Oil & Natural Gas Corporation Ltd., V. The Income tax Officer, TDS, Bharuch

ITA 1006/AHD/2005

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5990 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-04-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 05-04-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA SRDR
• Assessee Lawyers: R MURALIDHAR
• Keywords: TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO. 1006 - 1009 /AHD/ 2005 DATE OF HEARING:11.6.10 DRAFTED:14.6.10 OIL & NATURAL GAS CORPORATION LTD., ANKLEHWAR PROJECT, ANKLESHWAR-393010 PAN NO.AAACO1598A V/S . INCOME TAX OFFICER, TDS, BHARUCH (APPELLANT) .. (RESPONDENT) ITA NO.2396 - 2399/AHD/2006 ASSESSMENT YEARS: 2005-06 & 2006-07 OIL & NATURAL GAS CORPORATION LTD., CENTRAL WORK- SHOP/WOB MAKARPURA ROAD, BARODA-09 PAN NO.AAACO1598A V/S . INCOME TAX OFFICER, (TDS), WARD-1, BARODA (APPELLANT) .. (RESPONDENT) ITA NO.2298/AHD/2006 ASSESSMENT YEAR: 2005-06 OIL & NATURAL GAS CORPORATION LTD., ANKLEHWAR PROJECT, ANKLESHWAR-393010 PAN NO.AAACO1598A V/S . INCOME TAX OFFICER, WARD-1 & TDS, BHARUCH (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI R. MURALIDHAR, AR REVENUE BY:- SHRI C.K. MISHRA, SR-DR O R D E R ITA NO.1006-09/AHD/05, 2298/AHD/2006 & 2396-99/AHD.06 ONGC, ANKLESHWAR/BRD V. ITO(TDS) BHARUCH/BARODA PA GE 2 PER BENCH:- THESE NINE APPEALS BY ASSESSEE ARE ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV, BARODA IN APPEAL NOS. CAB/IV-46 & 47-48-49/03-04 & CAB/VI-316-319 & 292/05-06 BY DI FFERENT DATES 01-08- 2006, 02-08-2006 AND 17-01-2005. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE SHRI. R. MURLIDHAR STATED THAT THE HONBLE BOMBAY HIGH COURT, IN A BUN CH OF WRIT PETITIONS, WHERE THE ASSOCIATION OF SCIENTIFIC & TECHNICAL OFFICERS (ASTO) OF OIL AND NATURAL GAS CORPORATION LTD. AND ANOTHER, WAS WRIT PETITION ER, AND THE HONBLE HIGH COURT HAS DISMISSED THE WRIT PETITIONS UPHOLDING TH E CONSTITUTIONAL VALIDITY OF RULE 3 OF THE INCOME TAX ACT IN VIEW OF THE APEX CO URT JUDGMENT IN THE CASE OF ARUNKUMAR AND ORS. VS. UNION OF INDIA AND ORS. ( 2006) 286 ITR 89 (SC). THE HONBLE BOMBAY HIGH COURT, DISMISSED THE WRIT P ETITION BY HOLDING AS UNDER: 1. HEARD THE LEARNED COUNSEL APPEARING FOR THE PETI TIONERS, LEARNED SENIOR COUNSEL FOR RESPONDENT NO.1 AND MR.CHATTERJE E APPEARING FOR THE RESPONDENT NOS. 2,3 AND 4 2. BASICALLY THESE PETITIONS ARE CHALLENGING THE CO NSTITUTIONAL VALIDITY OF RULE 3 OF THE INCOME TAX ACT. THE CHALLENGE TO THIS NOW DOES NOT SURVIVE IN VIEW OF THE APEX COURT S JUDGMENT IN THE CASE OF ARUNKUMAR AND OTHERS VS. UNION OF INDIA AND OTHERS REPORTED I N 2006(286) ITR 89 (SC) WHEREIN AND WHEREUNDER THE CONSTITUTIONAL VALI DITY OF RULE 3 HAS ALREADY BEEN UPHELD HOLDING THAT RULE 3 WILL APPLY AFTER IT IS PROVED THAT THERE IS A CONCESSION IN THE MATTER OF RENT SINCE T HERE IS NO DEEMING FICTION. 3. IN THE ABOVE VIEW OF THE MATTER THE CAUSE OF ACT ION TO PROCEED WITH THE PETITION DOES NOT SURVIVE SINCE THE CHALLE NGE HAS ALREADY BEEN ANSWERED BY THE APEX COURT IN ARUNKUMAR S CASE (CIT ED SUPRA). IN THE RESULT, ALL THESE PETITIONS ARE LIABLE TO BE DISMIS SED. ITA NO.1006-09/AHD/05, 2298/AHD/2006 & 2396-99/AHD.06 ONGC, ANKLESHWAR/BRD V. ITO(TDS) BHARUCH/BARODA PA GE 3 3. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER STA TED THAT THE HONBLE HIGH COURT HAS DIRECTED THE RESPONDENTS/EMPLOYERS T O QUANTIFY THE TAX LIABILITY EQUIVALENT TO THE AMOUNT OF TDS, WHICH WAS TO BE DE DUCTED AND TO BE PAID TO THE DEPARTMENT AND NOW THE SAME SHALL BE REMITTED T O THE INCOME TAX DEPARTMENT WITHIN 3 MONTHS FROM THE RECEIPT OF THE COPY OF THIS ORDER OF HONBLE HIGH COURT. IN THAT EVENTUALITY, THE ASSES SEE/EMPLOYERS SHALL NOT BE TREATED AS ASSESSEES IN DEFAULT. THE HONBLE HIGH COURT HAS DIRECTED VIDE PARA 4 AND 5 AS UNDER: 4. WITH THE DISMISSAL OF THESE PETITIONS, INTERIM O RDERS, IF ANY, IN ALL THESE PETITIONS SHALL AUTOMATICALLY CAME TO AN END. THE RESPONDENTS/EMPLOYERS SHALL BE LIABLE TO QUANTIFY T HE TAX LIABILITY EQUIVALENT TO THE AMOUNT OF TDS WHICH WAS DEDUCTIBL E AND PAYABLE TO THE INCOME TAX DEPARTMENT AND SHALL REMIT THE SAME TO THE INCOME TAX DEPARTMENT WITHIN THREE MONTHS FROM THE RECEIPT OF THE COPY OF THIS ORDER. IN THE EVENT OF COMPLIANCE OF THIS DIRECTIO N THE NONE OF THE EMPLOYERS SHALL BE TREATED AS AN ASSESSEES IN DEFAU LT. 5. WE MAKE IT CLEAR THAT IT WOULD ALSO BE OPEN FOR THE INCOME TAX DEPARTMENT TO TAKE APPROPRIATE FURTHER STEPS TO PRO CEED WITH THE ASSESSMENT AND/OR REASSESSMENT, AS THE CASE MAY BE, IN ACCORDANCE WITH LAW FOLLOWING LAW LAID DOWN BY THE APEX COURT IN THE JUDGMENT OF ARUNKUMAR (SUPRA) INCLUDING THE STEPS TO RECOVER TH EIR TAX DUES IF ANY. IN VIEW OF THESE DIRECTIONS, THE LEARNED COUNSEL FU RTHER STATED, THAT THE ASSESSEE HAS PAID THE ENTIRE TDS WITHIN THE STIPULA TED TIME OF HONBLE HIGH COURTS ORDER. HE FILED A CHART OF PAYMENTS MADE T O THE INCOME TAX DEPARTMENT OF THE TDS. HE STATED THAT THIS CAN BE VERIFIED BY THE ASSESSING OFFICER. 4. ON THE OTHER HAND THE LEARNED SENIOR DR SHRI. C. K. MISHRA STATED THAT THESE PAYMENTS CAN BE VERIFIED BY THE CONCERNED ASS ESSING OFFICERS AND ITA NO.1006-09/AHD/05, 2298/AHD/2006 & 2396-99/AHD.06 ONGC, ANKLESHWAR/BRD V. ITO(TDS) BHARUCH/BARODA PA GE 4 THESE APPEALS CAN BE SET ASIDE TO THE FILE OF THE A SSESSING OFFICER FOR VERIFICATION OF PAYMENT OF TDS. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE DIRECTIONS OF THE HONBLE BOMBAY HIGH COURT AS REPRODUCED ABOVE. IN VIEW OF THE ABOVE DIRECTIONS OF THE HONBLE BOMBAY HIGH COURT, WE SET ASIDE ALL THESE APPEALS TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE PAYMENTS MADE, AS CLAIMED BY THE ASSESSEE IN THE SHAPE OF CHART OF PAYMENT FILED BEFORE US, AND IN CASE THE PAYMENTS ARE MADE AS STIPULATED AND DIRECTED BY HON BLE BOMBAY HIGH COURT, THE EMPLOYERS WILL NOT BE TREATED AS ASSESSE E IN DEFAULT AND CONSEQUENTLY INTEREST UNDER SECTION 201(1A) WILL NO T BE CHARGED. IN VIEW OF THE ABOVE, WE SET ASIDE ALL THESE NINE APPEALS OF T HE ASSESSEE TO THE FILE OF ASSESSING OFFICER. 6. IN THE RESULT, THESE APPEALS OF THE ASSESSEE ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11/06/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED: 11/06/2010 ANKIT* COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-IV, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD