SHRI SHYAM LAL AGRAWAL, RAIGARH(CG) V. INCOME TAX OFFICER-1, RAIGARH,

ITA 111/BIL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4238 (ITAT-RAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Assessee Lawyers: S R RAO
• Keywords: TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHU RY , JM . / I TA NO. 111 /RPR /20 17 / ASSESSMENT YEAR : 2012 - 13 SHYAM LAL AGARWAL, PROP. M/S. S.S. MINERALS, RAIGARH ( C.G.) PAN : AFSPA9511K ....... / APPELLANT / V/S. THE INCOME TAX OFFICER - 1 , AAYAKAR BHAWAN, CHAK RADHAR NAGAR, RAIGARH ( C.G.) / RESPONDENT A SSESSEE BY : SHRI S.R. RAO REVENUE BY : SHRI D.K. JAIN / DATE OF HEARING : 10 .05 .2019 / DATE OF PRONOUNCEMENT : 10 .05 .2019 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS), BILASPUR DATED 28.03.2016 FOR THE ASSESSMENT YEAR 2012 - 13 AS PER THE FOLLOWING GROUNDS OF APPEAL ON RECORD: 2 ITA NO. 111 /RPR /20 17 A.Y. 2012 - 13 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.11,92,282/ - MADE U/S.40(A)(IA) OF THE INCOME TAX ACT,1961. 2. THE ORDER OF THE LD. CIT(APPEALS) IS BAD IN LAW AND ON FACTS. 3. THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER, AMEND, OMIT ALL OR ANY OF THE GROUNDS OF APPEAL WITH PERMISSION OF THE HONBLE APPELLATE AUTHORITY. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ADDITION HAS BEEN MADE IN THIS CASE U/S.40(A)(IA) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR NON - DEDUCTION OF TDS. THE LD. AR OF THE ASSESSEE FURTHER SUBMITTE D THAT IT IS A WELL SETTLED LAW THAT IF THE PAYEE HAS SHOWN THE TOTAL RECEIPTS IN HIS RETURN OF INCOME AND HAVE PAID CORRESPONDING TAXES, IN SUCH CASE, THE PAYER EVEN HE HAS NOT DEDUCTED TDS CANNOT BE TERMED AS ASSESSEE IN DEFAULT AND CONSEQUENTLY, NO DI SALLOWANCE U/S.40(A)(IA) OF THE ACT CAN BE MADE . THAT WHETHER THE RESPECTIVE RECIPIENTS IN THIS INSTANT CASE HAVE PAID TAXES IN THE GOVERNMENT EXCHEQUER FOR THAT VERIFICATION, THE LD. AR OF THE ASSESSEE RELIED ON THE DECISION OF THE CO - ORDINATE BENCH OF RAIPUR IN ITA NO.106/RPR/2016 FOR THE ASSESSMENT YEAR 2010 - 11 WHEREIN ON THE SIMILAR FACTS, THE MATTER WAS REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AND PLACING RELIANCE ON THIS DECISION BEFORE US, ALSO SIMILAR PRAYER IS MADE BY THE L D. AR OF THE ASSESSEE. 3. PER CONTRA, THE LD. DR HAS PLACED RELIANCE ON THE ORDERS OF THE SUB - ORDINATE AUTHORITIES. 3 ITA NO. 111 /RPR /20 17 A.Y. 2012 - 13 4. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS AND ANALYZED THE FACTS AND CIRCUMSTANCES IN THIS CASE. WE WOULD LIKE T O START THE ADJUDICATION BY MENTIONING THAT INCOME TAX LAWS ARE WELFARE LEGISLATION AND NOT PENAL LEGISLATION. MEANING THEREBY, THE ASSESSEE OR TAX PAYER IF HE HAS A BONA - FIDE FOOTING THEN IN SUCH CASE MINOR OMISSION S IS ALWAYS GIVEN A FAV OURABLE CONSIDER ATION. THE SETTLE D PRINCIPLE OF LAW IS THAT IF THE PERSON WHO IS RESPONSIBLE TO DEDUCT TDS AND PAY TO THE GOVERNMENT EXCHEQUER OMITS TO DO THAT BUT THE RECIPIENT BRINGS THE SAME AMOUNT IN HIS RETURN OF INCOME AND PAYS NECESSARY TAXES IN THE GOVERNMENT EXCH EQUER THEN FOR THE FACT THAT THE REVENU E IS NOT DEFRAUDED AND ALSO FOR THE FACT THAT TAXES HAS BEEN PAID IN THE GOVERNMENT EXCHEQUER, THE ACTUAL PAYER WHO WAS SUPPOSED TO DEDUCT TDS, HIS LIABILITY IS ABSOLVED. THE SIMPLE OBJECT IS THAT TO VERIFY THE BONA - FIDE CHARACTER OF THE ASSESSEE AND WHETHER IN THE ULTIMATE RESULT NECESSARY TAXES HAVE BEEN PAID IN THE GOVERNMENT EXCHEQUER . THE LD. AR FAIRLY SUBMITTED BEFORE US THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR THIS LIMITED VERIF ICATION. WE ARE IN AGREEMENT WITH SUCH SUBMISSIONS PLACED BEFORE US. IN VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY WHETHER THE PAYEE IN THIS CASE HAS BROUGHT IN HIS RETURN OF INCOME THE NECESSARY RECEIPTS FROM THE PAYER AND WHETHER TAXES ON THESE RECEIPTS HAVE BEEN PAID BY SUCH PAYEE. NEEDLESS TO SAY THE ASSESSING OFFICER SHALL GRANT 4 ITA NO. 111 /RPR /20 17 A.Y. 2012 - 13 REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE IN ACCORDANCE WITH LAW AND AT T HE SAME TIME ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH THE NECESSARY DETAILS CALLED FOR BY THE ASSESSING OFFICER. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 10TH DAY OF MA Y , 201 9 . SD/ - SD/ - ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / RAIPUR ; / DATED : 10 TH MA Y, 2019 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS), BILASPUR. 4. THE CIT, BILASPUR. 5. , , , / DR, ITAT, RAIPUR BENCH, RAIPUR . 6. / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, RAIPUR . 5 ITA NO. 111 /RPR /20 17 A.Y. 2012 - 13 DATE 1 DRAFT DICTATED ON 10 .05 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 10 .05 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 6 ITA NO. 111 /RPR /20 17 A.Y. 2012 - 13 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER