2017 (3) TMI 955

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....Brief facts of the case are that the assessee is a joint venture of Sri MVV Satyanarayana, an individual and Aliens Developer Pvt. Ltd. The JV entrusted the entire work to one of the constituents - M/s Aliens Developers Pvt. Ltd. Assessee filed the return of income for the AY 2011-12 on 30/09/2011 admitting total income of Rs. 35,000/-. The case was selected for scrutiny and notice u/s 143(2) of the Income-tax Act (in short 'the Act') was issued on 01/08/2012 and the same was served on the assessee on 02/08/2012. During the course of assessment proceedings, the AO disallowed the entire payment made to M/s Aliens Developers Pvt. Ltd. holding that such payments are covered u/s 194C of the Act, for which the assessee has failed to deduct tax. ....

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..... 6,78,11,398/- an amount of Rs. 5,67,16,736/- was already paid. Therefore, in view of the following decisions, the provisions of Sec. 40(a)(ia) have no application to the facts of the petitioner's case. (i) The decision of the Visakhapatnam Special bench in the case of Merilyn Shipping & Transports Vs. ACIT, Range-1, Visakhapatnam vide order in ITA No. 477/Viz/2008 dt. 29.03.2012 reported in 136 ITO 23 (ii) The decision of the Hon'ble ITA T, Bangalore Bench-B in the case of Deputy Commissioner of Income Tax, Circle-1, Udupi Vs Ananda Maraka/a reported in (2014) 48 taxmann.com 402 (Bngalore- Tri) "It is further submitted that the recipient i.e. Aliens Developers Pvt. Ltd. is assessed to income tax. They admitted the amount ....

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....basis. 5. Aggrieved with the above order the revenue is in appeal before us raising the following grounds of appeal: (1) Whether on the facts and in the circumstances of the case, the CIT(A) is correct in deleting the addition of Rs. 6,78,46,398/- made towards disallowance U/s. 40(a)(ia) of the Income Tax Act, stating that the provisions of Section 194(C) are not applicable to the Joint Venture when the Joint Venture has not executed any work and either of the constituents only executed the work on back to back basis? (2) Whether on the facts and in the circumstances of the case, the CIT(A) was right in holding that the amount paid by the Joint Venture to its constituent for executing the work awarded to the JV as payment not cover....

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.... the legislature has chosen to use the expression against such order or any part thereof which means that cross-objections can be filed with reference to same ground of appeal which is adversely decided against the respondent in appeal. If there has been no adjudication on any of the grounds of appeal raised before the CTT(A). the cross-objections cannot be filed on such a ground, though raised but not decided specifically. If the assessee is aggrieved by non-adjudication per se, assessee can come before the Tribunal only by way of an appeal only. Thus, having regard to plain provisions of statute, in absence of nonadjudication of ground by the CIT(A), assessee can come only by way of appeal before the Tribunal. not by way of crossobjection....