ITO, Rohtak V. M/s. Parle Biscuits Pvt. Ltd., Jhajjar

ITA 100/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58753 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 07-03-2012
• Assessment Year: misc
• Appeal Filed On: 06-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANJU BHARDWAJ
• Section: 133A; 201(1)

Judgement Text

ITA NO. 100/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 100/DEL/2012 A.Y. : 2010-2011 ITO (TDS), AAYAKAR BHAVAN, ROHTAK VS. M/S PARLE BISCUITS PVT. LTD., DELHI ROAD, SANKHOL, BAHADURGARH DISTT. JHAJJAR (PAN/GIR NO. : RTK P01771A) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SMT. MANJU BHARDWAJ, CA DEPARTMENT BY : SHRI PRADEEP KUMAR, C.I.T. (D.R.) ORDER ORDER ORDER ORDER PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 14.10. 2011 PERTAINING TO ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED READ AS UNDER:- (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ROHTAK HAS ERR ED IN LAW IN DELETING THE DEMAND OF ` 5580301/- CREATED ON A/C OF SHORT DEDUCTION OF TAX FROM THE PAYMENT OF ` 46831050 1/- MADE TO EIGHT DIFFERENT PARTIES FOR CONTRACT WORK DO NE BY THEM. ITA NO. 100/DEL/2012 2 (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ROHTAK HAS ERR ED IN LAW IN HOLDING THAT THE CONCERNED ASSESSING OFFICE R MAY NOT BE AWARE OF THE EXISTENCE OF VARIOUS TANS OF TH E DEDUCTORS AND THE CONCERNED ASSESSING OFFICER OF TH E DEDUCTEE GENERALLY ISSUE CERTIFICATE U/S. 197 ON TH E REGISTERED OFFICE OF THE DEDUCTOR WHEREAS THE CERT IFICATE U/S. 197 IS ISSUED BY THE ASSESSING OFFICER IN THE NAME OF DEDUCTOR ONLY AS REQUESTED BY THE DEDUCTEE APPLICAN T. (III) THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD, DELETE OR AMEND THE GROUND OF APPEAL BEFORE OR AT THE TIME O F HEARING OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER:- SURVEY OPERATIONS U/S. 133A WERE CONDUCTED ON THE B USINESS PREMISES OF THE ASSESSEE AT BAHADURGARH ON 7.2.2011 . ON PERUSAL OF THE RECORDS / DATA, THE ASSESSING OFFICE R NOTED THAT TDS HAS NOT BEEN MADE ON THE PAYMENTS MADE TO SOME PART IES ON ACCOUNT OF CONTRACT WORK DONE BY THEM. THE ASS ESSEE SUBMITTED TO THE ASSESSING OFFICER THAT THEY HAVE RECEIVED LOWER/ NON DEDUCTION OF TAX CERTIFICATES ISSUED B Y IT AUTHORITIES AND FOLLOWED THE SAME WHILE DEDUCTING THE TDS. THE ASSESSING OFFICER NOTED FROM THE PERUSAL OF SUCH CERTIFICATES THAT THEY HAVE BEEN ISSUED BY THE OFFICERS OF THE DEPARTMENT IN THE NAME OF PARLE BISCUITS PVT. LTD., MUMBAI AND NOT IN THE NAME OF PARLE BISCUITS PVT. LTD., BAHADURGARH IN RESPECT OF SOME PARTIES NOTED IN PAGE 2 OF THE IMPUGNED ORDER. WHEN CONFRO NTED, THE ASSESSEE SUBMITTED THAT MUMBAI IS THEIR HEAD OFFICE A ND ITA NO. 100/DEL/2012 3 THEREFORE CREDIT OF LOWER DEDUCTION TAX CERTIFICATE S HAS BEEN ISSUED TO THE DEDUCTEE PARTIES WHILE MAKING PAYMENT TO THEM. THE ASSESSING OFFICER DID NOT ACCEDE TO THE CONTEN TION OF THE ASSESSEE AND RAISED A DEMAND OF ` 67,38,214/- IN CLUDING INTEREST U/S. 201(1) AND 201(1A) OF THE ACT. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) THE SUBMISSIONS WERE AS UNDER:- BASED ON THE CERTIFICATES U/S 197 FOR LOWER / NO N DEDUCTION OF TAX AT SOURCE FURNISHED BY THE CMUS, THE TAX WAS ACCORDINGLY DEDUCTED AND PAID BY THE ASSESSEE BEFORE MAKING P AYMENT TO CMUS. DURING SURVEY OPERATIONS THE ASSESSING OFFICE R NOTED THAT IN FEW CERTIFICATES ISSUED U/S. 197, THE ADDRESS MENTIONED IS THE REGISTERED OFFICE OF THE ASSESSEE AT MUMBAI AND NOT O F THE FACTORY MAKING THE PAYMENT I.E. BAHADURGARH. THE ASSESSI NG OFFICER ERRONEOUSLY CAME TO THE CONCLUSION THAT THE ASSESSE E SHOULD NOT HAVE RESORTED TO LOWER / NON DEDUCTION OF TDS BASED ON SUCH CERTIFICATES AS BOTH THE UNITS / OFFICES HAVE SEPAR ATE TAN. DRAWING ATTENTION TO THE PROVISIONS OF SECTION 201(1 ), THE LD. AUTHORISED REPRESENTATIVE CONTENDED THAT THE ASS ESSEE CAN NOT BE TREATED AS ASSESSEE IN DEFAULT AS THE ASSESSEE H AS DEDUCTED TDS AS PER THE CERTIFICATES ISSUED U/S. 197 AND ALSO PAID THE SAME TO THE CREDIT OF THE GOVERNMENT. WITHOUT PRE JUDICE TO THE ABOVE, THE LD. AUTHORISED REPRESENTATIVE CONTENDED RELYING UPON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN H INDUSTAN COCA COLA BEVERAGES (P) LTD., VS. C.I.T. (2007) 293 ITR 226 (SC) THAT ONCE THE DEDUCTEES HAVE PAID TAX ON THE AMOUNT RECEIVED BY THEM, RECOVERY COULD NOT ONCE AGAIN BE MADE FROM THE ITA NO. 100/DEL/2012 4 DEDUCTOR. THE LD. AUTHORISED REPRESENTATIVE FUR NISHED COPIES OF THE AGREEMENT ENTERED WITH THE CMUS AND CONFIRMATI ON LETTERS FROM THEM THAT THE AMOUNT RECEIVED FROM THE ASSESSEE HA S BEEN INCLUDED IN THE INCOME FROM BUSINESS AND TAXES DUE HAVE BEEN PAID. 5. CONSIDERING THE ABOVE, LD. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT ONLY LIMITED ISSUE FOR CONSI DERATION IS WHETHER THE ASSESSEE WOULD HAVE RESORTED TO LOWER DEDUCTION / NON DEDUCTION OF TDS IN RESPECT OF THE CERTIFICATES ISSUED U/S. 197 IN THE NAME OF THE ASSESSEE WITH THE REGISTERED OFFICE (MUMBAI) INSTEAD OF THE OFFICE (BAHADURGARH) MAKING PAYMENT. LD. COMMISSIONER OF INCOME TAX (APPEALS) OPINED THAT THE CONCERNED ASSESSING OFFIC ER OF THE DEDUCTEE GENERALLY ISSUE CERTIFICATE U/S. 197 ON THE REGISTE RED OFFICE OF THE DEDUCTOR. HE MAY NOT BE AWARE OF THE EXISTENCE O F VARIOUS TANS FOR THE DEDUCTOR. THE ACTION OF THE ASSESSEE IS THE REFORE, RESORTED TO LOWER / NON DEDUCTION OF THE TDS IN RESPECT OF SUCH CERTIFICATES ISSUED U/S. 197 IN THE NAME OF THE ASSESSEE (THOUGH MAY NOT BE THE SPECIFIC UNIT / OFFICE) CAN NOT BE FAULTED. LD. COMMISSIONE R OF INCOME TAX (APPEALS) HELD THAT SINCE THE GENUINENESS OF ISSUA NCE OF CERTIFICATES U/S. 197 HAS NOT BEEN DOUBTED BY THE ASSESSING OFF ICER, THERE IS NO JUSTIFICATION FOR HIM TO HOLD THE ASSESSEE AS ASSESS EE IN DEFAULT MERELY ON THE GROUND THAT THE SAID CERTIFICATE WAS NOT IS SUED IN THE NAME OF BAHADURGARH UNIT. ACCORDINGLY, LD. COMMISSIONER OF I NCOME TAX (APPEALS) HELD THAT THE DEMAND RASIED BY THE ASSESSI NG OFFICER IN THIS REGARD IS DELETED. 6. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. ITA NO. 100/DEL/2012 5 7. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THA T IN THIS CASE THE GENUINENESS OF THE ISSUE OF CERTIFICATE IS NOT IN D OUBT. THE ONLY POINT OF CONTROVERSY AT THE LEVEL OF THE ASSESSING OFFICE R WAS CERTIFICATES ISSUED U/S. 197 IN THE NAME OF THE ASSESSEE WITH THE REGISTERED OFFICE (MUMBAI) INSTEAD OF THE OFFICE (BAHADURGARH). IN OUR CONSIDERED OPINION, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PASSED A REASONABLE ORDER WHICH DOES NOT NEED ANY INTERFEREN CE ON OUR PART. ACCORDINGLY, WE UPHOLD THE SAME. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/3/2012, U PON CONCLUSION OF HEARING. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 07/3/2012 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY COPY COPY COPY FORWARDED TO: FORWARDED TO: FORWARDED TO: FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES