M/s. Udaipur Bonded Ware House, Silchar V. Income Tax Officer, Ward-TDS, Silchar

ITA 08/GTY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8495 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D LOYI J DATEOFHEARING
• Assessee Lawyers: D K BISWAS; KISHOR KR JAIN FCA J
• Keywords: TDS

Judgement Text

] \ ' \ ' , ' , IN THEINCOMETAXAPPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRIS.S.GODARA,JUDICIALMEMBER AND DR. A.L. SAINI, ACCOUNTANTMEMBER ITA NO. 08 - 13 / GAU / 2017 ASSESSMENT YEARS :2008-09 TO 2013-14 M/S UNION BONDED WARE HOUSE, MEHERPUR, SILCHAR, DIST. CACHAR- 788015 [ PAN NO.AABFU 4225 A ] V/S . INCOME TAX OFFICER, TDS, SILCHAR, AAYAKAR BHAWAN, PWD RDOAD, SILCHAR-788001 \ ' /APPELLANT .. / RESPONDENT ] ' J /BYASSESSEE SHRI D.K.BISWAS, ADVOCATE & SHRI KISHOR KR.JAIN, FCA J /BYREVENUE SHRI D.LOYI, ADDL. JCIT-DR ' _ /DATEOFHEARING 01-07-2019 /DATEOFPRONOUNCEMENT 03-07-2019 / ORDE R PERBENCH:- THE ASSESSEE HAS FILED THE INSTANT SIX APPEAL(S) FOR ASSESSMENT YEAR(S) 2008-09 TO 2013-14 AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)- SHILLONGS SEPARATE ORDERS ALL DATED 17.11.2016 IN CASE NO.S SIL-147- 152/2015-16; RESPECTIVELY AFFIRMING ASSESSING OFFICERS ACTION RAISING DEMANDS THEREBY TREATING IT AS AN ASSESSEE IN DEFAULT FOR COLLECTION OF TCS IN PROCEEDINGS U/S 201(1), R.W.S. 201(1A) R.W.S. 206(C) OF THE INCOME TAX ACT, 1961;INSHORTTHE ACT. 2. WE HAVE HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. IT TRANSPIRES DURING THE COURSE OF HEARING THAT BOTH THE LOWER AUTHORITIES HAVE HELD ITA NO.08-13/GAU/2017 A.YS2008-09 TO 2013-14 M/SUNION BONDEDWARE HOUSE VS. ITO TDS SILCHAR PAGE2 ASSESSEE TO BE THE ASSESSEE IN DEFAULT FOR THE REASON THAT IT FAILED TO COLLECT OF TDS INCLUDING EXCISE DUTY / VAT FROM ITS PAYEES. WE ARE INFORMED THAT THIS ASSESSEE IS ENGAGED IN SALE-PURCHASE INDIAN MADE FOREIGN LIQUOR IMFL AND OTHER ALLIED DISTILLED GOODS FROM MANUFACTURER/DISTRIBUTORS. MR.BISWAS STATES AT THE BAR THAT ALTHOUGH THE ASSESSEE HAS IN FACT NOT COLLECTED THE EXCISE DUTY/VAT COMPONENT IN ISSUE FROM ITS PURCHASING PARTY, HE HAS GOT EVIDENCE TO PROVE THAT THE SAID PARTIES HAVE ALREADY CREDITED / PAID THE SAME TO THE GOVERNMENTS ACCOUNT. HE THEREFORE RAISES THIS NEW PLEA DURING THE COURSE OF HEARING BEFOREUS. 3. FACED WITH THIS SITUATION, MR. LOYI SUBMITS THAT THE ASSESSEE HAS RAISED THE INSTANT NEW PLEA WHICH REQUIRES FACTUAL VERIFICATION FROM THE ASSESSING OFFICERS END. WE TAKE INTO ACCOUNT ALL THESE INTERVENING DEVELOPMENTS TO AFFIRM BOTH THE LOWER AUTHORITIES ACTION IN PRINCIPLE AND RESTORE THE INSTANT ISSUE BACK TO THE ASSESSING OFFICER FOR NECESSARY FACTUAL VERIFICATION AS PRESCRIBED U/S 206(6A) PROVISO OF THE ACT. WE MAKE IT CLEAR THAT HONBLE APEX COURTS LANDMARK DECISION IN THE CASE OF HINDUSTAN COCO COLA BEVERAGES PVT LTD. (2007) 293 ITR 226 (SC) HAS SETTLED THE LAW THAT THE IMPUGNED LIABILITY IS VICARIOUS IN NATURE WHEREIN THE DEDUCTOR / COLLECTOR ASSESSEE HAD TO PERFORM HIS DUTY PROVIDED IN THE LAW ON BEHALF OF OTHER ASSESSEE IN OTHER WORDS. THEIR LORDSHIP CONCLUDED THAT IN CASE THE OTHER PARTY HAS ALREADY PAID OR CREDITED THE TAX SUM IN ISSUE, THE DEDUCTOR / COLLECTOR ASSESSEE CANNOT BE HELD TO BE THE ASSESSEE IN DEFAULT. WE ADOPT THE VERY ANALOGY HEREIN AS WELL TO ACCEPT ASSESSEES SOLE SUBSTANTIVE GRIEVANCE CANVASSED IN THE INSTANT SIX APPEALS FOR STATISTICAL PURPOSES. WE LEAVE IT OPEN FOR THE ASSESSING OFFICER TO CONDUCT THE FOREGOING FACTUAL VERIFICATION EXERCISE. THE ASSESSEE IS DIRECTED TO PLACE ON RECORD ALL NECESSARYEVIDENCE ENVISAGED U/S 206(C) (6A) PROVISO OF THE ACT BEFORE THE ASSESSING OFFICER WITHIN THREE EFFECTIVE OPPORTUNITIES FAILING WHICH OURINSTANTREMAND DIRECTIONS SHALL STAND VACATED. ITA NO.08-13/GAU/2017 A.YS2008-09 TO 2013-14 M/SUNION BONDEDWARE HOUSE VS. ITO TDS SILCHAR PAGE3 4. THE ASSESSEES INSTANT SIX APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES INABOVETERMS. ORDERPRONOUNCEDINTHEOPENCOURT 03/07/2019 SD/- SD/- ( ' ) ( ' ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP ' ' - 03/07 /201 9 ' \ / COPY OF ORDER FORWARDED TO:- 1 . /ASSESSEE-M/S UNION BONDEDWAREHOUSE, MEHERPUR,SILCHAR,DIST. CACHAR- 2. / REVENUE-ITOTDS,AAYAKARBHAWANA, PWDROAD, SILSCHAR-788001 3. - ' ] ] ' /CONCERNEDCIT GUWAHATI 4. ] ] - / CIT (A) GUWAHATI 5. ' ' ' , ] \ ' \ ' , ' ' / DR,ITAT,GUWAHATI 6. ' [ /GUARDFILE. BYORDER/ , /TRUECOPY/ SR. PRIVATE SECRETARY(ONTOUR) ] \ ' \ ' ,