M/s Dynamic Gold Infra Ltd, Jalandhar V. The Income Tax Officer, Jalandhar

ITA 104/ASR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5616 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 20-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PAL SINGH LD
• Assessee Lawyers: ASHRAY SARNA LD
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T.S. KAPOOR, ACCOUNTANT MEMB ER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I. T. A. NO. 104/(ASR)/2017 ASSESSMENT YEAR: 2013-14 PAN: AADCD1277E M/S DYNAMIC GOLD INFRA LTD., V.P.O. SHEKHE, OLD HOSHIARPUR ROAD, JALANDHAR VS. INCOME TAX OFFICER WARD-II (1); JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY : ASHRAY SARNA (LD. C.A. ) RESPONDENT BY: VED PAL SINGH (LD. D.R.) DATE OF HEARING: 03.05.2017 DATE OF PRONOU NCEMENT: 05.05.2017 ORDER PER N. K. CHOUDHRY (JM): THIS IS AN APPEAL FIELD BY ASSESSEE AGAINST THE ORDER OF LD. CIT(A) JALANDHAR, DATED 28.11.2016 FOR ASST. YEAR 201 3-14. 2. THE ONLY GROUND OF APPEAL TAKEN BY ASSESSEE IS THE ACTION OF LD. CIT(A) BY WHICH HE HAS CONFIRMED AN ADDITION OF RS. 8,7 3,000/- WHICH WAS MADE BY ASSESSING OFFICER ON ACCOUNT OF NON-DEDUCTION O F TAX SOURCE OF M/S KOTAK MAHINDRA BANK LTD. AND TATA CAPITA L LTD. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAD MADE DISALLOWANCE U/S 40(A)(IA) FOR INTEREST PAID T O KOTAK MOHINDRA PRIME LTD & TATA CAPITAL LTD. AND IT WAS AR GUED BEFORE LD. CIT(A) THAT THE PAYEE HAS FILED THEIR RETURN INCOME D ISCLOSING THE ITA NO. 104 /(ASR)/2017 ASST. YEAR: 2013-14 2 PAYMENT RECEIVED BY THEM IN ITS RETURN OF INCOME AND THEREFORE, THE ASSESSEE CANNOT BE HELD TO BE A PERSON IN DEFAULT. THE LD . AR SUBMITTED THAT THE ASSESSEE WAS ASKED TO SUBMIT CERTIFICATES A ND IN PROPER FORMAT AS PER PROVISIONS 201(1) OF THE ACT, HOW EVER, THE CERTIFICATE COULD NOT BE FILED WITHIN THE TIME ALLOWED BY LD. CIT(A) AS THESE WERE RECEIVED LATER ON AND THEREFORE, ASSESSEE OF L D. CIT(A) DISMISS THE APPEAL OF ASSESSEE. 4. THE LD. AR SUBMITTED THAT THE SAID CERTIFICATE HAS NO W BEEN RECEIVED AND OUR ATTENTION INVITED TO PAPER BOOK PAG E OF 4 TO 7, WHERE THE TWO CERTIFICATES RECEIVED FROM M/S CHARTERED ACCOUNTAN T OF KOTAK MOHINDRA PRIME LTD. & TATA CAPITAL LTD. WERE PLACED AND IT WAS PRAYED THAT THE CASE MAY BE SET ASIDE TO ASSESSING OFFICER WHO CAN VERIFY THE SAME. 5. THE LD. DR ON THE OTHER HAND, HEAVILY PLACED HIS R ELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT IN THE REASON FOR DISMISSING THE APPEAL OF ASSESSEE IS THAT ASSESSEE COULD NOT FILE THE CE RTIFICATES AS REQUIRED BY LD. CIT(A) WITHIN THE TIME ALLOWED BY H IM AND IN THIS RESPECT, THE RELEVANT FINDINGS OF LD. CIT(A0 ARE REPRO DUCED BELOW: 13. DURING APPELLATE PROCEEDINGS ASSESSEE ARGUED T HAT AS LONG AS THE PAYEE/RESIDENT HAS FILED ITS RETURN OF INCOME DISCLOSING THE PAYMENT RECEIVED BY AND IN WHICH INC OME EARNED BY IT IS EMBEDDED AND HAS ALSO PAID TAX ON SUCH INC OME, THE ASSESSEE WOULD NOT BE TREATED AS A PERSON IN DEFAUL T. THE ASSESSEE WAS ASKED TO SUBMIT CERTIFICATES IN PROPER FORMAT AS ITA NO. 104 /(ASR)/2017 ASST. YEAR: 2013-14 3 PER PROVISIONS OF SEC. 201(1), AND WAS GIVEN OPPORT UNITY TO DO SO ON 07.01.2016, AND AGAIN ON 21.01.2016. ON 22.11 .2016 A NOTICE WAS ISSUED TO ASSESSEE TO ATTEND ON 28.11.20 16, CLEARLY PROVIDING A FINAL OPPORTUNITY VIDE A NOTE, AS UNDER :- NOTE : ON 07.11.2016, YOU WERE REQUESTED TO FILE CE RTIFICATE U/S 40(A) (IA) REGARDING ISSUE OF TDS IN PROPER FORMAT. BUT THE SAME HAS NOT BEEN FILED TILL DATE. YOU ARE ONCE AGA IN REQUESTED TO SUBMIT THE SAME BY 28.11.2016 AS FINAL OPPORTUNI TY AFTER WHICH ORDER WILL BE ISSUED ON MERITS. 14. EVEN TILL DATE, ASSESSEE HAS NOT BEEN ABLE TO S UBMIT THE SAME. IN ABSENCE OF CERTIFICATION IN PROPER FORMAT U/S 201(1) BY PAYEES, THAT THEY HAVE ACTUALLY RECEIVED INTEREST F ROM ASSESSEE, INCLUDED IT IN THEIR INCOME, FILED RETURN U/S 139(9 ), IT IS NOT POSSIBLE TO ACCEPT THE CONTENTION OF ASSESSEE. 7. NOW THE LD. AR HAS SUBMITTED THAT THE SAID RECEIPT H AS BEEN RECEIVED WHICH ARE PLACED AT PAPER BOOK PAGE OF 4 TO 7 AND THEREFORE THE ASSESSING OFFICER IS DIRECTED TO VERIFY THESE CERTIFICATE S TO ASCERTAIN AS TO WHETHER THE INTEREST PAID BY ASSESSEE HAS BEEN DECLAR ED BY THESE PARTIES IN THEIR RETURN OF INCOME AND IF THE SAME HAS BEEN INCLUDED IN THEIR RESPECTIVE RETURN OF INCOME. THE ASSESSEE CANNOT BE SAID TO BE IN DEFAULT U/S 201(1) OF THE ACT. AS PER THE FIRST PROVISO TO SECTION 201(1) OF THE ACT SH ALL NOT BE DEEMED TO BE ASSESSEE IN DEFAULT IN RESPECT OF SUCH TAX I F SUCH RESIDENT PAYEE- (I) HAS FURNISHED HIS RETURN OF INCOME UNDER SECTI ON 139: (II) HAS TAKEN INTO ACCOUNT SUCH SUM FOR COMPUTING INCOME IN SUCH RETURN OF INCOME; AND (III) HAS PAID THE TAX DUE ON THE INCOME DECLARED BY HIM IN SUCH RETURN OF INCOME; ITA NO. 104 /(ASR)/2017 ASST. YEAR: 2013-14 4 THEREFORE, IN VIEW OF THE ABOVE, WE DEEM IT APPROPR IATE TO REMIT ISSUE BACK TO THE ASSESSING OFFICER WHO SHOULD VERIFY THESE F ACTS AND SHOULD PASS A FRESH ASSESSMENT ORDER AFTER CONSIDERING THESE FACTS. 8. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.05.2017. SD/- SD/- (T. S. KAPOOR) (N. K. CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 05.05.2017 /GP/SR.PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER