT THE IMPUGNED ORDER OF THE TRIBUNAL DESERVES TO BE RECALLED TO BE DECIDED AFRESH IN THE LIGHT OF THESE DECISIONS WHICH WERE M ISTAKENLY NOT DELIBERATED UPON. ONCE THE ORDER IS HEREBY RECALLED, THEREFORE REGISTRY IS DIRECTED TO FIX THIS APPEAL AFRESH AS PER LAW. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. SD/- SD /- ( !' ) ( ) #$ ( ANIL CHATURVEDI ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14 /12 /2012 5'.., .../ T.C. NAIR, SR. PS #4 0 -6 7#6& #4 0 -6 7#6& #4 0 -6 7#6& #4 0 -6 7#6&/ COPY OF THE ORDER FORWARDED TO : 1. (, / THE APPLICANT 2. -.(, / THE RESPONDENT. 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-XV, AHMEDABAD 5. 6;< - , , / DR, ITAT, AHMEDABAD 6. <= >1 / GUARD FILE. #4 #4 #4 #4 / BY ORDER, .6 - //TRUE COPY// ? ?? ?/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD