TMI Blog2016 (5) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... material - Held that:- The provisions of Chapter XVII·B of the Act cannot be said to be applicable on purchase of finished/traded goods Accordingly, there is no default on the part of tile Appellant in complying with the provisions of Chapter XVII-B of the Act while making payment for purchase of finished/traded goods and Purchase of Packing Material without deducting tax at source This ground of appeal is allowed in favour of the appellant. - Decided in favour of assessee - ITA No. 5053 to 5057/Mum/2013, ITA No.2450/Mum/2014, Cross Objection No.141/Mum/2015 - - - Dated:- 25-5-2016 - Shri R. C. Sharma, Accountant Member And Shri Sanjay Garg, Judicial Member For the Revenue : Shri S. Pandian For the Assessee : Shri Kirit Kamdar ORDER Per Bench The above titled appeals by the revenue for A.Y.2004-05, 2005- 06, 2006-07, have been preferred against the common order dated 30-3-2013 of the learned Commissioner of Income-Tax (Appeals) (hereinafter referred to as CIT(A) ), whereas appeals by the revenue for A.Y.2008-09 2009-10 have been preferred against the separate orders of CIT(A) dated 30-3- 2013. However, the revenue has also preferred appeal for A.Y.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be applicable on the year end provisions in the present cases. Ld. CIT(A) after considering the submissions of the assessee and further relying and following the order of the Tribunal in the assessee s own case for the assessment year 2007-08, dated 31-10-2012, decided the issue in faovur of the assessee, thereby deleting the demands raised by the AO on this issue. The revenue, thus, has come in appeal before us in relation to above issue. 6. At the outset, ld. AR of the assessee has stated that the issue of non-deduction of tax on year-end and provision is not involved, so far as the A.Y.2004-05 and 2005-06 are concerned. He, however, has stated that this issue is involved in the assessment year 2006-07 to A.Y.2009- 2010. But the department without application of mind has taken this issue for A.Y.2004-05 and 2005-06 also, since a common order has been passed by the CIT(A) in relation to A.Y.2004-05 to A.Y.2006-07. He has further invited our attention to the order of the Tribunal dated 31-10-2012 for the A.Y.2007-08 in assessee s own case, wherein the Tribunal while relying upon another decision of coordinate bench of the Tribunal in the case of IDBI Vs. ITO, 107 ITD 45 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been accepted by AO, we are of the opinion that the same amount cannot be considered as amount covered by the provisions of section 194C to 194J so as to raise TDS demand again under section 201 and levy of interest under section 201(1A). Therefore, assessee s ground on this issue are to be allowed as the entire amount has been disallowed under the provisions of section 40(a)(i)/(ia) in the computation of income on the reason that TDS was not made. For this reason alone assessee s grounds can to be allowed. Considering the facts and reasons stated above assessee s grounds are allowed. 13. Assessee has raised one more contention that interest under section 201(1A) should be levied till the date of payment and not till the date of order. Anyhow this issue became academic in nature, as we have already held that demand under section 201 cannot be raised once the entire amount has been disallowed in the computation of income under section 40(a)(i) and 40(a)(ia). In view of this even though the contention is correct being a legal issue, there is no need for adjudicating the matter as the grounds raised have been held in favour of assessee. AO is directed to delete the said dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble tribunal on identical facts has held that TDS is not required to be deducted on purchase of traded goods. Based on the above, I am of the opinion that the provisions of Chapter XVII B of the Act cannot be said to be applicable on purchase of finished/traded goods Accordingly, there is no default on the part of tile Appellant in complying with the provisions of Chapter XVII-B of the Act while making payment for purchase of finished/traded g0o.dS without deducting tax at source This ground of appeal is allowed in favour of the appellant . 2. Purchase of Packing Material: 13. I have perused the facts of the case as well as the submissions of the appellant. I am of the opinion that this ground is covered in favour of the Appellant by the decision of jurisdictional High Court in the case of BDA Ltd vs. Income Tax Officer (TDS) 281 ITR 99 (Bom.) wherein the Hon'ble High Court has held that TDS is not required to be deducted under section 19cC on purchase of packing material. Based on the above, I am of the opinion that the provisions of Chapter XVII-B of the Act cannot be said to be applicable on purchase of packing material. Accordingly, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed the principles established by the Hon'ble High Court in the case of BDA Ltd vs. Income Tax Officer (TDS) 281 ITR 99 (Bom.) and CIT vs. Glenmark Pharmaceuticals Ltd, 324 ITR 199. Since the issues are crystallized in favour of assessee by the orders of the jurisdictional High Court, respectfully following the same we affirm the order of the CIT (A). 9. Respectfully following the above findings of the Tribunal in the own case of assessee, we affirm the order of the CIT(A) on this issue. 10. Ground Nos.9 10 relate to the levy of interest u/s.201(1A). Since we have dismissed the ground of revenue with regard to disallowance made on account of non-deduction of TDS on the above issues, therefore, no interest is required to be levied u/s.201(1A) of the Act. 11. Now, coming to the cross objection of the assessee, the assessee in his cross objection has stated that two separate orders were passed by the AO u/s.201 r.w.s.40(a)(ia) relating to A.Y.2009-2010. The first order was dated 25-3-2011 and the second order was dated 29-3-2011. The contention of ld. AR has been that the issue and the amounts involved relating to non-deduction of TDS at source on the year-end provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
