INCOME TAX ACT, 1961

Sedction 254(2)

Rectification under section 254(2) - Mistake apparent - Assessee pleaded non-consideration by ITAT of case law cited by assessee -

Assessee by way of miscellaneous application filed under section 254(2) sought rectification of order passed by Tribunal confirming disallowance made by AO of payment made to ex-employee for want of TDS under section 194H. Assessee submitted that although, assessee had supported its arguments in light of the decision of jurisdiction High Court in the case of CIT v. Kotak Securities Ltd. 92011) 203 Taxman 86 (Bom) : 2011 TaxPub(DT) 1954 (Bom-HC) but Tribunal had not considered said decision, while deciding the issue on merits and said mistake constituted a mistake apparent from the record, to be rectified under section 254(2).Held: Tribunal had recorded categorical findings, insofar as, disallowances of amount paid to Mr. Mohla, an ex-employee for non deduction of tax at source under section 194H that payment made in the nature of commission, and assessee was required to deduct tax at source under section 194H. Since assessee failed to deduct tax at source Tribunal concluded that there was no error in disallowances under section 40(a)(ia). Further, Tribunal had considered various case laws cited by assessee, including decision of CIT v. Kotak Securities Ltd., (2011) 203 Taxman 86 (Bom) while adjudicating the issue and found that facts of those cases were not applicable to facts of assessees case and hence, were not specifically discussed. Further, it was not necessary to discuss each and every decision cited by parties in the body of order. If Bench had taken a view that case laws cited by parties were not relevent to the issue, then those case laws which were not relevent could not be considered at all. Therefore, assessee had failed to make out a case of prima facie mistake apparent on record from the order of Tribunal, which can be rectified under section 254(2). Accordingly miscellaneous application filed by assessee was dismissed.

REFERRED :

FAVOUR : Against the assessee.

A.Y. : 2008-09

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