M/s. M. interprises, Indore V. The ITO TDS-II, Indore

ITA 111/IND/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91827 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S SHETAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NOS.111 & 112/IND/2014 A.Y. : 2009-10 & 2010-11 M/S. M. INTERPRISES, INDORE ITO, TDS-II, INDORE. VS APPELLANT RESPONDENT PAN NO. : AAQFM5761N APPELLANT BY : SHRI S.S.SHETAL, ADV. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 09 . 0 6 .201 5 DATE OF PRONOUNCEMENT : 09 . 0 6 .201 5 O R D E R PER BENCH THESE TWO APPEALS OF ASSESSEE ARE DIRECTED AGAINST THE ORDERS OF CIT(A)-II, INDORE, DATED 28.11.2013, FOR THE ASSESSMENT YEARS 2008-09 & 2009-10 -: 2: - 2 2. THE ASSESSEE DEDUCTOR IS A FIRM RESPONSIBLE FOR DEDUCTING THE TAX AT SOURCE. THE ASSESSEE IS LIABLE TO PAY TDS FOR PAYMENT OF LEASE RENT AT PRESCRIBED RATE FOR TW O YEARS, WHICH READ AS UNDER :- LIABILITY OF TAX/INTEREST OF THE ASSESSEE DEDUTOR F.Y. AMOUNT OF LEASE RENT PAID AMOUNT OF TDS INCLUDING EC @ 20.6 % DUE DATE NO. OF MONTHS OF DEFAULT UPTO MARCH, 2011 INTEREST PAYABLE U/S 201(1A) TOTAL DEMAND (INTEREST TDS) 2008-09 2,18,684 45,050 1.8.2008 32 14,400 59,450 2009-10 2,18,684 45,050 1.7.2009 21 9,450 54,500 3. THE MATTER CARRIED TO LD. CIT(A) AND THE LD. CIT(A) PARTLY ALLOWED THE APPEALS. 4. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. WE FOUND THAT THE LD. CIT(A) DISMISSED THE APPEALS AND THE AND THE ASSESSING OFF ICER HAS ALSO NOT VERIFIED WHETHER THE AMOUNTS OF TDS SHORT DEDUCTED AT SOURCE WAS THERE OR NOT. THE AO HAS ALSO NOT VER IFIED WHETHER THERE IS ANY SHORT DEDUCTION OF TAX ON THE PAYMENTS -: 3: - 3 WHICH ARE SHOWN IN THE ASSESSMENT ORDERS AND WITHOU T VERIFYING THE SAME, THE AO HELD THAT THE ASSESSEE W AS IN DEFAULT U/S 201(1)/201(1A) OF THE INCOME-TAX ACT, 1 961. AFTER HEARING THE RIVAL SUBMISSIONS, WE NOTED THAT THE CA SE OF THE ASSESSEE IS DULY COVERED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILLY & CO. (INDIA ) (P) LTD. (2009) 312 ITR 225 (SC), WHEREIN, IT HAS BEEN HELD THAT THE PERIOD OF DEFAULT STARTS FROM DATE OF DEDUCTIBILITY OF TAX TILL DATE OF ITS ACTUAL PAYMENT BY THE CONCERNED EMPLOYEE AND ALSO IN THE CASE OF M/S. HINDUSTAN COCA COLA BEVERAGE PVT. LTD. VS. CIT (2007) 293 ITR 226 (SC), WHEREIN, IT HAS BEEN H ELD THAT WHEN THE TAX HAS BEEN PAID BY THE DEDUCTEE-ASSESSEE , THE TAX COULD NOT BE RECOVERED ONCE AGAIN FROM THE ASSESSEE . ALL FACTS ARE NOT BORNE OUT FROM THE ASSESSMENT ORDERS. THERE FORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE T HIS MATTER BACK TO THE FILE OF AO WITH THE DIRECTION THAT THE AO SHALL VERIFY WHETHER THE PAYMENT SHOWN IN THE ASSESSMENT ORDER I S LIABLE FOR TDS OR NOT. SECONDLY, IF THERE IS ANY SHORT DED UCTION OF TAX OR NOT AND IF THERE IS ANY SHORT DEDUCTION OF TAX T HAN THE RECEIPT AND THE PAYEE HAS PAID THE TAX OR NOT AND T HEY HAVE -: 4: - 4 SHOWN IN THE RETURN OF INCOME HAS TO BE VERIFIED FR OM THE CONCERNED ASSESSES. THEREFORE, THIS ALL REQUIRES VE RIFICATION AT THE END OF AO. THE AO SHOULD HAVE VERIFIED THESE FA CTS BEFORE MAKING THE ASSESSMENT AND SHOULD HAVE ALSO DONE THI S EXERCISE. WE FOUND THAT THE AO HAS FAILED TO DO SO. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTOR E BACK THIS ISSUE TO THE FILE OF AO AND THE AO IS DIRECTED TO V ERIFY WHETHER ANY SHORT DEDUCTION OF TAX OR NOT AND WHETHER THE A SSESSEE IS LIABLE FOR INTEREST OR NOT AND WHETHER THE DEDUCTEE HAS PAID TAX OR NOT. THE ASSESSEE IS DIRECTED TO COOPERATE W ITH THE AO AND HE MUST PRODUCE ALL THE RELEVANT EVIDENCE BEFOR E THE AO AND THE AO IS FURTHER DIRECTED TO VERIFY THE SAME A ND DECIDE THE MATTER AFRESH KEEPING IN MIND THE DECISIONS OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILLY & CO . (INDIA) (P) LTD AND HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT (SUPRA). -: 5: - 5 5. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 9 TH JUNE, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :9 TH JUNE, 2015. CPU* 9106