2016 (8) TMI 742

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..... bstitution by Finance Act 2009 before the Tribunal, if necessary by producing additional materials also. It is also ordered that on consideration of the said contention, if the Tribunal finds that factual adjudication is necessary, it would be open to the Tribunal to remit the matter to the Assessing Officer for reconsideration.
ANTONY DOMINIC AND P.V.ASHA, JJ. FOR THE APPELLANT : ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI (TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX FOR THE RESPONDENT : ADV. SRI.T.M.SREEDHARAN (SR.), ADV. SRI.V.P.NARAYANAN, ADV. SMT.BOBY M.SEKHAR, ADV. SMT.DIVYA RAVINDRAN JUDGMENT Antony Dominic, J. These appeals are filed by the Revenue challenging the orders of the Income Tax Appellate Tribunal, Cochin Bench in ITA Nos .....

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..... eals is the order passed by the Special Bench of the Tribunal in Merilyn Shipping & Transport case (supra). This order passed by the Tribunal has already been held to be incorrect by the Gujarat High Court in the judgment Commissioner of Income Tax v. Sikandarkhan N. Tunvar [2013] 357 ITR 312 (Guj). Considering an almost similar case, this court has followed the Gujarat High Court judgment in the judgment in the I.T.A.No.278/14, where this court held thus: "Another contention that was pressed into service was that the appellants had already paid the amount and therefore, the provisions of Section 40(a)(ia), applicable only in respect of the amount which remains to be payable on the last day of the financial year, is not attracted. Therefor .....

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..... stitution by Finance Act 2 of 2009 and according to the assessees, going by the said provision they had no liability to deduct tax. However, we find that such a contention was not raised or considered by the Tribunal and, therefore, we are not inclined to consider the contention now urged before us. 7. According to us, having regard to the judgment of the Gujarat High Court in Merilyn Shipping & Transport case (supra) and the judgment of this court in I.T.A.No.278/14, the orders of the Tribunal has to be set aside and the matter has to be remitted to the Tribunal for fresh consideration. It is also clarified that if the assessees so desire, it would be open to them to claim the benefit of Section 194(C)(3) as it stood prior to its substitu .....

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