Bhanja Minerals (P) Ltd, Cuttack V. ITO(TDS), Cuttack

ITA 108/CTK/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96875 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 18-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURESH SHIVANANDAN
• Assessee Lawyers: SIDHARTHA RAY
• Section: 133A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . , & , BEFORE S/SHRI B. RAMAKOTAIAH, ACCOUNTA NT MEMBER & PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ! ./ ITA NO.108/CTK/2015 ( ' ' ' ' #$ #$ #$ #$ / ASSESSMENT YEAR :2013-2014) BHANJA MINERALS (P) LTD., B-1449, SECTOR-6, CDA, CUTTACK. VS. INCOME TAX OFFICER (TDS), AAYAKAR BHAVAN, SHELTER CHHAK, CUTTACK ! ./ %& ! ./PAN/TAN NO. BBNBO 0638B ( ' /APPELLANT ) .. ( ()' / RESPONDENT ) '+ - - - - /ASSESSEE BY : SHRI SIDHARTHA RAY %# - - - - /REVENUE BY : SHRI SURESH SHIVANANDAN '#. + / DATE OF HEARING : 2 ND NOV. 2015 /$ + /DATE OF PRONOUNCEMENT 5 TH NOV. 2015 0 0 0 0 / O R D E R PER PARTHA SARATHI CHAUDHURY, JM CHALLENGING THE ORDER OF THE LD CIT (A) CUTTACK DAT ED 29.1.2015, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. FOR THAT THE CIT APPEAL, CUTTACK WAS WHOLLY UNJUSTIFIED IN SUSTAINING THE ADDITION OF RS.14,08,041.00. 2. FOR THAT THE ADDITION OF RS. 14,08,041.00 U/S 2 06C (6) (6A ) AND 7 OF THE IT ACT, 1961 FOR THE ASSESSMENT YEAR 2013-14 BY THE ITO (TDS) IS ILLEGAL AND UNJUSTIFIED AND LIABLE TO BE DELETED. 3. FOR THAT THE ASSESSEE IS NOT LIABLE TO COLLECT TAX U/S 206C OF THE IT ACT,L 961 ON THE PURCHASERS WHO ARE MANUFACTURERS AND SUB MITTED THE DECLARATION FORM IN FORM NO.27-C, THEREFO RE THE IMPUGNED DEMAND AS MADE BY THE ASSESSING OFFICER IS WITHOUT JURISDICTION AND WITHOUT ANY AUTHORITY OF LAW. 4. THAT THE APPELLATE AUTHORITY WAS NOT JUSTIFIED IN I GNORING THE FORM 27-C FILED BEFORE HIM AT THE TIME OF HEARING ON THE GROU ND THAT THE SAID FORMS WERE NOT SUBMITTED BEFORE THE CHIEF COMMISSIONER /C OMMISSIONER ITA NO. 108/CTK/2015 ASSESSMENT YEAR :2013-14 2 WITHIN TIME. 2. FACTS IN BRIEF IN THIS CASE ARE THAT THE ASSESSE E IS A PRIVATE LIMITED COMPANY NAMELY M/S BHANJA MINERALS PVT. LTD, SITUATED AT PL OT NO. B- 1449,SECTOR-6, CDA, CUTTTACK- 753014 ENGAGED IN THE BUSINESS OF MINING EXPLORATION AND TRADING. THE FACTS ARE MORE PERTINENT AS RECORDED IN THE ORDER OF THE LD CIT(A), WHERE THE ITO, TDS, CUTTACK WHILE CONDUCTING THE SURVEY U/S.133A OF THE ACT IN THE PREMISES OF BHANJ MINERALS PVT LTD., ON 14.2.2013 FOUND THAT THE ASSE SSEE HAD NOT COLLECTED TAX FROM THE SALES OF IRON ORE AS PER SECTION 206C OF THE ACT. THE ITO FURTHER FOUND THAT SALES OF IRON AMOUNTING TO RS.13,05,77,070/- WERE MADE AFTER 1.7.2012 WITHOUT COLLECTION OF TCS. THE ASSESSEE COULD NOT PRODUCE THE DECLARATIO N IN FORM 27C AS PER THE CRITERIA MENTIONED U/S.206C (1A) OF THE ACT. TO THE SHOW CA USE NOTICE OF THE AO, THE ASSESSEE REPLIED THAT IT HAD PAID TCS AND THAT MOST OF THE S ALES WERE MADE TO MANUFACTURER AND NECESSARY DECLARATION HAVE BEEN OBTAINED FROM THEM IN FORM 27C. THE AO FOUND THE CLAIM OF THE ASSESSEE NOT TENABLE BECAUSE THE FORMS 27C IF COLLECTED SHOULD HAVE BEEN DEPOSITED WITH THE CHIEF COMMISSIONER OR COMMISSION ER OF INCOME TAX AS PER 206C(1A) OF THE ACT ON OR BEFORE 7 TH DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH DECLARATION WAS MADE. THE AO TREATED THE ASSESSEE AS AN ASSESSEE IN DEFAULT AS REGARDS COLLECTION OF TCS AND RAISED A DEMAND OF RS .14,08,341/- ON IT. 3. BEFORE THE LD CIT(A), THE ASSESSEE SUBMITTED THA T IT HAS NOT COLLECTED TAX U/S.206C OF THE ACT FROM THE PURCHASERS AS THEY HAV E ISSUED FORM 27C TO IT DECLARING THAT THEY ARE MANUFACTURERS AND NO TCS SHOULD BE DO NE FROM THE SALE TO THEM. IT HAD ALSO PRODUCED THE COPIES OF FORM NO.27C DURING THE APPEAL HEARING. LD CIT(A) OBSERVED THAT DURING SURVEY U/S. 133A OF THE ACT, T HE ITO (TDS) COULD NOT FIND THE FORM 27C IF COLLECTED FROM THE PURCHASERS BY THE AS SESSEE AS PER ITS CLAIM. MOREOVER, THE ASSESSEE HAS NOT DEPOSITED SUCH FORMS IF COLLE CTED FROM THE PURCHASERS WITH THE ITA NO. 108/CTK/2015 ASSESSMENT YEAR :2013-14 3 CHIEF COMMISSIONER/ COMMISSIONER OF INCOME-TAX AS P RESCRIBED. THUS, THE LD CIT(A) WAS OF THE VIEW THAT PRODUCING THE FORM 27C AFTER THE SURVEY IS CLEARLY AN AFTERTHOUGHT. THEREFORE, THE LD CIT (A) HELD THAT T HE ASSESSEE IS TO BE TREATED AS ASSESSEE IN DEFAULT IN SO FAR AS NOT FULFILLING THE TERMS AND CONDITIONS OF SEC. 206C OF THE ACT. 4. BEFORE US, THOUGH THE ASSESSEE HAS RAISED MULTIP LE GROUNDS, HOWEVER, INSTEAD OF GOING INTO THE MERITS OF THE CASE, WE OBSERVE TH AT ON ONE HAND, THE ASSESSEE STATES THAT FROM THE PURCHASERS, THEY HAVE NOT COLLECTED T AX U/S.206C AS THEY HAVE ISSUED FORM 27C AND THAT SUCH FORM WAS ALSO PRODUCED DURIN G THE APPEAL HEARING. ON THE OTHER HAND, LD CIT(A) WAS OF THE OPINION THAT PRODU CING FORM 27C AFTER THE SURVEY IS CLEARLY AN AFTERTHOUGHT. THE FACT IS THAT THE ASSES SEE FURNISHED THE FORMS AND STATED THAT THE SAME ARE ALSO FILED BEFORE THE AUTHORITY. ONCE THE FORMS ARE OBTAINED THERE IS NO LIABILITY UNDER THE PROVISIONS TO COLLECT TAX. T HEREFORE, IN THE INTEREST OF JUSTICE, IT WOULD BE DEEM AND PROPER TO SEND THIS MATTER BACK T O THE FILE OF THE AO TO EXAMINE WHETHER THE ASSESSEE CAN BE TREATED AS AN ASSESSEE IN DEFAULT AS REGARDS THE COLLECTION OF TCS AMOUNTING TO RS.13,05,770/-. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 /11/20 15 SD/- SD/- . ,/B.RAMAKOTAIAH ,PARTHA SARATHI CHAUDHURY /ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK; '! DATED 5 /11 /2015 B.K.PARIDA, SPS ITA NO. 108/CTK/2015 ASSESSMENT YEAR :2013-14 4 0 0 0 0 (+ (+ (+ (+ 3$+ 3$+ 3$+ 3$+ / COPY OF THE ORDER FORWARDED TO : 0' 0' 0' 0' / BY ORDER, SR. PRIVATE SECRETARY, , / ITAT, CUTTACK 1. ' / THE APPELLANT : BHANJA MINERALS (P) LTD., B-1449, SECTOR-6, CDA, CUTTACK. 2. ()' / THE RESPONDENT. INCOME TAX OFFICER (TDS), AAYAKAR BHAVAN, SHELTER CHHAK, CUTTACK 3. 4 ( ) / THE CIT(A), CUTTACK 4. 4 / CIT , CUTTACK 5 . #5 (+' , / DR, ITAT, CUTTACK 6. 7 8. / GUARD FILE. )+ (+ //TRUE COPY//