GOLKUNDA DIAMONDS & JEWELLERY LTD, MUMBAI v. ITO 8(1)(4), MUMBAI

CO 135/MUM/2013 | 2007-2008
Pronouncement Date: 21-11-2014 | Result: Dismissed

Appeal Details

RSA Number 13519923 RSA 2013
Assessee PAN AAACG2736L
Bench Mumbai
Appeal Number CO 135/MUM/2013
Duration Of Justice 1 year(s) 4 month(s) 17 day(s)
Appellant GOLKUNDA DIAMONDS & JEWELLERY LTD, MUMBAI
Respondent ITO 8(1)(4), MUMBAI
Appeal Type Cross Objection
Pronouncement Date 21-11-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 21-11-2014
Date Of Final Hearing 25-09-2014
Next Hearing Date 25-09-2014
Assessment Year 2007-2008
Appeal Filed On 04-07-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH MUMBAI BEFORE SHRI R.C.SHARMA A M & VIVEK VARMA J M ITA NO. 8311 / MUM/20 1 1 ( ASSESSMENT YEAR : 200 7 - 0 8 ) ITO - 8 ( 1 ) - 4 MUMBAI VS. M/S GOLKUNDA DIAMONDS & JEWELLERY LTD. G - 30 GEMS & JEWELLERY COMPLEX SEEPZ ANDHERI (EAST) MUMBAI - 400 096 PAN/GIR NO. : A A ACG 2736 L ( APPELLANT ) .. ( RESPONDENT ) AND NO. 135 /MUM/20 1 3 (ARISING OUT OF ITA NO. 8311 /MUM/201 1 ) ( ASSESSMENT YEAR : 2007 - 08 ) M/S GOLKUNDA DIAMONDS & JEWELLERY LTD. G - 30 GEMS & JEWELLERY COMPLEX SEEPZ ANDHERI (EAST) MUMBAI - 400 096 VS. ITO - 8(1) - 4 MUMBAI PAN/GIR NO. : A AACT 0054 A ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : SHRI R.N DSOUZA /ASSESSEE BY : MS . AARATI SATHE DATE OF HEARING : 1 7 TH NOVEMBER 201 4 DATE OF PRONOUNCEMENT 21 ST NOV. 201 4 O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AND CROSS OBJECTION BY THE ASSES SEE AGAINST THE ORDER CIT(A) DATED 3 - 10 - 2011 IN THE MATTER OF ORDER ITA NO. 8311 / 1 1 &CONO. 135/13 2 PASSED U/S. 143 ( 3 ) OF THE I.T. ACT FOR THE ASSESSMENT YEAR 200 7 - 0 8 WHEREIN FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE : - 1 . O N THE FACTS AND CIRCUMSTANCES AND IN LAW T HE LD. CIT( A) ERRED IN DIRECTING THE AO TO ALLOW UNABSORBED LOSS IN RESPECT OF SEEPZ UNIT OF RS.87 79 143/ - WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD NOT CLAIMED THE SAME IN ITS RETURN OF INCOME. 2. O N THE FACTS AND CIRCUMSTANCES AND IN LAW T HE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW UNABSORBED LOSS IN RESPECT OF SEEPZ UNIT OF RS.87 79 143/ - IGNORING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT (2006) 284 ITR 323 (SC) . 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. THE ASSESSEE IN ITS CROSS OBJECTION HAS TAKEN FOLLOWING GROUNDS : - 1.(A) T HE LEARNED CIT(A) - 16 MUMBAI ERRED IN DISALLOWING THE CLAIM OF THE ASSESSEE I.E. RESPONDENT OF AN AMOUNT OF RS. 4 97 512/ - OUT OF RS.5 77 870/ - PAID TO CLEARING AND FORWARDING AGENT TOWARDS FREIGHTS CHARGES ON THE GROUND OF NOT DEDUCTING TAX AT SOURCE AND FAILED TO APPRECIATE THAT NO TDS IS REQUIRED IN CASE OF EXPORT OF GOODS. (B) THE LEARNED CIT(A) - 16 MUMBA I HAS FURTHER ERRED IN DISALLOWING THE CLAIM OF THE RE SPONDENT FOR NO DEDUCTION OF TDS REQUIRED TO BE MADE ON BALANCE AMOUNT OF SERVICE CHARGES OF RS. 48 881/ - AS THE SAME BELOW RUPEES FIFTY THOUSAND IN AGGREGATE. 2 . RIVAL CONTENTIONS HAVE BEEN HEARD A ND RECORD PERUSED. FACTS IN BRIEF ARE THAT NEITHER IN THE RETURN OF INCOME NOR BEFORE THE AO THE ASSESSEE HAS CLAIMED SET UP OF UNABSORBED LOSS IN RESPECT OF SEEPZ UNIT OF RS.87 79 143/ - . HOWEVER BEFORE THE CIT(A) THE ASSESSEE SUBMITTED THAT THE CLAIM OF UNABSORBED LOSS AVAILABLE IS OF RS. 1 60 18 228/ - AND NOT WHAT WAS CLAIMED IN THE RETURN OF INCOME OF RS. 26 94 246/ - . THE ASSESSEE FURTHER SUBMITTED THAT AS PER THE ASSESSMENT ORDER DATED 17.03.2007 PASSED U/ S.143(3) THE TOTAL LOSS ALLOWED TO CARRIED F ORWARD BY WAY OF UNABSORBED DEPRECIATION & BUSINESS LOSS WAS OF RS. 3 86 32 903/ - . HOWEVER WHILE FILING THE INCOME TAX RETURN FOR A.Y. 2003 - 04 THE FIGURE FOR BROUGHT FORWARD LOSS BEING TAKEN AT RS. 2 98 53 761/ - . THUS UNABSORBED ITA NO. 8311 / 1 1 &CONO. 135/13 3 LOSS IN RESPECT OF SEEPZ UNIT OF RS. 87 79 143/ - WAS LEFT OUT BY MISTAKE. THE ASSESSEE FURTHER SUBMITTED THAT THE FIGURE OF GROSS TOTAL INCOME OF RS. 98 34 161/ - WAS NOT REDUCED BY LOSS IN APPELLANT'S SEEPZ UNIT OF RS. 50 94 449/ - SUFFERED DURING THE FINANCIAL YEAR 2002 - 03 RELEVANT TO A.Y. 2003 - 04 NOT DEDUCTED FROM THE PROFIT OF CHAKALA UNIT. THUS TO THAT EXTENT THE BROUGHT FORWARD UNABSORBED LOSS WAS SET OFF AT A HIGHER FIGURE. THE ASSESSEE FURTHER SUBMITTED THAT THE ABOVE AVAILABLE UNABSORBED LOSS OF RS. 1 60 18 228/ - SHOULD BE ALL OWED AFTER VERIFY THE SAM E. 3 . BY THE IMPUGNED ORDER THE CIT(A) DIRECTED THE AO TO VERIFY THE CONTENTION OF THE ASSESSEE AD ALLOW THE BROUGHT FORWARD LOSS IN RESPECT OF SEEPZ UNIT. ACCORDINGLY MATTER WAS RESTORED BACK TO THE FILE OF AO. 4 . WE ARE AWAR E OF THE LEGAL POSITION THAT THE CIT(A) HAS NO POWER TO RESTORE THE MATTER BACK TO FILE OF THE AO HOWEVER THE TRIBUNAL HAS SUFFICIENT POWER IN THIS REGARD. ACCORDINGLY WE MODIFY THE ORDER OF THE CIT(A) AND DIRECT THE AO TO VERIFY THE FACT OF UNABSORBED LOSS AND TO DECIDE THE ISSUE AS PER LAW AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. 5. IN THE CROSS OBJECTION FILED BY THE ASSESSEE THE ASSESSEE IS AGGRIEVED FOR DELETING DISALLOWANCE OF RS. 4 97 512/ - OUT OF RS. 5 77 870/ - PAID TO CLEARING AND FORWARDING AGENT TOWARDS FREIGHT CHARGES ON THE GROUND OF NOT DEDUCTING TAX AT SOURCE. THE CONTENTION OF THE LEARNED AR WAS THAT PAYMENT OF RS. 31 699/ - MADE TO BVC LOGISTICS P. LTD. TOWARDS FREIGHT CHARGES AND RS. 17 182/ - TO RINKU SHIPPING AGENCY WAS BELOW RUPEES F IFTY THOUSAND THEREFORE NO TDS WAS REQUIRED TO BE DEDUCTED AT SOURCE. ITA NO. 8311 / 1 1 &CONO. 135/13 4 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THERE IS A DELAY OF 378 DAYS IN FILING THE APPEAL HOWEVER WHILE GOING INTO FACTS WE FOUND THAT ASSESSEE HAS MADE FOLLOWING PAY MENTS DURING THE YEAR : - FRIEGHT & HAWB FEES(RS.) OTHER CHARGES(RS.) (I) MALCA AMIT J.K.LOGISTICS 3 02 941 50 375 (II) B.V.C.LOGISTICS P. LTD. 1 10 027 31 699 (III) RINKU SHIPPING AGENCY 84 544 17 182 THERE IS NO DISPUTE WITH REGARD TO PAYMENT MADE FO R FREIGHT ON WHICH ASSESSEE WAS REQUIRED TO DEDUCT TAX AND THE PAYMENT WAS ALSO MORE THAN RS. 50 000/ - IN EACH CASE BUT NO TAX WAS DEDUCTED AT SOURCE. ACCORDINGLY THERE IS NO INFIRMITY FOR DISALLOWING THIS AMOUNT U/S. 40(A)(IA) . HOWEVER WE FOUND THAT THE TOTAL PAYMENT MADE TO ALL THE THREE PARTIES TAKING BOTH FREIGHT AND OTHER CHARGES WAS IN EXCESS OF RS. 50 000/ - THEREFORE ASSESSEE WAS REQUIRED TO DEDUCT TAX ON THE ENTIRE AMOUNT. MERELY BECAUSE PAYMENT ON ACCOUNT OF OTHER CHARGES PAID TO THE VERY SAME PA RTY WAS BELOW RS. 50 000/ - THE ASSESSEE WILL NOT BE EXONERATED FROM DEDUCTION OF TAX WITH RESPECT TO THE PAYMENT SO MADE TO THE VERY SAME PARTY WHICH WAS IN EXCESS OF RS. 50 000/ - . ACCORDINGLY WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE ASSESSEE FOR EXCLUDING THE AMOUNT PAID UNDER THE HEAD OTHER CHARGES TO M/S BVC LOGISTIC P. LTD. AND RINKU SHIPPING AGENCY . ACCORDINGLY WE CONFIRM THE ORDER OF THE CIT(A) ON THIS GROUND. ITA NO. 8311 / 1 1 &CONO. 135/13 5 7 . IN THE RESULT APPEAL FILED BY THE REVENUE IS ALLOWED SUBJECT TO OUR ABOVE OBSERVATION WHEREAS THE CROSS OBJECTION OF THE ASSESSEE DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 /11/ 201 4 . 21 /11/ 2014 SD/ - SD/ - ( ) ( VIVEK VARMA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOU NTANT MEMBER MUMBAI ; DATED 21 / 11 /2014 /PKM PS COPY OF THE ORDER FORWARDED TO : / BY ORDER ( ASSTT. REGISTRAR) / ITAT MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) MUMBAI. 4. / CIT 5. / DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY//