M/s. B.P.Dash, Cuttack V. ITO, Ward-1(1), Cuttack

ITA 107/CTK/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7255 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 02-01-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 29-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P K JESTHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 107 /CTK/2016 ASSESSMENT YEAR : 2011 - 2012 M/S.B.P.DASH, SAILOGOVINDPUR, CUTTACK VS. ITO, WARD 1(1), CUTTACK PAN/GIR NO. AAEFB 9913 B (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.K.JESTHI, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 02 /01/ 2017 DATE OF PRONOUNCEMENT : 02/01/ 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 25.1.2016 , FOR THE ASSESSMENT YEAR 2011 - 2012 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN NOT ALLOWING CREDIT FOR TDS DEDUCTED FROM THE RECEIPTS UNDER PAN NO.ACCPD 0528 Q IN THE NAME OF BIBHUDHENDRA PRASAD DASH, INDIVIDUAL AND PARTNER IN M/S. B.P.DASH IN THE HANDS OF THE FIRM M/S. B.P.DASH UNDER PAN NO.AAEFB 9913 B , WHEN INCOME 2 ITA NO. 107/CTK/2016 ASSESSMENT YEAR :2011 - 2012 FROM THE BILLS ON WHICH TDS HAS BEEN DEDUCTED HAS BEEN SHOWN BY THE FIRM M/S. B.P. DASH UNDER PAN NO.AAEFB 9913 B . 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE FIRMS WORK HAS BEEN UNDERTAKEN IN THE NAME OF THE MANAGING PARTNER BIBHUD H ENDRA PRASAD DASH WITH PAN NO.ACCPD 0582 Q AND ALSO IN THE NAME OF THE FIRM M/S. B.P .DASH WITH PAN NO.AAEF B 9913 B. ACCORDINGLY, TDS WAS DEDUCTED UNDER BOTH THE PAN NUMBERS. THE ASSESSEE HAS SHOWN THE BILLS RECEIVED UNDER BOTH THE PAN NOS. IN THE HANDS OF THE FIRM AS INCOME THEREFROM AND OFFERED THE SAME FOR TAXATION. THE TDS MADE IN THE NAME OF MANAGING PA RTNER BIBHUDHENDRA PRASAD DAS H WAS NOT ALLO WED CREDIT TO THE ASSESSEE FIRM W HILE PROCESSING OF THE RETURN U NDER SECTION 143(1). T HE 154 PETITION FILED BEFORE THE ASSESSING OFFICER WAS REJECTED BY THE ASSESSING OFFICER WITH THE FOLLOWING OBSERVATIONS: SINCE THE 26AS STATEMENT HAS BEEN ISSUED IN THE NAME OF SRI BIBHUDHENDRA PRASAD DASH IN THE INDIVIDUAL CAPACITY, CREDIT OF TDS CANNOT BE ALLOWABLE IN THE FIRMS HAND. UNDER THESE CIRCUMSTANCES , REQUEST FOR ONLINE APPROVAL NOT ACCEDED. 4. BEFORE THE LD CIT(A), THE ASSESSEE RELIED ON THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S. AJAY KUMAR NAYAK IN ITA NO.426/CTK/2012. THE LD CIT(A) DID NOT ALLOW THE CLAIM OF THE ASSESSEE ON THE GROUND THAT IN THE CASE OF AJAY KUMAR NAYAK(SUPRA), THE ACTI ON WAS SUBSEQUENT TO THE 3 ITA NO. 107/CTK/2016 ASSESSMENT YEAR :2011 - 2012 ASSESSMENT MADE U/S.143(3) OF THE ACT AND BASING ON THE FINDING OF THE ASSESSING OFFICER ON THE MATTER WHEREAS IN THE CASE OF THE ASSESSEE, THE INTIMATION U/S.143(1) HAS BEEN MADE BASING ON THE 26AS STATEMENTS OF THE ASSESSEE. HEN CE, THE SAME COULD NOT BE RECTIFIED BY THE ASSESSING OFFICER. LD CIT(A) ALSO OBSERVED THAT IN SIMILAR MANNER WITHOUT ASSESSMENT U/S.143(3) OF THE ACT, CREDIT OF TDS CANNOT BE GIVEN TO SOME OTHER PERSON OTHER THAN THE ASSESSEE IN WHOSE NAME STANDS IN THE 2 6AS. 5. BEFORE ME ALSO, LD A.R. OF THE ASSESSEE HAS RELIED ON THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S. AJAY KUMAR NAYAK(SUPRA) AND REITERATED THE SUBMISS ION MADE BEFORE THE LD CIT(A) BUT COULD NOT CONTROVERT THE OBSERVATION OF THE CIT (A) STATED ABOVE WHILE NOT FOLLOWING THE SAID DECISION OF THE TRIBUNAL. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF THE PARTNER BIBHUDHENDRA PRASAD DASH STATING THAT THE TDS DEDUCTED UNDER PAN NO.ACCPD 0528 Q DURING THE FINANCIAL YEAR 2010 - 2011 HAS BEEN CL AIMED IN THE HANDS OF THE FIRM M/S. B.P.DASH, PAN NO.AAEFB 9913 B AND THAT HE HAS NOT CLAIMED DEDUCTION FOR THE TDS IN THE INCOME TAX RETURN FILED IN HIS INDIVIDUAL CAPACITY. 6. ON THE OTHER HAND, LD D.R. ARGUED THAT SECTION 199 PROVIDES FOR MANDATORY TREA TMENT OF TDS PAID AS TAX PAYMENT ON BEHALF OF THE PERSON FROM WHOSE INCOME TDS WAS MADE OR THE OWNER OF PROPERTY, AS THE CASE MAY BE, AMONG OTHER THINGS. SECTION 199(2) PROVIDES FOR RULES INCLUDING RULES FOR 4 ITA NO. 107/CTK/2016 ASSESSMENT YEAR :2011 - 2012 GIVING CREDIT TO ANOTHER PERSON AMONG OTHER THI NGS. RULE 37BA(1) PROVIDES FOR CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII, SHALL BE GIVEN TO THE PERSON TO WHOM PAYMENT HAS BEEN MADE OR CREDIT HAS BEEN GIVEN ON THE BASIS OF INFORMATION RELATING TO THE DEDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE INCOME TAX AUTHORITY OR THE PERSON AUTHORIZED BY SUCH AUTHORITY . RULE 37BA(2)( I ) PROVIDES THAT WHERE THE WHOLE OR ANY PART OF THE INCOME ON WHICH TAX HAS BEEN DEDUCTED AT SOURCE IS ASSESSABLE IN THE HANDS OF A PERSON OTHER THAN THE DEDUCTEE, CREDIT FOR THE WHOLE OR ANY PART OF THE TAX DEDUCTED AT SOURCE, AS THE CASE MAY BE, SHALL BE GIVEN TO THE OTHER PERSON AND NOT TO THE DEDUCTEE PROVIDED THAT THE DEDUCTEE FILES A DECLARATION W ITH THE DEDUCTOR AND THE DEDUCTOR REPORTS THE TAX DEDUCTION IN THE NAME OF THE OTHER PERSON IN THE INFORMATION RELATING TO DEDUCTION OF TAX . THIS DECLARATION SHALL CONTAIN THE NAME, ADDRESS, PERMANENT ACCOUNT NUMBER OF THE PERSON TO WHOM CREDIT HAS TO BE GIVEN, PAYMENT OR CREDIT IN RELATION TO WHICH CREDIT IS TO BE GIVEN AND REASONS FOR GIVING CREDIT TO SUCH PERSON AND THE DEDUCTOR SHALL ISSUE A CERTIFICATE FOR DEDUCTION OF TAX AT SOURCE IN THE NAME OF THE PERSON IN WHOSE NAME CREDIT IS SHOWN IN THE INFORM ATION RELATING TO DEDUCTION OF TAX. 7. IN VIEW OF THE ABOVE, LD D.R. CONTENDED THAT WITHOUT THE DEDUCTEE FILING A DECLARATION WITH THE DEDUCTOR WITH THE SPECIFIED CONTENT, AND THE DEDUCTOR REPORTS THE TAX DEDUCTION IN OTHER PERSON NAME ISSUING TDS CERTIFI CATE IN THE NAME OF THE OTHER PERSON, TDS CREDIT CANNOT BE ALLOWED TO THE OTHER PERSON. 5 ITA NO. 107/CTK/2016 ASSESSMENT YEAR :2011 - 2012 8. ON A QUERY BY THE BENCH TO THE LD A.R. OF THE ASS ESSEE WHETHER THE ASSESSEE FILED THE DECLARATION AS MANDATED BY THE PROVISIONS OF RULE 37BA(2)(I ) WITH THE DEDUCTOR OF THE TAX AND IN TURN, THE DEDUCTOR OF THE TAX HAS FILED THE INFORMATION WITH THE INCOME TAX DEPARTMENT RELATING TO THE DEDUCTION OF TAX AT SOURCE AND WHETHER THE DEDUCTOR HAS ISSUED THE CERTIFICATE FOR DEDUCTION OF TAX AT SOURCE IN THE NAME OF THE PERSON IN WHOSE NAME THE CREDIT IS SHOWN IN THE INFORMATION RELATING TO DEDUCTION OF TDS REFERRED TO IN SUB - RULE (1), L D A.R. OF THE ASSESSEE ADMITTED THAT IT HAS NOT BEEN DONE. 9. IN VIEW OF THE ABOVE SPECIFIC PROVISIONS CONTAINED IN RULE 37BA OF THE INCOME TAX RULE, 1962 FOR ALLOWING CREDIT FOR TDS DEDUCTED AT SOURCE FOR THE PURPOSE OF SECTION 199, THE ASSESSING OFFICER HAS RIGHTLY NOT ALLOWED THE CREDIT FOR THE TDS TO THE ASSE SSEE AND THERE IS NO MISTAKE IN THE ORDER OF THE LD CIT(A) IN CONFIRMING THE SAME. I, THEREFORE, DISMISS THE GROUNDS OF APPEAL OF THE ASSESSEE. 10. IN THE RESULT, THE APPEAL F ILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCE D IN THE OPEN COURT ON 02/01/2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 02/01 /2017 B.K.PARIDA, SPS 6 ITA NO. 107/CTK/2016 ASSESSMENT YEAR :2011 - 2012 COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : M/S.B.P.DASH, SAILOGOVINDPUR, CUTTACK 2. THE RESPONDENT :ITO, WARD 1(1), CUTTACK 3. THE CIT(A) CUTTACK 4. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//