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PSLR Engineers Pvt. Ltd., B-74, Builders Area, Mitra Society, Greater Noida. Vs. ITO,Ward 14 (1), New Delhi.
December, 12th 2013
                                                                   ITA No.4412/Del/2010


                   IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCHES : F : NEW DELHI

          BEFORE SHRI G.D. AGRAWAL, HON'BLE VICE PRESIDENT
                                  AND
                   SHRI A.D. JAIN, JUDICIAL MEMBER

                              ITA No.4412/Del/2010
                            Assessment Year : 2007-08


PSLR Engineers Pvt. Ltd.,            Vs.        ITO,
B-74, Builder's Area,                           Ward 14 (1),
Mitra Society,                                  New Delhi.
Greater Noida.

PAN : AADCP2324G

  (Appellant)                                       (Respondent)


                Assessee By            :       Shri Tapas Ram Misra,
                                               Advocate
                Department By          :       Ms Y. Kakkar, Sr. DR


                                     ORDER



PER A.D. JAIN, JUDICIAL MEMBER:

     This is Assessee's appeal for Assessment Year 2007-08 against the
order dated 20.07.2010, passed by the CIT (A)-XVII, New Delhi, taking the
following grounds:-

     "1.     That on the facts and in the circumstances of the case, the
     impugned ex parte order of the CIT (A) is vague, based on incorrect
     appreciation of facts, passed in undue haste without affording
     adequate and proper opportunity of hearing, had in law, and void ab
     initio.

     2.    That on the facts and in the circumstances of the case, the CIT
     (A) erred on facts and in law in confirming the disallowance of

                                           1
                                                                  ITA No.4412/Del/2010


      Rs.49,88,608/- on account of alleged failure to deduct tax on the
      payment of Rs.48,38,330/- made to sub-contractor and Rs.1,50,278/-
      for job work.




      2.1    That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in not appreciating that the Assessing
      Officer had assumed Rs.48,38,330/- to be the payment made to sub
      contractors without TDS without any basis whatsoever.

      2.2    That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in not appreciating that the tax audit
      report did not record or recommend any disallowance u/s 40 (a) (ia).

      2.3    That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in not appreciating that there was nothing
      on record that could justify disallowance of Rs.1,50,278 to job workers
      and that the Assessing Officer had brought nothing on record to
      suggest that any tax was deductible (and not deducted) from the
      same.

      3.     That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in taking into account the grounds of
      appeal wrongly filed by the appellant's chartered accountant and not
      affording the appellant an opportunity to submit rectified grounds of
      appeal.

      4.    That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in completely ignoring the written
      submission filed by the appellant's representative, even though the
      same was reproduced in the impugned order.

      5.     That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in confronting the appellant with the
      grounds as reproduced in the impugned order even though the same
      prima facie differed with the appellant's statement of facts and the
      reply submitted by the appellant's representative.

      6.    That on the facts and in the circumstances of the case, the CIT
      (A) erred on facts and in law in not accepting the appellant's
      contention that the contractee having paid subcontractors directly, the
      appellant was not responsible under section 194C of the Act for
      deduction of tax."

2.    The assessee has filed an application for additional evidence,
contending therein, inter alia, that:


                                         2
                                                                  ITA No.4412/Del/2010


     "During the year the Applicant has executed a project for construction
     of effluent treatment plant for Meat Products India Ltd., Kerala (a Govt.
     of Kerala Undertaking). The said contractee had made direct payments
     to the sub-contractors as per advice of their consultants. The
     Applicant, not being the person making payment to sub-contractors,
     consequently had no liability to deduct tax at source as the same lay
     with the contractee who made payments.

     The same facts were explained to the Assessing Officer but the
     Assessing Officer did not appreciate the facts and circumstances and
     made a disallowance of Rs.48,38,330/- under section 40(a)(ia) of the
     Act. This sum included Rs.22,98,330/- payable towards purchase of
     material on which tax was not required to be deducted. In addition,
     some disallowance was made under section 40A (3) of the Act, too.

     Against the assessment order the Assessee appealed before CIT
     (Appeals). Unfortunately, unknown to the assessee, its Authorised
     Representative failed to appear before the CIT (Appeals) on the
     appointed date and that caused the CIT (Appeals) to dismiss the
     appeal ex-parte without taking into account pertinent facts of the case.

     At the time of filing an Appeal before the Hon'ble Tribunal, the
     Appellant, acting under advice of its counsel, sought details and
     confirmation from the contractee (M/s Meat Products India Limited)
     about direct payment to sub-contractors and also invoices and
     confirmations for payment made for purchase of materials."

3.    The ld. Counsel for the assessee contends that the assessee, in fact,
did not get any effective opportunity before the Ld. CIT (A), since its
authorized representative did not put in appearance before the Ld. CIT (A),
for which reason the Ld. CIT (A) dismissed the assessee's appeal ex parte. It
has been submitted that accordingly, the matter be remitted to the
Assessing Officer for fresh adjudication on taking into consideration the
additional evidence now filed.

4.   As opposed to this, the Ld. DR has contended that before the Ld. CIT
(A) the assessee was guided by an auditor and not one, but many
opportunities were provided by the Ld. CIT (A) to the assessee, as is evident
from the impugned order; however, the assessee failed to do the needful






                                        3
                                                               ITA No.4412/Del/2010


before the Ld. CIT (A); and that therefore, the assessee's appeal needs to be
dismissed.

5.        Having considered the matter, we find that the appeal of the assessee
was decided by the Ld. CIT (A) ex parte qua the assessee. This, according to
the assessee's application for additional evidence, happened since the
Authorised Representative of the assessee failed to put in appearance before
the Ld. CIT (A). From this, it is evident that the assessee was not able to avail
proper opportunity before the Ld. CIT (A) to represent the matter. In our
considered opinion, it would be in the fitness of things, since the assessee
has now filed additional evidence before us, that the matter may be remitted
to the Ld. CIT (A) to be decided afresh in accordance with the law on merit,
on affording due and proper opportunity of hearing to the assessee. The
assessee, no doubt, shall cooperate in the proceedings before the Ld. CIT (A).
Ordered accordingly.

6.        In the result, the appeal of the assessee is treated as allowed for
statistical purposes.

7.        The order pronounced in the open court on 05.12.2013.

               Sd/-                                            Sd/-

          [G.D. AGRAWAL]                                    [A.D. JAIN]
          VICE PRESIDENT                                 JUDICIAL MEMBER


Dated, 05th December, 2013.

dk

Copy forwarded to:

     1.   Appellant
     2.   Respondent
     3.   CIT
     4.   CIT (A)
     5.   DR, ITAT
                                                          AR, ITAT, NEW DELHI.

                                         4

 
 
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