M/s Vishnu Saroop Parkash Chand, Ladwa v. ITO, Kurukshetra

ITA 963/CHANDI/2016 | 2009-2010
Pronouncement Date: 27-10-2016 | Result: Allowed

Appeal Details

RSA Number 96321514 RSA 2016
Assessee PAN AABFV4652Q
Bench Chandigarh
Appeal Number ITA 963/CHANDI/2016
Duration Of Justice 1 month(s) 22 day(s)
Appellant M/s Vishnu Saroop Parkash Chand, Ladwa
Respondent ITO, Kurukshetra
Appeal Type Income Tax Appeal
Pronouncement Date 27-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 27-10-2016
Assessment Year 2009-2010
Appeal Filed On 05-09-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH CHANDIGARH BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER ITA NO. 963/CHD/2016 ASSESSMENT YEAR: 2009-10 M/S VISHNU SAROOP PARKASH CHAND VS THE ITO SHOP NO. 70 NEW GRAIN MARKET WARD 2 LADWA. KURUKSHETRA. PAN: AABFV4652Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY KUMAR JAI N RESPONDENT BY : SHRI S.K.MITTAL DR DATE OF HEARING : 25.10.2016 DATE OF PRONOUNCEMENT : 27.10.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) KARNAL DATED 01.08.20 16 FOR ASSESSMENT YEAR 2009-10. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 3. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NOS. 2 AND 3 OF APPEAL OF THE ASSESSEE. SAM E ARE THEREFORE DISMISSED BEING NOT PRESSED. 2 4. GROUND NO. 1 READS AS UNDER : 1. THAT THE LEARNED C.I.T. (A) HAS WRONGLY UPHELD T HE ADDITION OF RS. 13 23 691/- UNDER SECTION 40(A)(IA) ON ACCOUNT OF PAYMENT MADE TO SHIV SHAKTI RICE MILLS WITHOUT DEDUCTING THE TAX AT SOURCE & HE FAILED TO APPRECIATE THE FACT THAT PAYEE HAS ALREAD Y INCLUDED THE RECEIPT OF RS1323691/- IN HIS INCOME TAX RETURN & P AID TAXES ON THIS INCOME. THE LD COMMISSIONER OF INCOME TAX (A) HAS F AILED TO APPRECIATE THE DECISION OF SUPREME COURT IN CASE OF HINDUSTAN COCA COLA BEVERAGES 293 ITR 226. 5. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER OBSERVED THAT THE CONTENTION OF THE ASSESSEE REGARD ING NO AMOUNT BEING PAYABLE DURING THE YEAR AS REASON FOR NO-DEDUCTION OF TDS WAS NOT ACCEPTABLE. THE ASSESS ING OFFICER RELIED UPON DECISION OF CIT VS SIKANDERKHAN N. TUNVAR & OTHERS 87 DTR 137 (GUJRAT) TO ARGUE THAT T HE ASSESSEE WAS REQUIRED TO DEDUCT TAX UNDER SECTION 1 94C OF THE INCOME TAX ACT AND SINCE ASSESSEE VIOLATED T HIS PROVISION THEREFORE ADDITION OF RS. 13 23 691/- W AS MADE UNDER SECTION 40(A)(IA) OF THE ACT. IT WAS IN RESPECT OF CONTRACT MADE WITH M/S SHIV SHAKTI RICE MILLS LADWA. THE LD. CIT(APPEALS) CONFIRMED THE ADDITION CONSIDERING IT TO BE COVERED AGAINST THE ASSESSEE BY JUDGEMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PMS DIESEL 374 ITR 562. THE APPEAL OF THE ASSESSEE WAS ACCORDINGLY DISMISSED. 6. AFTER CONSIDERING RIVAL SUBMISSIONS I AM OF THE VIEW MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE 3 ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT PAYEE HAS ALREADY INCLUDED THE AMOUN T IN QUESTION IN HIS INCOME TAX RETURN AND PAID TAX THEREON. HE HAS RELIED UPON ORDER OF ITAT CHANDIGA RH BENCH IN THE CASE OF M/S OM TRADING CO. VS ITO ( IT A 368/2016 DATED 03.08.2016) IN WHICH THE TRIBUNAL FOLLOWING DECISION OF THE DELHI HIGH COURT IN THE C ASE OF ANSAL LANDMARK TOWNSHIP (P) LTD. DATED 26.08.2015 [377 ITR 635] IN WHICH IT WAS HELD THAT SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT IS DECLARATORY AND CURATIVE IN NATURE AND SHOULD BE GIVEN RETROSPECTIVE EFFECT FROM 01.04.2005. THE TRIBUNAL RESTORED THE MATTER TO THE ASSESSING OFFICER WITH DIRECTION TO VERIFY CLAIM OF THE ASSESSEE THAT PAYEE HAS OFFERED THE INCOME/AMOUNT RECEIVED FROM THE ASSESSEE FOR TAXATION IN ITS RETU RN OF INCOME AND IF THE CLAIM OF THE ASSESSEE IS FOUND CO RRECT THEN ALLOW THE CLAIM OF THE ASSESSEE. THIS PLEA IS TAKEN BY ASSESSEE FOR THE FIRST TIME BEFORE TRIBUNAL THE REFORE IT NEEDS TO BE VERIFIED BY THE ASSESSING OFFICER. I THEREFORE SET ASIDE THE ORDERS OF AUTHORITIES BELO W AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO VERIFY THE CLAIM OF ASSESSEE THAT IF P AYEE HAS OFFERED THE INCOME/AMOUNT RECEIVED FROM THE ASSESSEE FOR TAXATION IN ITS RETURN OF INCOME TH EN THE 4 ADDITION BE DELETED. THE ASSESSING OFFICER SHALL G IVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 7. IN THE RESULT APPEAL OF THE ASSESSEE ON THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 27 TH OCTOBER 2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT DR ASSISTANT REGISTRAR ITAT/CHD