Haryana Renewable Energy Development Agency, Chandigarh V. ITO, Panchkula

CO 76/CHANDI/2011

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1178 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 8 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 27-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNIL VERMA
• Assessee Lawyers: RAKESH KUMAR KHANNA
• Keywords: Reopening of assessment
• Section: 12AA; 148; 12; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.896/CHD/2009 (ASSESSMENT YEAR : 2006-07) THE INCOME TAX OFFICER, VS. HARYANA RENEWABLE ENERGY WARD 3, DEVELOPMENT AGENCY,(HAREDA), PANCHKULA. SCO 48, SECTOR 26, CHANDIGARH. PAN: AAALH0149K ITA NO.1046/CHD/2011 (ASSESSMENT YEAR : 2004-05) THE INCOME TAX OFFICER, VS. HARYANA RENEWABLE ENERGY WARD 3, DEVELOPMENT AGENCY,(HAREDA), PANCHKULA. SCO 48, SECTOR 26, CHANDIGARH. PAN: AAALH0149K AND C.O.NO.75/CHD/2011 ARISING OUT OF ITA NO. 1046/CHD/2011 (ASSESSMENT YEAR : 2004-05) HARYANA RENEWABLE ENERGY VS. THE INCOME TAX OFFICER, DEVELOPMENT AGENCY,(HAREDA), WARD 3, SCO 48, SECTOR 26, CHANDIGARH. PANCHKULA. PAN: AAALH0149K ITA NO.1047/CHD/2011 (ASSESSMENT YEAR : 2005-06) THE INCOME TAX OFFICER, VS. HARYANA RENEWABLE ENERGY WARD 3, DEVELOPMENT AGENCY,(HAREDA), PANCHKULA. SCO 48, SECTOR 26, CHANDIGARH. PAN: AAALH0149K 2 AND C.O.NO.76/CHD/2011 ARISING OUT OF ITA NO. 1047/CHD/2011 (ASSESSMENT YEAR : 2005-06) HARYANA RENEWABLE ENERGY VS. THE INCOME TAX OFFICER, DEVELOPMENT AGENCY,(HAREDA), WARD 3, SCO 48, SECTOR 26, CHANDIGARH. PANCHKULA. PAN: AAALH0149K ITA NO.1310/CHD/2010 (ASSESSMENT YEAR : 2007-08) THE INCOME TAX OFFICER, VS. HARYANA RENEWABLE ENERGY WARD 3, DEVELOPMENT AGENCY,(HAREDA), PANCHKULA. SCO 48, SECTOR 26, CHANDIGARH. PAN: AAALH0149K AND C.O.NO.50/CHD/2010 ARISING OUT OF ITA NO. 1310/CHD/2010 (ASSESSMENT YEAR : 2007-08) HARYANA RENEWABLE ENERGY VS. THE INCOME TAX OFFICER, DEVELOPMENT AGENCY,(HAREDA), WARD 3, SCO 48, SECTOR 26, CHANDIGARH. PANCHKULA. PAN: AAALH0149K ITA NO.1048/CHD/2011 (ASSESSMENT YEAR : 2008-09) THE INCOME TAX OFFICER, VS. HARYANA RENEWABLE ENERGY WARD 3, DEVELOPMENT AGENCY,(HAREDA), PANCHKULA. SCO 48, SECTOR 26, CHANDIGARH. PAN: AAALH0149K 3 AND C.O.NO.77/CHD/2011 ARISING OUT OF ITA NO. 1048/CHD/2011 (ASSESSMENT YEAR : 2008-09) HARYANA RENEWABLE ENERGY VS. THE INCOME TAX OFFICER, DEVELOPMENT AGENCY,(HAREDA), WARD 3, SCO 48, SECTOR 26, CHANDIGARH. PANCHKULA. PAN: AAALH0149K ITA NO.5/CHD/2013 (ASSESSMENT YEAR : 2009-10) THE INCOME TAX OFFICER, VS. HARYANA RENEWABLE ENERGY WARD 3, DEVELOPMENT AGENCY,(HAREDA), PANCHKULA. SCO 48, SECTOR 26, CHANDIGARH. PAN: AAALH0149K AND C.O.NO.7/CHD/2013 ARISING OUT OF ITA NO. 5/CHD/2013 (ASSESSMENT YEAR : 2009-10) HARYANA RENEWABLE ENERGY VS. THE INCOME TAX OFFICER, DEVELOPMENT AGENCY,(HAREDA), WARD 3, SCO 48, SECTOR 26, CHANDIGARH. PANCHKULA. PAN: AAALH0149K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH KUMAR KHANNA RESPONDENT BY : SHRI SUNIL VERMA, DR DATE OF HEARING : 02.09.2015 DATE OF PRONOUNCEMENT : 24.09.2015 4 O R D E R PER RANO JAIN, A.M . : THESE SIX APPEALS FILED BY THE DEPARTMENT AND FIVE CROSS OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LEARNED COMMISSIONER OF INCO ME TAX (APPEALS), PANCHKULA DATED 15.6.2009 FOR ASSESS MENT YEAR 2006-07, DATED 26.8.2011 FOR ASSESSMENT YEARS 2004- 05, 2005-06 AND 2008-09, DATED 13.9.2010 FOR ASSESS MENT YEAR 2007-08 AND DATED 19.10.2012 FOR ASSESSMENT Y EAR 2009-10. SINCE THE ISSUES ARE COMMON AND THE BASE ORDER IS FOR ASSESSMENT YEAR 2006-07 IN WHICH THE L EARNED CIT (APPEALS) HAS GIVEN DETAILED FINDINGS ON WHICH THE LEARNED CIT (APPEALS) IN OTHER YEARS HAVE PLACED RE LIANCE. THEREFORE, WE ARE ADJUDICATING THE APPEAL IN ITA NO.896/CHD/2009 FOR ASSESSMENT YEAR 2006-07 FIRST. ITA NO.896/CHD/2009 : 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAR YANA RENEWABLE ENERGY DEVELOPMENT AGENCY WAS INCORPORATE D IN 1997 AND WAS REGISTERED AS A SOCIETY ON 30.5.1997. THE OBJECTS OF THE ASSESSEE ARE TO POPULARIZE, PROMOTE AND IMPLEMENT THE APPLICATION OF VARIOUS TYPES OF NEW A ND RENEWABLE SOURCES OF ENERGY IN THE STATE. ITS INCO ME COMPRISES GRANTS, INTEREST AND MISCELLANEOUS RECEIP TS. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE FILED RE TURN DECLARING NIL INCOME AS ON 31.7.2007 CLAIMING ITS I NCOME TO BE EXEMPT. 5 3. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE I S AN AOP AS PER SECTION 2(31)(V) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HE WAS OF THE VIEW THAT ITS INCOME IS LIABLE TO TAX IF IT DOES NOT FULFILL NECESSARY CONDITIONS LAID DOWN UNDER SECTIONS 11 AND 12 OF THE ACT. THE ASSESSING OFFIC ER FURTHER MENTIONED THAT SINCE THE OBJECTS OF THE ASSESSEE SO CIETY ARE OF GENERAL PUBLIC UTILITY, IT WAS MANDATORY FOR THE AS SESSEE TO APPLY FOR AND OBTAIN REGISTRATION UNDER SECTION 12 AA OF THE ACT. SINCE THE ASSESSEE HAS NOT MENTIONED HOW ITS INCOME IS EXEMPT, THE ASSESSING OFFICER MADE ASSESSMENT AT AN INCOME OF RS.25,94,783/-, WHICH INCLUDES INCOME ON ACCOUNT OF USER SHARE AMOUNTING TO RS.2,10,03,884/-, BANK INTEREST AMOUNTING TO RS.45,91,319/- AND MISCELLANEOUS INCOM E OF RS.3,09,580/-. THE LEARNED CIT (APPEALS) DELETED A LL THESE ADDITIONS. AGGRIEVED BY THIS ORDER, THE DEPARTMEN T HAS COME IN APPEAL BEFORE US. 4. THE FIRST GROUND RAISED BY THE DEPARTMENT READS AS UNDER : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) WAS RIGHT IN HOLDING THAT USER SHARE IS NOTHING BUT A MARGIN CONTRIBUTED BY THE USER OF THE RENEWABLE AND ALTERNATIVE SOURCE OF ENERGY FOR THE FACILITY PRO VIDED BY THE ASSESSEE FOR WHICH SUBSIDY IS PROVIDED BY GOVT. THRO UGH GRANTS WHEN THE RECEIPTS AND PAYMENT ACCOUNT AND THE BALAN CE SHEET DO NOT DEPICT SUCH RECEIPTS/ASSETS TO BE FRAMING PART OF GRANTS IN AID AND ALSO NO UTILIZATION CERTIFICATES ISSUED WITH IN THE STIPULATED PERIOD? 6 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSING OFFICER NOTICED THAT THE GRANTS RECEIVED BY THE ASSESSEE AMOUNTING TO RS.2,10,03,884/- INCLUDES REC EIPT ON ACCOUNT OF USER SHARE IN RESPECT OF WHICH THE NATUR E AND UTILITY OF THE SAME TOWARDS THE AIMS AND OBJECTS OF THE ASSESSEE SOCIETY HAVE NOT BEEN EXPLAINED. NO DETAI LS OF THE SAME WERE PROVIDED SO AS TO CONSIDER THE SAME TO BE FORMING PART OF THE GRANTS. AS SUCH, THE ADDITION OF RS.2, 10,03,884/- WAS MADE BY THE ASSESSING OFFICER. 6. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE SUBMITTED THAT THE USER SHARE IS NOTHING BUT A MARG IN CONTRIBUTED BY THE USER OF THE RENEWABLE AND ALTERN ATIVE SOURCE OF ENERGY FOR THE FACILITIES PROVIDED BY THE ASSESSEE FOR WHICH SUBSIDY IS PROVIDED BY THE GOVERNMENT THROUGH GRANTS TO THE ASSESSEE. IT WAS FURTHER EXPLAINED THAT SI NCE NOTHING OUT OF THE USER SHARE IS LEFT OVER AND THE ENTIRE A MOUNT GETS SPENT OR UTILIZED ALONG WITH THE GRANT, IT IS NOT A TAXABLE RECEIPT. THE ASSESSEE ALSO EXPLAINED THAT THE GOVE RNMENT OF INDIA AND HARYANA GOVERNMENT ARE PROMOTING THE USE OF RENEWABLE ENERGY TO BRIDGE THE DEMAND AND SUPPLY GA P OF ENERGY. THEREFORE, THE GOVERNMENT OF INDIA AND HA RYANA GOVERNMENT PROVIDE FINANCIAL ASSISTANCE TO THE ASS ESSEE FOR IMPLEMENTING VARIOUS SCHEMES UNDER SUBSIDY. THE AS SESSEE TRIES TO MAKE THE FUNDING PATTERN IN SUCH A WAY THA T THE RENEWABLE ENERGY DEVICES ARE AFFORDABLE TO THE PUBL IC AND COMPETE WITH THE COST OF CONVENTIONAL DEVICES. FR OM THIS BACKGROUND AND SCHEME ANNOUNCED BY THE GOVERNMENT O F 7 INDIA OR STATE GOVERNMENT AND ACTIVITIES OF THE ASS ESSEE EXPLAINED IN DETAILS WITH SUPPORTING DOCUMENTS, THE LEARNED CIT (APPEALS) WAS CONVINCED AND HELD THAT THE USER SHARE IS NOTHING BUT A PART OF THE COST OF THE RENEWABLE ENE RGY DEVICES RECOVERED FROM THE CONSUMERS, THE REST BEING MET BY WAY OF SUBSIDY FROM THE GOVERNMENTS. SINCE IT IS ONLY RE COVERY OF PART OF THE COST ALREADY INCURRED BY THE ASSESSEE, IT CANNOT BE TERMED AS TAXABLE INCOME BY ANY STRETCH OF IMAGINAT ION. THIS WAY, THE LEARNED CIT (APPEALS) DELETED THE ADDITION ON ACCOUNT OF USER SHARE MADE BY THE ASSESSING OFFICER. 7. THE LEARNED D.R. REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER, BEFORE US. 8. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE ARGU ING BEFORE US PLACED RELIANCE ON THE ORDER OF THE LEARN ED CIT (APPEALS). AS PER HIM, THE LEARNED CIT (APPEALS) HAS GIVEN A DETAILED REASONING TO THE EFFECT THAT THERE IS NO E LEMENT OF INCOME TO BE TAXED IN THE AMOUNT RECEIVED AS USER S HARE. IT WAS SUBMITTED THAT THE USER SHARE MEANS THAT PART O F TOTAL COST OF SOLAR DEVICE WHICH IS TO BE BORNE BY THE UL TIMATE BENEFICIARY OF THAT DEVICE FOR POPULARIZATION OF RE NEWABLE ENERGY IN HARYANA ON SUBSIDIZED RATES. WITH THE HE LP OF SOME EXAMPLES, IT WAS SHOWN TO US THAT THE USER SHARE IS ONLY PART OF THE COST OF THE DEVICES WHICH ARE BORNE BY THE U LTIMATE BENEFICIARY. FOR THIS, COPIES OF CERTAIN WORKS OR DER AND PRINTOUTS FROM THE WEBSITE OF THE ASSESSEE DEPARTME NT WERE SHOWN TO US TO BRING HOME THE FACT THAT THERE IS NO ELEMENT OF INCOME IN THIS PART OF USER SHARE. IT WAS ALSO SU BMITTED THAT 8 A SUBSIDY PATTERN ALONGWITH USER SHARE IS APPROVED BY THE GOVERNMENT IN THE AIMS AND OBJECTS PLAN OF RENEWABL E ENERGY DEPARTMENT. THE USER SHARE IS FIXED ON THE BASIS OF THE COST OF THE SOLAR DEVICE. IN MOST OF THE CASES, THE ST ATE GOVERNMENT PROVIDES 30% OR MORE SUBSIDY ON THE SOLA R SYSTEM TO THE PUBLIC OF HARYANA THROUGH THE ASSESSEE. IN VIEW OF THIS, IT WAS PRAYED THAT THE ORDER OF THE LEARNED C IT (APPEALS) BE UPHELD. 9. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. WE D O NOT FIND ANY FALLACY IN THE ORDER OF THE LEARNED CIT (APPEAL S), WHEREBY HE HAS CONSIDERED THE SUBMISSIONS OF THE ASSESSEE I N GREAT DETAILS AND THEN HAS GIVEN THE FINDINGS. THE EXAM PLES GIVEN BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US C LEARLY SHOWS THAT IF THE COST OF SOLAR LIGHTING SYSTEM WAS RS.7177/-, THE STATE SUBSIDY AND CENTRAL SUBSIDY WAS RS.3000/- AND RS.2500/- RESPECTIVELY. ONLY THE BALANCE AMOUNT OF RS.1677/- WAS BORNE BY THE ULTIMATE USER OF THE SYS TEM AND THIS AMOUNT OF RS.1677/- WAS RECORDED AS USER SHARE IN THE BOOKS OF THE ASSESSEE. SIMILAR IS THE CASE WITH OT HER DEVICES ALSO. THIS IS ALSO A FACT ON RECORD THAT ALL THESE FACTS AND FIGURES ARE AS PER THE SCHEME ANNOUNCED BY THE CENT RAL GOVERNMENT OR THE STATE GOVERNMENT, THE ASSESSEE BE ING THE IMPLEMENTING AUTHORITY. IN THIS WAY, BY NO STRETC H OF IMAGINATION IT CAN BE SAID THAT THE USER SHARE IS A NY INCOME EARNED BY THE ASSESSEE OR ANY PART OF THIS USER SHA RE IS 9 INCOME EARNED BY THE ASSESSEE TAXABLE AS PER INCOME TAX ACT. SINCE THIS IS ONLY THE RECOVERY OF THE PART OF THE COST OF LIGHTING SYSTEM ALREADY INCURRED BY THE ASSESSEE, I T CANNOT BE TAXED IN ITS HANDS. THE ORDER OF THE LEARNED CIT ( APPEALS) IN THIS REGARD IS CONFIRMED. THE GROUND OF APPEAL NO. 1 IS DECIDED AGAINST THE REVENUE. 10. GROUND NOS.2 AND 3 RAISED BY THE REVENUE READ AS UNDER : 2. WHETHER ON THE FACTS AND OF THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN HOLDING THAT UNSPENT BALANCE OUT OF THE GRANTS/AMOUNT SANCTIONED IS RETURNED BACK ALONGWITH THE INTEREST THEREON WHEN THE ASSESSEE NEITHER UTILIZED NOR RETUR NED BACK THE GRANTS? 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, LD. CIT(A) WAS RIGHT IN HOLDING THAT INTEREST RECEIVED IS FULLY ACCOUNTABLE TO THE GOVT. AND IS ADJUSTED AGAINST FUTUR E GRANT AND IN CASE A PARTICULAR GRANT IS NOT SPENT/UTILIZED AND I S REFUNDED BACK TO THE GOVT., THE ASSESSEE IS OBLIGED TO REFUND THE SAME ALONGWITH APPROPRIATE AMOUNT OF INTEREST RECEIVED ON THE SAME, WHEN THE INCOME AND EXPENDITURE ACCOUNT AND BALANCE SHE ET AS ALSO THE ACCOUNTS SUBMITTED IN THE COURSE OF- ASSESSMENT PROCEEDINGS DO NOT SHOW SUCH ADJUSTMENTS EXCEPT FOR A SUM OF RS. 25 415/-? 11. THESE GROUNDS RAISED BY THE REVENUE RELATE TO TREATING OF INTEREST INCOME OF RS.45,91,319/- RECEI VED ON THE AMOUNT KEPT IN THE BANK AS TAXABLE INCOME. 12. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE H AS EARNED BANK INTEREST TO THE TUNE OF RS.45,91,319/-. SINCE THE INCOME OF BANK INTEREST EARNED IS NOT COVERED F OR 10 EXEMPTION UNDER ANY OF THE PROVISIONS OF INCOME TA X ACT, THE ASSESSING OFFICER MADE AN ADDITION OF RS.45,91,319/ -. 13. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE ARGUED THAT THE INTEREST RECEIVED IS FULLY ACCOUNTA BLE TO THE GOVERNMENT AND IS ADJUSTED AGAINST FUTURE GRANT AND IN CASE A PARTICULAR GRANT IS NOT SPENT OR UTILIZED AND IS REFUNDED BACK TO THE GRANT SANCTIONING AUTHORITY, THE ASSESS EE IS OBLIGED TO REFUND THE SAME ALONGWITH APPROPRIATE AM OUNT OF INTEREST RECEIVED ON THE SAME. THUS, THE AMOUNT OF INTEREST EARNED BY THE ASSESSEE AND EVEN THE UNUTILIZED AMOU NT OF GRANT BELONGS TO THE SANCTIONING AUTHORITY AND NOT TO THE ASSESSEE. THE ADDITION MADE BY THE ASSESSING OFFIC ER WAS DELETED BY THE LEARNED CIT (APPEALS). 14. THE LEARNED D.R. WHILE ARGUING BEFORE US EMPHASIZED ON THE FACT THAT THE INTEREST HAS BEEN E ARNED AND CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE. THE REFORE, IT HAS TO BE TAXED IN ASSESSEES HANDS ONLY. IN VIEW OF THIS, IT WAS PRAYED THAT THE ORDER OF THE LEARNED CIT (APPEA LS) IN THIS REGARD BE SET ASIDE AND THAT OF THE ASSESSING OFFIC ER BE UPHELD. 15. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATE D THE SUBMISSIONS MADE BEFORE THE LEARNED CIT (APPEALS). HE SUBMITTED THAT THE INTEREST SHOWN AS RECEIVED IS FU LLY ACCOUNTABLE TO THE GOVERNMENT AND IS ADJUSTED AGAIN ST FUTURE GRANT AND IN CASE A PARTICULAR GRANT IS NOT SPENT O R UTILIZED, IT IS REFUNDED BACK TO THE GRANT SANCTIONING AUTHORITY . THUS, 11 THE AMOUNT DOES NOT BELONG TO THE ASSESSEE BUT TO T HE SANCTIONING AUTHORITY ONLY. THEREFORE, THE SAME C ANNOT BE TAXABLE IN THE HANDS OF THE ASSESSEE. 16. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS, IT IS QUITE CLEAR THAT THE ASSESSEE HAS NOT EARNED ANY INCOME AND IS NOT GETTING ANY RECEIPT IN ITS HANDS. THE A SSESSEE IS ONLY GETTING GRANT FROM THE CENTRAL GOVERNMENT OR F ROM THE STATE GOVERNMENT FOR FINANCING THE SUBSIDY PART OF THE COST OF RENEWABLE ENERGY DEVICES. ANY SURPLUS OR UNUTILIZ ED AMOUNT BELONGS TO THE SANCTIONING AUTHORITY AND CAN BE REC EIVED BACK AT ANY TIME. WE DO NOT FIND ANYTHING WRONG IN THE FINDINGS OF THE LEARNED CIT (APPEALS) AS NO ADVERSE FACT OR MAT ERIAL WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER. EVEN B EFORE US, THE LEARNED D.R. HAS NOT BEEN ABLE TO BRING ANY SUC H FACT. IN VIEW OF THIS, WE UPHOLD THE FINDINGS GIVEN BY THE L EARNED CIT (APPEALS). THE GROUNDS OF APPEAL NOS. 2 AND 3 RAI SED BY THE REVENUE ARE DISMISSED. 17. THE GROUND NO.4 RAISED BY THE REVENUE READS AS UNDER : 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS RIGHT IN HOLDING THAT MISCELLANEOUS I NCOME RECEIVED AGAINST ISSUE OF TENDER PAPERS AND ALSO INCLUDES AMO UNT OF PENALTY, IF ANY, LEVIED ON DEFAULTERS FOR FAILURE/DELA Y IN CARRYING OUT THEIR WORK, IS UTILIZED AGAINST VARIOUS ADMINISTRATIVE A ND OTHER ACTIVITIES OF THE ASSESSEE, WHEN THE ASSESSEE HAS IT SELF ACCOUNTED FOR THE SUM OF RS. 309580/- AS MISCELLANEOUS INCOME NOT AS RECEIPT 12 BUT AS INCOME WHICH CLEARLY REVEAL THAT INCOME IS AFTE R MEETING OUT EXPENSES ATTRIBUTED TO THE RELEVANT INCOME? 18. THIS GROUND RELATES TO ADDITION OF RS.3,09,580 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF MISCELLANEOU S INCOME. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS, OBSERVED THAT THE AMOUNT OF MISCELLANE OUS INCOME IS RECEIVED BY THE ASSESSEE AGAINST THE ISSU E OF TENDER PAPERS AND ALSO INCLUDES THE AMOUNT OF PENALTY, IF ANY, LEVIED ON DEFAULTERS FOR FAILURE/DELAY IN CARRYING OUT THE IR WORK. IN THIS WAY, AN ADDITION OF RS.3,09,580/- WAS MADE BY THE ASSESSING OFFICER. 19. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE ARGUED THAT THE AMOUNT SO RECEIVED HAS BEEN UTILIZE D AGAINST VARIOUS ADMINISTRATION AND OTHER ACTIVITIES OF THE ASSESSEE. IT WAS ALSO ARGUED THAT THE ASSESSING OFFICER HAS I GNORED THE FACTS THAT THE AMOUNT HAS BEEN DULY SHOWN IN THE UT ILIZATION STATEMENT FORMING PART OF THE AUDITED ACCOUNTS ENCL OSED WITH THE INCOME TAX RETURN. AGREED WITH THE SUBMISSION OF THE ASSESSEE, THE LEARNED CIT (APPEALS) DELETED THE ADD ITION MADE BY THE ASSESSING OFFICER . 20. THE LEARNED D.R. RELIED UPON THE ORDER OF THE ASSESSING OFFICER IN THIS REGARD, WHILE THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LEARNED C IT (APPEALS). 21. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND 13 CONSIDERED THE MATERIAL AVAILABLE ON RECORD. WE A RE IN AGREEMENT WITH THE FINDINGS GIVEN BY THE LEARNED CI T (APPEALS). SINCE IT WAS SHOWN TO US THAT THE ASSES SEE HAS TAKEN INTO ACCOUNT THIS MISCELLANEOUS INCOME IN THE UTILIZATION STATEMENT FORMING PART OF THE AUDITED A CCOUNTS. THE SAID AMOUNTS WERE UTILIZED AGAINST VARIOUS ADMI NISTRATIVE AND OTHER ACTIVITIES OF THE ASSESSEE. SINCE THE MI SCELLANEOUS INCOME HAS BEEN TAKEN INTO ACCOUNT IN THE UTILIZATI ON STATEMENT, NOTHING REMAINS WITH THE ASSESSEE. SINC E NO INCOME REMAINS WITH THE ASSESSEE, THE SAID AMOUNT C ANNOT BE TAXED IN ITS HANDS. WE UPHOLD THE ORDER OF THE LEA RNED CIT (APPEALS) IN THIS REGARD. THE GROUND OF APPEAL NO. 4 RAISED BY THE REVENUE IS DISMISSED. 22. THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO.1046/CHD/2011 : ITA NO.1047/CHD/2011 : ITA NO.1310/CHD/2010 : ITA NO.1048/CHD/2011 : ITA NO.5/CHD/2013 : 23. IT IS RELEVANT TO OBSERVE HERE THAT THE FACTS AND CIRCUMSTANCES OF THESE CASES ARE SIMILAR TO THAT IN ASSESSMENT YEAR 2006-07 IN ITA NO.896/CHD/2009 AND THE FINDING S GIVEN IN ITA NO.896/CHD/2009 SHALL APPLY TO THESE CASES A LSO WITH EQUAL FORCE. 24. ALL THE SIX APPEALS OF THE REVENUE ARE DISMISS ED. 14 C.O.NO.75/CHD/2011 (IN ITA NO.1046/CHD/2011 ): 25. THE GROUND OF CROSS OBJECTION RAISED BY THE ASSESSEE READS AS FOLLOWS : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) P ANCHKULA HAS ERRED IN LAW AS WELL AS ON FACTS BY NOT ALLOWING GROUND NO. 6 TO 8 OF THE GROUNDS OF APPEAL, THEREBY NOT TREATING THE ORDER PASSED BY LD. AO AS WITHOUT JURISDICTION, ILLEGAL AND V OID IN THE ABSENCE OF NO SPEAKING ORDER HAVING BEEN PASSED, BEFO RE START OF SUCH PROCEEDINGS, BY LD. AO FOR THE OBJECTIONS RAISE D BY THE RESPONDENT AGAINST THE DEFECT AND MISPLACED REASONS TO BELIEF RECORDED BY LD. AO FOR INITIATING PROCEEDINGS U/S 1 48 OF THE I. T. ACT 1961, THEREBY WRONGLY UPHOLDING THE PROCEEDI NGS SO INITIATED U/S 148 WHICH MAY KINDLY BE ALLOWED. SINC E THE ORDER U/S 148 IS ILLEGAL AND VOID, ANY ASSESSMENT ORDER I SSUED BASED ON SUCH ILLEGAL AND VOID ORDER NEEDS TO BE QUASHED . 26. THE BRIEF FACTS OF THE CASE ARE THAT FROM A NO TE APPENDED TO THE AUDITED ACCOUNTS OF THE ASSESSEE, T HE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD EA RNED EXCESS OF INCOME OVER EXPENDITURE AMOUNTING TO RS.1,40,89,567/- SINCE NO RETURN OF INCOME OF THE RELEVANT ASSESSMENT YEAR WAS FURNISHED BY THE ASSESSEE. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE INCOME T O THE EXTENT OF RS.1,40,89,567/- HAS ESCAPED ASSESSMENT. AFTER RECORDING THE REASONS, THE ASSESSING OFFICER REOPEN ED THE CASE FOR THE RELEVANT ASSESSMENT YEAR BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. THE REPLY OF THE ASSESSEE WAS THAT SINCE IT HAD NOT RECEIVED ANY INCOME, THEREFORE, WA S NOT LIABLE TO FILE ANY RETURN OF INCOME. THE RETURN OF INCOME IN PURSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT WA S FILED 15 SHOWING NIL INCOME. THE ASSESSING OFFICER PROVIDED COPY OF REASONS RECORDED TO THE ASSESSEE. THE ASSESSEE FIL ED DETAILED OBJECTIONS AGAINST THE REASONS FOR REOPENING, WHICH WERE DULY DISPOSED OFF BY THE ASSESSING OFFICER. 27. THE ASSESSEE RAISED A GROUND AGAINST REOPENING OF ASSESSMENT UNDER SECTION 148 OF THE ACT BEFORE THE LEARNED CIT (APPEALS) AND REITERATED THAT THE ASSUMPTION OF JURISDICTION UNDER SECTION 148 OF THE ACT WAS WRONG LY ASSUMED BY THE ASSESSING OFFICER AS THE ASSESSEE WA S NOT LIABLE TO FILE ITS RETURN OF INCOME. THE LEARNED C IT (APPEALS) DEALT THE ISSUE AT PAGE 7 IN PARA 7.2 OF HIS ORDER, WHICH READS AS UNDER : 7.1 THE FACTS AS WELL AS THE SUBMISSIONS OF THE APPELLA NT HAVE BEEN CONSIDERED BY THE UNDERSIGNED. THE APPELLANT SOCIETY WAS CONST ITUTED UNDER THE SOCIETIES REGISTRATION ACT, 1860 TO POPULARIZE, PROMOTE AND I MPLEMENT THE APPLICATION OF VARIOUS TYPES OF NEW AND RENEWABLE SOURCES OF ENERG Y IN THE STATE. AS SUCH THE APPELLANT WAS A PERSON AS AN AOP UNDER THE I.T. ACT , 1961 FOR THE PURPOSES OF INCOME TAX ACT. THE INCOME OF THE APPELLANT IN THE FORM OF GRANTS, INTEREST AND MISCELLANEOUS INCOME WAS LIABLE TO TAX IT IS DID NO T FULFILL THE NECESSARY CONDITIONS U/S 11 & 12 OF THE ACT. THE SOCIETY WAS NEITHER REG ISTERED U/S 12AA NOR APPROVED U/S 10(23) OR APPROVED FOR CLAUSE (II) OF SUB SECTI ON 1 OF SECTION 35. TILL DATE THE APPELLANT HAS NOT GOT EXEMPTION U/S 10(23) OR 11 & 12 IN RESPECT OF ITS INCOME FROM SALE OF ENERGY SAVING DEVICES, INTEREST AND MISCELL ANEOUS INCOME. THE APPELLANT IS LIABLE TO INCOME TAX IN THE STATUS OF AOP. THE EXEMPTION IS NOT AUTOMATI C. THEREFORE, THE AO WAS RIGHT IN INITIATING PROCEEDINGS U/S 148 OF THE I.T. ACT. AS A RESULT GROUNDS NOS. 6 TO 8 ARE DISMISSED. 28. THIS WAY, THE REOPENING OF ASSESSMENT UNDER SE CTION 148 OF THE ACT WAS HELD TO BE LAWFUL BY THE LEARNED CIT (APPEALS). 16 29. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSE E REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AU THORITIES. 30. THE LEARNED D.R. RELIED UPON THE ORDER OF THE ASSESSING OFFICER AS WELL AS OF THE LEARNED CIT (AP PEALS). 31. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPE ALS) AS IT IS A FACT ON RECORD THAT THERE WERE CERTAIN INCOMES OF THE ASSESSEE IN THE FORM OF GRANTS, INTEREST AND MISCEL LANEOUS INCOME, WHICH WERE LIABLE TO BE TAXED AS THE ASSESS EE WAS NEITHER REGISTERED UNDER SECTION 12AA OF THE ACT NO T APPROVED UNDER SECTION 10(23) OR ANY OTHER SUCH PROVISIONS O F THE INCOME TAX ACT. SINCE THE ASSESSEE HAD NOT FILED I TS RETURN OF INCOME, THE ASSESSING OFFICER HAD VALID REASONS TO REOPEN THE ASSESSMENT. THEREFORE, REOPENING DONE BY THE ASSES SING OFFICER BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT IS HELD TO BE LAWFUL. THE ADDITION MADE BY THE ASSESSING O FFICER HAD BEEN DEALT SEPARATELY WHILE ADJUDICATING THE APPEAL S FILED BY THE REVENUE FOR THE RELEVANT ASSESSMENT YEAR. NO O THER SPECIFIC REASONS FOR REOPENING BEING BAD IN LAW, WE RE MADE BEFORE US. THEREFORE, THE REOPENING UNDER SECTION 148 OF THE ACT IS HELD TO BE AS PER LAW. 32. THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. 17 C.O.NO.76/CHD/2011 (IN ITA NO.1047/CHD/2011 ): 33. THE ONLY GROUND RAISED BY THE ASSESSEE IN THE CROSS OBJECTION IS EXACTLY SIMILAR AS IN C.O.NO.75/CHD/20 11 FOR ASSESSMENT YEAR 2004-05. FOLLOWING THE FINDINGS G IVEN IN C.O.NO.75/CHD/2011, WE DISMISS THE GROUND RAISED BY THE ASSESSEE IN THE CROSS OBJECTION. C.O.NO.50/CHD/2010 (IN ITA NO.1310/CHD/2010 ): 34. THE ONLY GROUND RAISED BY THE ASSESSEE IN THIS CROSS OBJECTION IS WITH REGARD TO ADDITION MADE BY THE AS SESSING OFFICER INVOKING THE PROVISIONS OF SECTION 40(A)(IA ) OF THE ACT. THE GROUND OF CROSS OBJECTION READS AS UNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) PANCHKULA HAS ERRED IN LAW AS WELL AS ON FACTS IN NOT ALLOWING GR OUND NO. 6 OF THE GROUNDS OF APPEAL RAISED BEFORE HIM, THEREBY DISALL OWING AN AMOUNT OF RS. 6,81,758/- UNDER SECTION 40A(IA) OF TH E INCOME TAX ACT 1961 FOR NON DEDUCTION OF TDS ON CERTAIN PAYMENTS T HEREBY WRONGLY UPHOLDING THE ADDITION MADE BY LD. ITO (THOUGH AMOUN T WAS CORRECTED TO RS. 6,81,758/- FROM RS. 12,43.541/-) WHICH MAY KINDLY BE ALLOWED AND DEMAND OF TAX ON THE SAID DISALLOWANCE OF RS. 6,81,758/- MADE BY LD. ITO AND UPHELD BY LD. COMMISS IONER OF INCOME TAX (APPEALS) MAY BE VACATED. 35. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD MAD E PAYMENTS TO CERTAIN PARTIES, WHICH ATTRACTED DEDUCT ION OF TAX AT SOURCE, WHICH THE ASSESSEE HAD FAILED TO PAY. H E MADE A LIST OF SUCH PAYMENTS AND MADE AN ADDITION OF RS.12 ,43,541/- INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 18 36. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE CHALLENGED THE DISALLOWANCE SO MADE BY THE ASSESSIN G OFFICER SUBMITTING THAT AS THERE IS NO INCOME ON WHICH THE INCOME TAX ACT IS PAYABLE BY THE ASSESSEE, THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE. IN THE AL TERNATIVE, THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS M ADE DISALLOWANCE OF CERTAIN PAYMENTS ON WHICH THE TAX W AS EITHER NOT DEDUCTIBLE OR HAS ALREADY BEEN DEDUCTED. THE LEARNED CIT (APPEALS) CONSIDERED THE SUBMISSIONS OF THE ASS ESSEE WITH REGARD TO EACH PAYMENT SO MADE AND AFTER ANALYZING THE SAME, CONFIRMED THE DISALLOWANCE TO THE EXTENT OF RS.6,81 ,758/- OUT OF THE TOTAL AMOUNT OF RS.12,43,541/- MADE BY THE A SSESSING OFFICER. 37. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSE E REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED CIT (APPEALS). HIS EMPHASIZE WAS THAT OUT OF THE TOTAL LIST OF PAYMENTS SO MADE IN SOME CASES, TAX HAS ALREADY BEE N DEDUCTED AND IN SOME CASES, THE TAX IS NOT REQUIRED TO BE DEDUCTED. IN VIEW OF THIS, IT WAS PRAYED TO DELETE THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 38. THE LEARNED D.R. RELIED UPON THE ORDER OF THE LEARNED CIT (APPEALS) AND SUBMITTED THAT DUE RELIEF TO THE ASSESSEE HAS BEEN GIVEN BY THE LEARNED CIT (APPEALS ) AND SINCE THE ADDITION SUSTAINED BY THE LEARNED CIT (AP PEALS) IS MADE ON REASONABLE GROUNDS, THE ORDER OF THE LEARNE D CIT (APPEALS) BE UPHELD. 19 39. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. IN T HIS CASE, WE SEE THAT THE LEARNED CIT (APPEALS) HAS GIVEN A VERY REASONED FINDING WITH REGARD TO THE SUBMISSIONS MADE BY THE ASSESSEE IN RESPECT OF EACH AND EVERY PAYMENT MADE BY THE AS SESSEE WITHOUT DEDUCTING TAX AT SOURCE. EVEN THE REMAND R EPORT WAS CALLED FOR BY THE ASSESSING OFFICER IN THIS REG ARD. AFTER CONSIDERING ALL THESE, THE LEARNED CIT (APPEALS) HA D GIVEN THE ASSESSEE A PARTIAL RELIEF AND UPHELD THE DISALLOWAN CE ONLY TO THE EXTENT OF RS.6,81,758/-. THE FINDINGS OF THE L EARNED CIT (APPEALS) ARE AT PAGE 9 IN PARA 7.2, WHICH READS AS UNDER : 7.2 NOW COMING TO THE SECOND SUBMISSION OF THE ASSESSEE THAT THE DISALLOWANCE U/S 40A(IA) IS EXCESSIVE AS ON CERTAIN PAYM ENTS, THE TDS WAS NOT DEDUCTIBLE IN VIEW OF THE EXEMPTION CERTIFICATE HAVING BEEN ISSUED TO THE DEDUCTEES AND IN SOME CASES THE TAX HAS ALREADY BEE N DEDUCTED AT SOURCE. THE DETAILS FILED BY THE ASSESSEE ARE SUMMARIZED AS UNDE R:-: SR.NO. CHART AMOUNT COMMENTS 1 I TO 9 RS.4,02,770/- TDS IS NOT DEDUCTIBLE AS EXEMPTION OF INCOME TAX/TDS HAS BEEN GIVEN BY THE DEPARTMENT. 2. 10,11 RS.2,18,760/- TDS HAS ALREADY BEEN DEDUCTED 3. 12 & 13 RS. 1,59,0 13/- TDS IS NOT DEDUCTIBLE. 4. 14 TO 20 RS:4,62,998/- TDS WAS DEDUCTIBLE BUT THE ASSESSEE HAS FILED DEDUCT THE SAME, . THE COMMENTS OF THE AO WERE CALLED IN THIS REGARD. T HE AO HAS INFORMED THAT THE CONTENTION OF THE ASSESSEE WITH REGARD TO NON DE DUCTIBILITY OF TDS ON CERTAIN PAYMENTS AS PER THE LIST FILED BY THE ASSESSEE IS COR RECT. I HAVE ALSO GONE 20 THROUGH THE DETAILS FILED BY THE APPELLANT. THE ASSESSE ES CLAIM WITH REGARD TO PAYMENTS MENTIONED IN SR.NO. 1 TO 9 WITH REGARD TO PA YMENTS MADE TO THE TRIBUNE TRUST CHANDIGARH AND INDIAN EXPRESS, CHANDIGA RH IS SUPPORTED BY DOCUMENTS AND IS THEREFORE ACCEPTED. SO, THE DISALLOW ANCE MADE ON THIS ACCOUNT AMOUNTING TO RS.4,02,770/- IS DELETED. FURTHER, THE APPELLANT HAS CLAIMED THAT TAX AMOUNTING TO RS.26 , 776/- HAS ALREADY BEEN DEDUCTED AT SOURCE WITH REGARD TO PAYMENTS MADE TO M/S TERI, NEW DELHI AS APPEARING AT SR. NO. 10 & 11 AND THERE IS NO DEFAULT. IT IS SEEN THAT THE DOCUMENTS SUBMITTED BY THE ASSESSEE REVEAL THAT SERVICE TAX AMOUNTING TO RS.26,251/- AND EDUCATION CESS AMOUNTING TO RS,525/- (TOTAL RS.26,776/-) HAS BEEN DEDUCTED AND NOT INCOME TAX AS CLAIMED BY THE APPELLANT, THE APPELLANT WAS GIVE N AN OPPORTUNITY TO EXPLAIN ITS POSITION. IN THIS REGARD, THE APPELLANT VIDE ITS LE TTER DATED 13.09,2010 INFORMED AS UNDER : - 'WE WISH TO INFORM THAT WE HAVE NOT BEEN ABLE TO LO CATE THE DOCUMENT M RESPECT OF PAYMENT. OF TDS ON THE AMOUNT OF RS. 1,0 0,000/- AND RS.L,18,700/- APPEARING AT ITEM NO, 10 & 11 RESPECTIVELY IN ANNEX URE 13 OF OUR WRITTEN SUBMISSIONS IN THE DESIRED FORMAT. ACCORDINGLY, WE ARE NOT ABLE TO PROVIDE THE SAME IMMEDIATELY IN THE HEARING, HOWEVER, AS SO ON AS WE ARE ABLE TO LOCATE THE SAME WE WILL PROVIDE IT TO THE DEPARTMEN T. ' IT IS THUS SEEN THAT THE APPELLANT'S CLAIM WITH REGAR D TO THE PAYMENTS MADE TO M/S TERI, NEW DELHI IS UNSUPPORTED BY DOCUMENTS . THERE IS NOT POINT IN GIVING FURTHER TIME TO THE APPELLANT AS THE DOCUMEN TS FILED CLEARLY REFLECT THAT SERVICE TAX AND EDUCATION CESS AMOUNTING TO RS.26.7 76A AND NOT INCOME TAX HAS BEEN DEDUCTED BY THE APPELLANT. IN ANY CASE THI S CLAIM CAN BE ACCEPTED BY THE AO U/S 154 IF THE APPELLANT IS ABLE TO PRODU CE DOCUMENT SHOWING THAT TAX AT SOURCE WAS DEDUCTED AND DEPOSITED WITH THE C OMPETENT AUTHORITY AS PER RULES AFTER DUE VERIFICATION. 40. SINCE EACH AND EVERY PAYMENT HAS BEEN ANALYZED AND WHEREVER TDS WAS NOT DEDUCTIBLE OR WAS ALREADY DEDUCTED, THE LEARNED CIT (APPEALS) HAS GIVEN DUE R ELIEF TO THE ASSESSEE. WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT 21 (APPEALS) AND UPHOLD THE SAME. THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. C.O.NO.77/CHD/2011 (IN ITA NO.1048/CHD/2011 ): 41. THE ONLY GROUND RAISED BY THE ASSESSEE IN CROS S OBJECTION IS WITH REGARD TO DISALLOWANCE MADE BY TH E ASSESSING OFFICER INVOKING THE PROVISIONS OF SECTIO N 40(A)(IA) OF THE ACT. THE GROUND OF CROSS OBJECTION RAISED B Y THE ASSESSEE READS AS UNDER : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) PANCHKULA HAS ERRED IN LAW AS WELL AS ON FACTS BY N OT ALLOWING GROUND NO. 6 TO 8 OF THE GROUNDS OF APPEAL RAISED BEFORE HIM, THEREBY DISALLOWING AN AMOUNT OF RS. 17,89,386/- UNDER SECTION 40A(IA) OF THE INCOME TAX ACT 1961 FOR NON DEDUCTION OF TDS ON CERTAIN PAYMENTS THEREBY WRONGLY UPHOLDING THE ADDITION MADE BY LD. ITO WHICH MAY KINDLY BE ALLOWED AND DEMAND OF TAX ON THE SAID DISALLOWANCE OF RS. 17,89,386/- MADE BY LD. ITO AN D UPHELD BY LD. COMMISSIONER OF INCOME TAX (APPEALS) MAY BE VACATED. 42. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSING OFFICER NOTICED THAT CERTAIN PAYMENTS WER E MADE BY THE ASSESSEE ON WHICH THE TAX WAS NOT DEDUCTED. A LIST OF SUCH PAYMENTS WAS MADE BY THE ASSESSING OFFICER AND INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT DISALLOWANCE OF RS.17,89,386/- WAS MADE. 43. BEFORE THE LEARNED CIT (APPEALS), IT WAS PLEAD ED THAT THERE ARE CERTAIN PAYMENTS ON WHICH TAX IS NOT TO B E DEDUCTED OR HAS ALREADY BEEN DEDUCTED. HOWEVER, NO SUCH DET AILS WERE 22 FILED BEFORE THE LEARNED CIT (APPEALS). THE LEARNE D CIT (APPEALS) PERUSED THE LIST OF PAYMENTS ON WHICH THE TAX WAS NOT DEDUCTED AND OBSERVED THAT ALL THESE EXPENSES W ERE EXIGIBLE TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND HENCE, CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 44. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT BOTH THE ASSESSING OFFICER AS WELL A S THE LEARNED CIT (APPEALS) HAVE ERRED IN DISALLOWING THE AMOUNT OF RS.17,89,386/-. 45. THE LEARNED D.R. RELIED UPON THE ORDERS OF THE ASSESSING OFFICER AND THE LEARNED CIT (APPEALS). 46. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF B OTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIE S BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. NO S UBMISSIONS WERE MADE WITH RESPECT TO SPECIFIC PAYMENTS MADE AN D HOW THE SAME ARE NOT LIABLE TO THE PROVISIONS OF TDS EI THER BEFORE THE ASSESSING OFFICER OR THE LEARNED CIT (APPEALS). EVEN BEFORE US, NO SUCH SUBMISSIONS WERE MADE. THE ONLY PLEA TAKEN BEFORE THE LEARNED CIT (APPEALS) WAS THAT SIN CE NO TAX WAS PAYABLE BY THE ASSESSEE, PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE TO IT. ON PERUSAL OF TH E LIST OF PAYMENTS MADE BY THE ASSESSEE, AS APPEARING IN THE ORDER OF THE LEARNED CIT (APPEALS), IN THE ABSENCE OF ANY SP ECIFIC SUBMISSION MADE, WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE LEARNED CIT (APPEALS) AND UPHOLD THE ORDER OF T HE LEARNED 23 CIT (APPEALS) ON THIS GROUND. THE GROUND OF CROSS OBJECTION RAISED BY THE ASSESSEE IS DISMISSED. C.O.NO.7/CHD/2013 (IN ITA NO.5/CHD/2013 ): 47. SINCE THE ISSUE IN THIS CROSS OBJECTION IS SIM ILAR TO THAT OF ASSESSMENT YEAR 2008-09 (C.O.NO.77/CHD/2011 ), FOLLOWING THE FINDINGS GIVEN BY US IN C.O.NO.77/CHD /2011, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMIS SED. 48. IN THE RESULT, ALL THE APPEALS FILED BY THE RE VENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF SEPTEMBER, 2015. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACOUNTANT MEMBER DATED : 24 TH SEPTEMBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 24