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Income Tax Appellate Tribunal, LUCKNOW BENCH ‘B’, LUCKNOW
Before: SHRI A. D. JAIN & SHRI T. S. KAPOOR
PER T. S. KAPOOR, A.M.
This is an appeal filed by the assessee against the order of learned CIT(A)-II, Kanpur dated 08/03/2017 pertaining to assessment years 2013- 14.
Learned counsel for the assessee, at the outset, submitted that the assessee had taken four grounds of appeal. However, vide application dated 14/09/2021, ground Nos. 1 to 3 were withdrawn therefore, the only
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ground to be decided by the Tribunal is ground No. 4. Learned counsel for the assessee submitted that the Assessing Officer had made addition aggregating to Rs.8,43,92,282/- for not deducting tax on air and sea freight and on an appeal filed by the assessee, the learned CIT(A) directed the Assessing Officer to recalculate the demand under respective section of 194 read with first proviso to section 201 by holding that the assessee had accepted this direction during the course of appellate proceedings. Learned counsel for the assessee in this respect submitted that the assessee never accepted before learned CIT(A) to remit the matter back to the Assessing Officer for recalculation of the liability and rather detailed submissions were made before him and on which the learned CIT(A) should have decided himself. Learned counsel for the assessee in this respect invited our attention to the copy of notarized affidavit duly sworn in by the Authorised Representatives of the assessee wherein they have affirmed that they never accepted during the course of hearing before the learned CIT(A) for remitting the matter back to the Assessing Officer. Learned counsel for the assessee further submitted that on an earlier hearing, when the matter was heard on 14/09/2021 and wherein the then learned D.R. on the basis of records of learned CIT(A), had affirmed that A.R. of the assessee had not given any acceptance for remitting the matter to the Assessing Officer. Therefore, it was prayed that the ground No. 4 may be remitted back to learned CIT(A) for his findings on the submissions made by the assessee.
Learned D. R., when confronted regarding the submissions of Learned counsel for the assessee that the then CIT, D.R., on the basis of inspection of CIT(A)’s file had affirmed that no such acceptance was there on the record, was asked whether he wanted to verify from record to which he
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stated that he do not have any objection if the matter is remitted back to learned CIT(A).
We have heard the rival parties and have gone through the material placed on record. We find that the assessee had originally taken four grounds of appeal out of which ground No. 1 to 3 have been withdrawn vide petition dated 14/09/2021. The only ground for adjudication before us is ground No. 4, which for the sake of completeness is reproduced below:
“4. That on the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that no tax has been deducted by the appellant on Air and Sea Freight aggregating to INR 84,392,282, and thus making the appellant as assessee in default pertaining to these payments. Learned CIT(A) has erred in giving the above findings without first establishing the applicability of withholding tax provisions on these payments. Further the learned CIT(A) has erred in directing the Assessing Officer to recalculate the demand under respective section of 194 of the Act read with first proviso to section 201 of the Act and holding that the appellant has accepted this direction during the course of appellate proceedings.”
4.1 We find that the case was earlier heard on 14/09/2021 but the order could not be dictated within a period of three months therefore, the case was refixed for fresh hearing. We find that only grievance of the assessee is that learned CIT(A) wrongly remitted the matter back to the Assessing Officer by holding that assessee had no objection if the matter was remanded to Assessing Officer. We find that learned Authorized Representatives of the assessee had filed affidavit placed at pages 184 to 191 wherein they have sworn in that no such admission was made before learned CIT(A) for remitting the matter back to the Assessing Officer and further we find that even learned CIT, D.R. had no objection if the matter is
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remitted back to learned CIT(A) for his findings on the issue. Therefore, in view of the above, ground No. 4 is remitted back to learned CIT(A) who should decide the issue himself on the basis of submissions made by the assessee before him.
Ground No. 1 to 3 are dismissed as withdrawn.
In the result, the appeal of the assessee stands partly allowed.
(Order pronounced in the open court on 03/02/2022)
Sd/. Sd/. ( A. D. JAIN ) ( T. S. KAPOOR ) Vice President Accountant Member
Dated:03/02/2022 *Singh
Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Assistant Registrar