VIJAY G. MANDAVE, MUMBAI v. ITO 23(1)(4), MUMBAI

ITA 3843/MUM/2012 | 2007-2008
Pronouncement Date: 07-04-2014 | Result: Partly Allowed

Appeal Details

RSA Number 384319914 RSA 2012
Assessee PAN AAYPM9499D
Bench Mumbai
Appeal Number ITA 3843/MUM/2012
Duration Of Justice 1 year(s) 10 month(s) 7 day(s)
Appellant VIJAY G. MANDAVE, MUMBAI
Respondent ITO 23(1)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-04-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted F
Tribunal Order Date 07-04-2014
Date Of Final Hearing 29-08-2013
Next Hearing Date 29-08-2013
Assessment Year 2007-2008
Appeal Filed On 31-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH MUMBAI BEFORE SHRI D. MANMOHAN VICE PRESIDENT AND SHRI SANJAY ARORA ACCOUNTANT MEMBER ITA NO. 3843/MUM/2012 (ASSESSMENT YEAR: 2007-08) SHRI VIJAY G. MANDAVE INCOME TAX OFFICER - 23(1)(4 ) 13/14 GOVIND NAGAR GAMADEVI ROAD BHANDUP (W) MUMBAI 400078 VS. PRATYAKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E) MUMBAI 400051 PAN - AAYPM9499D APPELLANT RESPONDENT APPELLANT BY: SHRI BHADRESH DOSHI RESPONDENT BY: SHRI PITAMBAR DAS DATE OF HEARING: 07.04.2014 DATE OF PRONOUNCEMENT: 07.04.2014 O R D E R PER D. MANMOHAN V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-36 MUMBAI AND IT PERTAINS TO A.Y. 2007-08. 2. THOUGH THE ASSESSEE HAS RAISED FOUR GROUNDS IN THE GROUNDS OF APPEAL ANNEXED TO FORM NO. 36 AT THE TIME OF HEARI NG THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT INTERESTED IN PRESSING GROUNDS 1 3 AND 4. ACCORDINGLY THE GROUNDS ARE DIS MISSED AS NOT PRESSED. THE ONLY GROUND THAT SURVIVES FOR OUR CONSIDERATION I.E. GROUND NO. 2 IS WITH REGARD TO THE TREATMENT OF TAX DEDUCTED FROM L ABOUR CHARGES UNDER SECTION 194C OF THE ACT AND PAID BEFORE THE DUE DAT E AND IN WHICH CASE WHETHER THE SAID AMOUNT CAN BE SUBJECT MATTER OF DI SALLOWANCE UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT. THIS IS A NEW GROUND URGED BEFORE US. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AT THE RELEVANT POINT OF TIME ANY TAX DEDUCTED AT SOURCE SHOULD BE PAID WITHIN THE STIPULATED PERIOD OR BEFORE THE END OF THE ACCOUNTI NG YEAR AS OTHERWISE ITA NO. 3843/MUM/2012 SHRI VIJAY G. MANDAV 2 PROVISIONS OF SECTION 40(A)(IA) GET ATTRACTED. THER EFORE THE ASSESSEE SUO MOTO OFFERED IT AS COULD BE NOTICED FROM PAGES 3 9 AND 10 OF THE PAPER BOOK. SECTION 40(A)(IA) OF THE INCOME TAX ACT WAS AMENDED BY FINANCE ACT 2010 WHEREIN IT WAS CLARIFIED THAT IF A PAYMENT HAS NOT BEEN MADE ON OR BEFORE THE DUE DATE SPECIFIED IN SUBSECTION (1) OF SECTION 139 OF THE ACT PROVISIONS OF SECTION 40(A)(IA) GET ATTRACTED. THOUGH IT WAS S TATED TO BE W.E.F. 01.04.2010 THE HON'BLE DELHI HIGH COURT HAD TAKEN A VIEW THAT IT IS APPLICABLE RETROSPECTIVELY FROM 01.04.2005 (CIT VS. NARESH KUMAR ITA NO. 24 OF 2013 DATED 6 TH SEPTEMBER 2013). SIMILAR VIEW WAS TAKEN IN THE FOLLOWING DECISIONS: - I. CIT VS. VIRGIN CREATIONS IOTA NO. 302 OF 2011 (CALC UTTA HIGH COURT) II. PIYUSH C. MEHTA VS. ACIT 20 TAXMANN.COM 473(MUM) THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE LIGHT OF THE AFOREMENTIONED DECISIONS THOUGH THE ASSESSEE HAS V OLUNTARILY OFFERED IT TO TAX NOW A FRESH GROUND IS RAISED; SINCE THE FACTS ARE ALREADY ON RECORD AND IT IS A PURE QUESTION OF LAW WHICH GOES TO THE ROOT OF THE MATTER THE SAME DESERVES TO BE ADMITTED. HE ALSO SUBMITTED THAT THE ASSESSEE DID NOT CLAIM DEDUCTION IN THE SUBSEQUENT YEAR AND THUS THERE IS NO QUESTION OF DOUBLE BENEFIT TO THE ASSESSEE. 4. ON THE OTHER HAND THE LEARNED D.R. SUBMITTED THAT THE ASSESSEE HAVING VOLUNTARILY OFFERED THE IMPUGNED AMOUNT TO T AX UNDER SECTION 40(A)(IA) OF THE ACT HE IS PREVENTED FROM RAISING ADDITIONAL GROUND BEFORE THE TRIBUNAL FOR THE FIRST TIME. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS WELL SETTLED THAT TAX LITIGATION IS N OT A LIS BETWEEN TWO PARTIES AND WHAT HAS TO BE CONSIDERED IN THE APPELLATE PROC EEDINGS IS AS TO WHETHER PROPER TAX IS PAYABLE OR NOT. ASSESSEE IN THE INST ANT CASE IS OBJECTING TO LIABILITY OF TAX ON THE SAID AMOUNT ON THE GROUND T HAT THE PAYMENT HAS BEEN MADE ON 29.10.2007 AND RETURN OF INCOME HAVING BEEN FILED ON 31.10.2007 THE IMPUGNED AMOUNT IS NOT HIT BY PROVISIONS OF SEC TION 40(A)(IA) OF THE ACT AND MERELY BECAUSE THE ASSESSEE HAS WRONGLY SHOWED IT AS AMOUNT ITA NO. 3843/MUM/2012 SHRI VIJAY G. MANDAV 3 DISALLOWABLE IT WOULD NOT BIND THE ASSESSEE. IT IS ALSO NOT IN DISPUTE THAT ALL THE FACTS ARE ON RECORD AND THERE IS NO CONTRARY DE CISION BROUGHT TO OUR NOTICE TO SHOW THAT THE AMENDMENT MADE TO SECTION 4 0(A)(IA) OF THE ACT BY THE FINANCE ACT 2010 IS PROSPECTIVE IN NATURE. HAV ING REGARD TO THE CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF SU BSTANTIAL JUSTICE WE ADMIT THE ADDITIONAL GROUND AND DIRECT THE AO TO CONSIDER THE CLAIM OF THE ASSESSEE IN THE LIGHT OF THE DECISIONS CITED SUPRA. NEEDLESS TO OBSERVE THAT IF THE IMPUGNED AMOUNT IS NOT DISALLOWABLE IN THE YEAR UNDER CONSIDERATION IN THE LIGHT OF THE AFORECITED DECISIONS THE ASSESSEE WOULD NOT BE ENTITLED TO CLAIM DEDUCTION IN THE SUBSEQUENT YEAR AND IF ANY S UCH CLAIM IS MADE THE AO IS DIRECTED TO REJECT THE CLAIM IN THE SUBSEQUEN T YEAR. WITH THESE OBSERVATIONS THE ISSUE ARISING OUT OF GROUND NO. 2 IS SET ASIDE TO THE FILE OF THE AO. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH APRIL 2014. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI DATED: 7 TH APRIL 2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 36 MUMBAI 4. THE CIT 23 MUMBAI CITY 5. THE DR F BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.