VISHESH FILMS PVT LTD., MUMBAI V. JCIT (OSD) (TDS), CIRCLE-2(3), MUMBAI

ITA 1106/MUM/2023

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Vishesh Films Pvt. Ltd. appealed against the order of the Ld. Commissioner of Income-tax (Appeals) - National Faceless Appeal Centre, which dismissed their appeal as infructuous. The original dispute arose from a difference in the TDS amounts calculated under section 194C and section 194J of the Income Tax Act, 1961, for the assessment year 2020-21. The Assessing Officer had treated the assessee as 'in default' for deducting tax at a lower rate than prescribed. The Tribunal noted that the Ld. CIT(A) had dismissed the appeal without considering the relevant order for the correct assessment year, leading to the restoration of the case to the Ld. CIT(A) for a decision on merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123483 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: F
• Next Hearing Date: 12-07-2023
• Assessment Year: 2020-2021
• Appeal Filed On: 04-04-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL MATHEWS
• Keywords: TDS
• Section: 194C; 201(1); 201; 194J

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No. 1106/MUM/2023 Assessment Year: 2020-21 Vishesh Films Pvt. Ltd., 402, Durga Chambers, Linking Road, Khar (West), Mumbai-400052. Vs. JCIT (OSD) (TDS), Circle 2(3), MTNL, Telephone Exchange Building, Cumballa Hills, Peddar Road, Mumbai-400026. PAN NO. AAACV 9556 D Appellant Respondent Assessee by : None Revenue by : Mr. Sunil Mathews, DR Date of Hearing : 13/07/2023 Date of pronouncement : 25/07/2023 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is preferred against order dated 07.02.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2020-21, raising following grounds: 1. On the facts and circumstances of the case and in law the Ld. Commissioner of Income-tax (Appeals ). NFAC, Income-tax Department, New Delhi herein after referred to as Ld. CIT (A) erred in dismissing the appeal filed on the ground that TDS on payment to Junior artists are covered by the provisions of Section 194C and not 194J of the Income infructuous and not on merits. 2. (a) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised by the Ld AO amounting Rs. 1,55,506/ 201(1) of the Act being difference between TDS originally computed by the appellant under section 194C of the Act and as calculated by the Ld AO under section 194J of the Act without considering the meri (b) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised by the Ld AO amounting Rs. 21,391/ of the Act without considering the merits of the case. (c) That on the f Appellant cannot be treated as an "assessee in default" under section 201(1) of the Act where the payees have admitted the income and paid the tax due in their return of income. (d) Alternately, the Ld appeal on merit and pass the order on the grounds raised by the Appellant. 3. That the order is bad in law and on the facts. 2. Briefly stated facts of the case are that the Ld. CIT(A) dismissed the appeal of the asse 4 From perusal of the Form No 35 submitted, the issue for consideration in appeal is in respect of the order us 201 of the I.T. 1,55,506/- being the difference between computed by and as calculated by him under section 194J of the Act. As per form No 35, appellant has filed appeal against the order u/s 201 passed on 02.11.2020 for AY 2020 However, appellant has not submitted the copy o Appellant has submitted the copy order for AY 2019 ITA No. of the Income-tax Act, 1961(Act) by treating the same as infructuous and not on merits. 2. (a) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised by the Ld AO amounting Rs. 1,55,506/- under section 201(1) of the Act being difference between TDS originally computed by the appellant under section 194C of the Act and as calculated by the Ld AO under section 194J of the Act without considering the merits of the case. (b) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised by the Ld AO amounting Rs. 21,391/- under section 201(1) of the Act without considering the merits of the case. (c) That on the facts and circumstances of the case the Appellant cannot be treated as an "assessee in default" under section 201(1) of the Act where the payees have admitted the income and paid the tax due in their return of income. (d) Alternately, the Ld CIT (A) be directed to dispose of the appeal on merit and pass the order on the grounds raised by the Appellant. 3. That the order is bad in law and on the facts. Briefly stated facts of the case are that the Ld. CIT(A) dismissed the appeal of the assessee observing as under: From perusal of the Form No 35 submitted, the issue for consideration in appeal is in respect of the order us 201 Act requiring the TDS amounting Rs. being the difference between TDS originally computed by the appellant under section 194C of the Act and as calculated by him under section 194J of the Act. As per form No 35, appellant has filed appeal against the order u/s 201 passed on 02.11.2020 for AY 2020 However, appellant has not submitted the copy o Appellant has submitted the copy order for AY 2019 Vishesh Films Pvt. Ltd. 2 ITA No. 1106/Mum/2023 tax Act, 1961(Act) by treating the same as 2. (a) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised under section 201(1) of the Act being difference between TDS originally computed by the appellant under section 194C of the Act and as calculated by the Ld AO under section 194J of the (b) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised by under section 201(1) of the Act without considering the merits of the case. acts and circumstances of the case the "assessee in default" under section 201(1) of the Act where the payees have admitted the income and paid the CIT (A) be directed to dispose of the appeal on merit and pass the order on the grounds raised Briefly stated facts of the case are that the Ld. CIT(A) ssee observing as under: From perusal of the Form No 35 submitted, the issue for consideration in appeal is in respect of the order us 201 Act requiring the TDS amounting Rs. TDS originally the appellant under section 194C of the Act and as calculated by him under section 194J of the Act. As per form No 35, appellant has filed appeal against the order u/s 201 passed on 02.11.2020 for AY 2020-21. However, appellant has not submitted the copy of order. Appellant has submitted the copy order for AY 2019-20 for which appeal has already been decided. Accordingly, appellant was requested to submit copy of the order for AY 2020-21. vide notices dated on 21.12.2022 and 03.01.2023. appellant in its reply dated 03.01.2023 requested for adjournment up to 05.01.2023. Accordingly, a notice dated 17.01.2023 was issued to the appellant to submit the copy of order. However, appellant neither submitted the copy of order no 4.1 Under such circumstance, where appellant has not submitted the copy of order us. 201 of the Act for AY 2020-21 against which it has preferred to contest in appeal, it is not possible for this office to pass any order on merits. In absence of proper order against which appeal filed, it is not possible to adjudicate the matter. Accordingly, the appeal is treated as infructuous and is hereby dismissed on account of want of order appeal against.” 3. We find that the order u/s 201 of the income passed by the Assessing Officer holding the assessee in default for deducting tax at source at rate lower than prescribed, but by mistake filed the order u/ the appeal papers. The Ld assessee mainly for the reason that order u/s 201 assessment year under consideration was not filed by the assessee. In our opinion, the Ld. CIT(A) could have u/s 201 of the Act for the year under consideration from the record of the Assessing Officer also rather than dismissing the appeal on this ground. In the interest of the substantial justice, we feel it ITA No. for which appeal has already been decided. Accordingly, appellant was requested to submit copy of the order for 21. vide notices dated on 21.12.2022 and In response to notice dated 21.12.2022 appellant in its reply dated 03.01.2023 requested for adjournment up to 05.01.2023. Accordingly, a notice dated 17.01.2023 was issued to the appellant to submit the copy of order. However, appellant neither submitted the copy of order nor requested any adjournment. Under such circumstance, where appellant has not the copy of order us. 201 of the Act for AY 21 against which it has preferred to contest in appeal, it is not possible for this office to pass any order its. In absence of proper order against which appeal filed, it is not possible to adjudicate the matter. Accordingly, the appeal is treated as infructuous and is dismissed on account of want of order appeal We find that the assessee filed appeal to the ld CIT(A) against of the income-tax Act, 1961 ( in short the Act ) passed by the Assessing Officer holding the assessee in default for deducting tax at source at rate lower than prescribed, but by mistake filed the order u/s 201 of the Act for earlier year along with the appeal papers. The Ld. CIT(A) dismissed the appeal of the assessee mainly for the reason that order u/s 201 of the Act assessment year under consideration was not filed by the assessee. n, the Ld. CIT(A) could have accessed u/s 201 of the Act for the year under consideration from the record of the Assessing Officer also rather than dismissing the appeal on In the interest of the substantial justice, we feel it Vishesh Films Pvt. Ltd. 3 ITA No. 1106/Mum/2023 for which appeal has already been decided. Accordingly, appellant was requested to submit copy of the order for 21. vide notices dated on 21.12.2022 and e dated 21.12.2022 appellant in its reply dated 03.01.2023 requested for adjournment up to 05.01.2023. Accordingly, a notice dated 17.01.2023 was issued to the appellant to submit the copy of order. However, appellant neither submitted Under such circumstance, where appellant has not the copy of order us. 201 of the Act for AY 21 against which it has preferred to contest in appeal, it is not possible for this office to pass any order its. In absence of proper order against which appeal filed, it is not possible to adjudicate the matter. Accordingly, the appeal is treated as infructuous and is dismissed on account of want of order appeal led appeal to the ld CIT(A) against tax Act, 1961 ( in short the Act ) passed by the Assessing Officer holding the assessee in default for deducting tax at source at rate lower than prescribed, but by s 201 of the Act for earlier year along with . CIT(A) dismissed the appeal of the of the Act for the assessment year under consideration was not filed by the assessee. accessed the said order u/s 201 of the Act for the year under consideration from the record of the Assessing Officer also rather than dismissing the appeal on In the interest of the substantial justice, we feel it appropriate to restore the issue back to the file of the Ld. CIT(A) in view of copy of the order u/s 201 of the Act filed before us by the assessee which is part of the appeal folder. In the circumstances, the appeal is restored back to the file of the Ld. afresh. The grounds raised by the assessee are allowed for statistical purposes. 4. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on Sd/ (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 25/07/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// ITA No. appropriate to restore the issue back to the file of the Ld. CIT(A) in view of copy of the order u/s 201 of the Act filed before us by the assessee which is part of the appeal folder. In the circumstances, restored back to the file of the Ld. CIT(A) for deciding afresh. The grounds raised by the assessee are allowed for In the result, the appeal filed by the assessee is allowed for statistical purposes. nounced in the open Court on 25/07/2023. Sd/- Sd/ RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Vishesh Films Pvt. Ltd. 4 ITA No. 1106/Mum/2023 appropriate to restore the issue back to the file of the Ld. CIT(A) in view of copy of the order u/s 201 of the Act filed before us by the assessee which is part of the appeal folder. In the circumstances, CIT(A) for deciding afresh. The grounds raised by the assessee are allowed for In the result, the appeal filed by the assessee is allowed for /07/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai