Sri A.Harinath Reddy, Hyderabad V. DCIT, Hyderabad

ITA 1079/HYD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9847 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-08-2010
• Court: TRIBUNAL
• Department Lawyers: K KAMAKSHI
• Assessee Lawyers: S RAMA RAO
• Keywords: TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B ', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.1079/HYD/10 : ASSESSMEN T YEAR 2003-04 SHRI A. HARINATH REDDY, HYDERABAD ( PAN AGPPA 2781 H ) V/S. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 6, HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.RAMA RAO RESPONDENT BY : SMT. K.KAMAKSHI O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2008- 09 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME -TAX(APPEALS). 2. AT THE OUTSET, WE MAY NOTE THAT THE REGISTRY HAS ISSUED A DEFECT MEMO TO THE ASSESSEE POINTING OUT THAT THE TRIBUNAL FE E OF RS.10,000 OUGHT TO HAVE BEEN DEPOSITED BY THE ASSESSEE INSTEAD OF RS.500 PAID BY IT, AND AS SUCH THERE WAS SHORT-PAYMENT OF APPEAL FEE. WE HAVE H EARD BOTH THE PARTIES ON THIS ISSUE. LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ISSUE RELATING TO SHORT PAYMENT OF TRIBUNAL FEE IS COVE RED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HONBLE KARNATAKA HIGH CO URT IN THE CASE OF RAJKAMAL POLYMERS (P) LTD V/S. CIT (2007)291 ITR 314( KAR.) AND WITH THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF DR.A.NARESH BABU V/S. ITO (2010) 124 ITD 28. ON CAREFUL CONSIDERA TION OF THE RIVAL SUBMISSIONS ON THIS ISSUE, WE FIND THAT THE ISSUE OF TRIBUN AL FEE PAYABLE IN CASE WHERE THE CIT(A) DISMISSED THE APPEAL IN LIMINE ON THE GROUND OF NON- ITA NO.1079./HYD/10 SHRI A. HARINATH REDDY, HYDERABAD 2 PAYMENT OF ADMITTED TAX IN TERMS OF S.249(4)(A) OF THE ACT IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISIONS OF THE HONBLE K ARNATAKA HIGH COURT IN THE CASE OF RAJKAMAL POLYMERS (P) LTD (SUPRA) AND OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF DR. NARESH BABU (SU PRA), WHEREIN IT WAS HELD THAT IN TERMS OF S.253(6)(D), THE TRIBUNAL FEE OF RS.500 ONLY IS PAYABLE BY THE ASSESSEE WHERE THE APPEAL IS PREFERRED AGAINST THE ORDER OF THE CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE. WE ACCOR DINGLY FIND NO MERIT IN THE DEFECT POINTED OUT BY THE REGISTRY, AND THEREF ORE, PROCEED TO DISPOSE OFF THIS APPEAL ON MERITS. 3. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER- 1. THE ORDER OF THE LEARNED CIT(APPEALS) IS ERRONE OUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED CIT(APPEALS) ERRED IN REJECTING THE APPEAL ON THE GROUND THAT TAX WAS NOT PAID ON THE GROUND THAT THE ADMITTED TAX WAS NOT PAID. 3. THE LEARNED CIT(APPEALS) OUGHT TO HAVE SEEN THAT THE TAX PAYABLE BY THE APPELLANT WAS PAID AND THE BALANCE I S THE AMOUNT OF TAX DEDUCTED AT SOURCE BY THE PAYEE WHICH WAS DEDUCTED FROM THE RECEIPT BUT NOT PAID TO THE GOVER NMENT ACCOUNT. 4. THE LEARNED CIT(APPEALS) OUGHT TO HAVE SEEN THAT ACCORDING TO SEC.249(4)(A) THE TAX DUE FROM THE ASSESSEE IS TO B E PAID WHICH WAS ALREADY PAID AND THE TDS MADE REPRESENTS THE TA X PAID IN VIEW OF THE PROVISIONS OF SEC.199 OF THE I.T. ACT. 5. THE LEARNED CIT(APPEALS) OUGHT TO HAVE PROVIDED AN OPPORTUNITY TO MAKE THE PAYMENT OF THE BALANCE AND WITHOUT PROVIDING SUCH OPPORTUNITY THE LEARNED CIT(A) IS NO T JUSTIFIED IN NOT ADMITTING THE APPEAL. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT TDS A MOUNT WAS NOT PAID BY THE DEDUCTOR, M/S. DEMI REALTORS IN TIM E AND THEREFORE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE HOLDING THAT THE APPEAL IS NOT LIABLE TO BE ADMITTED AS PER PROVISIONS CONTAINED IN S.249(4)(A) OF THE INCOME TAX ACT, 1961. HE SUBMITTED THAT THE AMO UNT OF TDS WAS DEPOSITED BY M/S. DEMI REALTORS LATER ON AND FORM 16A WAS ALSO ISSUED TO ITA NO.1079./HYD/10 SHRI A. HARINATH REDDY, HYDERABAD 3 THE ASSESSEE AND COPY OF THE BANK RECEIPT OF THE TDS PAYM ENT AND FORM 16A WERE FILED BEFORE THE TRIBUNAL. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPO SED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. SHE SUBM ITTED THAT THE ASSESSEE SHOULD HAVE COMPLIED WITH THE PROVISIONS OF S.249( 4)(A) OF THE ACT BEFORE THE DISPOSAL OF THE APPEAL BY THE CIT(A). SHE RELIED ON THE ORDER OF THE CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND TH AT THE LIABILITY OF DEPOSITING THE TDS WAS OF THE DEDUCTOR AND NOT THAT OF THE ASSESSEE. THE DEDUCTOR OF TDS, M/S. DEMI REALTORS HAS DEPO SITED THE AMOUNT OF TDS TO THE CREDIT OF THE CENTRAL GOVERNMEN T ON 10.8.2010 AND CERTIFICATE IN FORM 16A HAS BEEN ISSUED TO THE ASSESSEE. TH E ASSESSEE HAS PRODUCED BEFORE US A COPY OF THE BANK RECEIPT DATED 10 .8.2010 AND FORM 16A ISSUED BY THE DEDUCTOR COMPANY. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE ISSUES BEFORE THE CIT(A) SHOULD BE DE CIDED ON MERITS THEREOF. ACCORDINGLY, IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE AND MATTER IS RESTORED TO HIS FILE WITH A DIRECTION TO ADMIT THE A PPEAL OF THE ASSESSEE, AFTER TAKING ON RECORD THE EVIDENCE OF TDS DEPOSITED BY THE DEDUCTOR, M/S. DEMI REALTORS AND THEN TO DECIDE THE APPEAL BEFORE HI M IN ACCORDANCE WITH LAW ON MERITS THEREOF, AFTER ALLOWING REASONABLE OPPO RTUNITY OF HEARING TO BOTH THE PARTIES. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 11.2.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 11.2.2011 ITA NO.1079./HYD/10 SHRI A. HARINATH REDDY, HYDERABAD 4 COPY FORWARDED TO: 1. SHRI A. HARINATH REDDY, C/O. SPAD & ASSOCIATES, CHART ERED ACCOUNTANTS, 6-3-609/195, ANANDNAGAR COLONY, KHAIRATAB AD, HYDERABAD 4 2. DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 6, HYDERABAD 3. COMMISSIONER OF INCOME-TAX(APPEALS)-I, HYDERABAD 4. COMMISSIONER OF INCOME-TAX, CENTRAL, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S