TaxTMI 
TaxTMI 
2015 (8) TMI 313
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....ed u/s. 143(3) by the A.O. after application of mind to the provisions of sec. 40(a)(ia) of the Act and also the TDS provisions, therefore again reopening of assessment on same set of facts merely on change of opinion is bad in law. 2. The learned CIT(A) failed to appreciate that reopening of assessment was based on mere change of opinion as there were no new facts or tangible material before the A.O. to come to a conclusion that there is escapement of income. 3. The learned CIT(A) erred in upholding the disallowance of depository charges paid of Rs. 6,27,423/- u/s. 40(a)(ia) of the Act without appreciating that depository charges paid was not for technical services therefore provisions of Sec. 194C/194J were not applicable. 4. The learn....
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....payments because these are not for technical services/for execution of work. The AO, however, in the reassessment proceedings, was of the opinion that the payments made to the Stock Exchange, by whatever name called, are technical service falling within the purview of section 194J and 194C and the assessee having not deducted tax he invoked provisions of section 40(a)(ia) of the Act. The learned CIT(A) affirmed the action of the AO and thus the assessee preferred an appeal before us. 4. The case of the learned counsel for the assessee is that: (a) reopening of assessment on same set of disallowance, which was made in the original assessment proceedings would amount to change of opinion, which is not permissible under law, (b) depository ch....
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....a) can be attracted? On this issue this very Bench, in the case of Amit Naresh Shah (ITA No. 4154/Mum/2013), had taken a consistent stand that in the light of the decision rendered by Hon'ble Supreme Court, in the form of dismissal of Revenue's SLP in the case of Vector Shipping Services (P) Ltd. section 40(a)(ia) is not applicable with reference to payments already made since the expression 'payable' has to be satisfied for invoking provisions of section 40(a)(ia). The Bench, in the aforecited decision, observed in this regard as under: - "4. Before us, Departmental Representative(DR) stated that order of the Special Bench delivered in the case of Merilyn Shipping & Transports (supra)has been kept in abeyance of the Hon'ble Andhra....
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....he Court, it is binding on all the benches of the Tribunal. We find that Hon'ble Court has held that judicial discipline mandates that the decision of the special bench has to be followed by other benches. As on today, the stay order granted by the Hon'ble Court has been vacated and the order of the special bench is binding on other benches of the Tribunal. Therefore, respectfully following the same, we hold that the FAA was justified in following the order of Marilyn Shipping & Transport (supra). Considering the facts of the case and the clarification issued by the Hon'ble Andhra Pradesh High Court on 24.06.2014 in the case of Janapriya Engineers Syndicate, we decide the effective ground of appeal in favour of the assessee and conf....