Income Tax Appellate Tribunal - Rajkot
Bhavin Dholakiya,, Gandhidham vs Assessee on 27 November, 2012
आयकर अपील य अ धकरण, राजकोट यायपीठ राजकोट IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH, RAJKOT.
Before Shri T. K. Sharma JM and Shri B. R. Jain AM ITA No. 76/Rjt/2013 नधारण वष / Assessment Year 2009-10. The I.T.O. V/s Shri Bhavin S. Dholakia, Plot Ward-1, Gandhidham. No. 22, House No. 5, Sector-
7, Gandhidham- Kutch.
PAN- AGPPD0260J (अपीलाथ /Appellant यथ /Respondent C.O. No. 09/Rjt./2013 In ITA No. 76/Rjt/2013 नधारण वष / Assessment Year 2009-10. Shri Bhavin S. Dholakia, Plot V/s The I.T.O. No. 22, House No. 5, Sector-7, Ward-1, Gandhidham. Gandhidhan- Kutch.
PAN- AGPPD0260J (अपीलाथ /Appellant यथ /Respondent राज व क ओर से/ Revenue by Dr. J.B. Jhaveri, D.R. नधा रतीक ओर से/ Assessee by Shri D.M. Rindani, C.A. ु वाई क तार ख / Date of 08/01/2014 सन Hearing घोषणा क तार ख / 09/01/2014 Date of Pronouncement आदे श / Order PER B. R. Jain, A. M. :
The appeal by revenue and cross objection by assessee arise against the order dated 27/11/2012 of Shri N.R. Soni, the learned CIT(A)-
II, Rajkot. The grounds raised in appeal by revenue are as under:-
"1. Whether CIT(A) was justified in holding that 40(a)(ia) can be applied only on amounts remains outstanding at the end of the year.
2. Whether CIT(A) is justified in giving relief to the assessee on the basis of ITAT Vishakhapattanam Bench in case of Merilyn
2 ITA 76/Rjt/2013 & C.O. 09/Rjt./2013 & Transporter, despite the fact that this decision has been suspended interimly by Hon'ble Hyderabad High Court, through its order ITTAMP No. 908 of 2012 in ITA No. 384 of 2012."
Grounds raised in C.O. are reproduced as under:-
"1 The learned Commissioner of Income Tax (Appeals)-II, Rajkot erred in not adjudicating upon the plea of the appellant that was advanced both before the Assessing Officer and the First Appellate Authority that in view of nature of business the appellant was not liable for deduction of tax at source u/s 194C r.w.s. 195 of the Income Tax Act and hence consequently there was no warrant for applicability of Section 40(1)(a) of the Act."
2. Assessee's counsel seeks to withdraw the adjournment application. Ld. D.R. does not object. The request to withdraw application for adjournment stands allowed and parties were directed to argue their case.
3. Heard parties with reference to material on record. The Ld. CIT(A) committed error in deleting the addition by relying on the Special Bench order of Vishakhapattanam Bench of the Tribunal in case of Merilyn & Transporters Vs. CIT 136 ITD 23. As this decision of the Tribunal stands set aside by the Hon'ble Andhra Pradesh High Court. Thereafter, the Hon'ble Gujarat High Court in the case of CIT Vs. Sikandar Khan Tunvar (2013) 357 ITR 312 (Gujarat), has laid down that the expression "payable" appearing in Section 40-a(ia) of the I.T. Act, 1961 (in short the Act), means payable at any time during the year. If the assessee is liable to deduct tax at source, then provisions of Section 40-a(ia) of the Act are applicable to the payments of expenditure made during the year as well, even though, they may not be outstanding at the end of the relevant year. In the present case, the Ld. CIT(A), however, did not render any decision on assessee's plea that he being a mediator, provisions of Section 194(c) of the Act are not applicable to him. Since this fact requires enquiry, we set aside the order of the Ld.CIT(A) and remit the matter back to him to render his 3 ITA 76/Rjt/2013 & C.O. 09/Rjt./2013 decision by way of a speaking order on this alternate plea raised before him.
4. In the result, appeal by Revenue and cross objection by assessee stand allowed for statistical purposes only.
Order pronounced in the open court on 09/01/2014.
Sd/- Sd/- ( T. K. Sharma ) ( B. R. Jain ) या यक सद य/Judicial Member लेखा सद य/ Accountant Member
आदे श दनांक/Order Date 09/01/2014. राजकोट /Rajkot *Ranjan आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant- The I.T.O., Ward-1, Gandhidham.
2. यथ /Respondent- Shri Bhavin S. Dholakia, Gandhidham.
3. संबं धत आयकर आयु त / CIT-I, Rajkot.
4. आयकर आयु त- अपील / CIT (A)-II, Rajkot.
5. वभागीय त न ध, आयकर अपील य अ धकरण, राजकोट / DR, ITAT, Rajkot
6. गाड फाइल / Guard file.
आदे श से / By order, True Copy Private Secretary, आयकर अपील य अ धकरण, राजकोट Income tax Appellate Tribunal, Rajkot.