Indra Gandhi National Tribunal University, V. Income Tax Officer(TDS-2),

ITA 115/JAB/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5579 (ITAT-JABALPUR)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 28-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D R LATHORIYA
• Assessee Lawyers: MUKESH AGARWAL
• Keywords: Principle of natural justice; Reasonable cause

Judgement Text

1 I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BEFORE S/SHRI N.S. SAINI (AM) N. K. CHOUDHRY (JM ) I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) INDIRA GANDHI NATIONAL TRIBAL UNIVERSITY, MEKAL SADAN, KAPIL DHARA ROAD, AMARKANTAK (MP) VS. THE INCOME TAX OFFICER, TDS- 2, JABALPUR PAN/GIR NO. : JBPIO 0539A ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SH. MUKESH AGARWAL RESPONDENT BY : SH. D.R.LATHORIYA DATE OF HEARING : 08-04-2016 DATE OF PRONOUNCEMENT : 08-04. 2016 O R D E R PER NARENDRA KUMAR CHOUDHRY, JM BOTH THE APPEALS FILED BY THE ASSESSEE ARE EMANATING FROM SEPARATE ORDERS BOTH DATED 17.12.2014 OF THE LD CIT(A)-1, JABALPUR FOR TH E ASSESSMENT YEARS 2011-12 & 2012-2013, RESPECTIVELY, UNDER SECTION 201(1)/201(1A)O F THE ACT. 2. IN ITA NO.115/JAB/15 FOR A.Y. 2011-12, GROUNDS RA ISED ARE AS UNDER: 1.THAT THE APPELLATE ORDER PASSED BY THE LD CIT(A) I S ILLEGAL VOID AND WITHOUT JURISDICTION. 2. THAT LD CIT(A) DISMISS THE APPEAL WITHOUT GIVING PR OPER OPPORTUNITY OF HEARING TO THE ASSESSEE. 2 I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) THAT WITHOUT CONSIDERING THE REPLY FILED BEFORE AO . 3. THAT LD CIT(A) ERRED IN REJECTING THE APPLICATION U/R 46A FILED BY THE APPELLANT. 4. THAT WITHOUT PREJUDICE TO OTHER GROUNDS LD CIT(A), EARED IN DECIDING THE APPEAL WITHOUT TAKING INTO CONSIDERATION THE GROUNDS RA ISED BY THE APPELLANT. 5. THAT THE LD A.O, HAS ERRED IN NOT CONSIDERING THE C IRCULAR NO 275 DATED 29.01.1997 ISSUED BY THE CBDT, WHICH IS BINDING ON THE DEPARTMENT. 6. THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE L D AO HAS ERRED IN TREATING THE ACTIVITY OF DEDUCTEE AS PROFESSIONAL SERVICE PROVIDER, WHEREAS THE ACTIVITY OF THE DEDUCTEE WAS PURELY OF THE WORKS CONTRACTOR. 7.. THAT THE LD C!T(A| ERRED IN LAW AND FACTS IN S USTAINING THE AMOUNT OF SHORT DEDUCTION OF RK . 80,288 ON A/C OF TOPOLOGICAL SURVEY. 8. THAT THE LD A.O. HAS ALSO ERRED IN NOT CONSIDERING T HE LAW LAID DOWN BY HON'BLE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA, REPORTED IN (2007) 293 ITR 226. WHEREIN, IT IS SPECIFICALLY HELD THAT ONCE THE DEDUCTEE HAD PAID INCOME TAX ON THE AMOUNT RECEIVED FROM THE DEDUCT OR, DEPART MENT ONCE AGAIN CANNOT RECOVER TAX FROM THE DEDUCTOR ON THE SAME INCOME BY TREAT ING DEDUCT OR TO BE ASSESSCER IN DEFAULT FOR SHORTFALL IN ITS AMOUNT OF TAX D EDUCTED AT SOURCE. 9. THAT THE LD C1T (A) ERRED IN LAW AND ON FACTS IN SUSTAINING THE INTEREST U/S 201(1A) AT RS. 28.101/- . 10. THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE Q UANTUM OF ADDITIONS MADE BY THE AO IS ARBITRARY EXCESSIVE AND HIGH UNDER THE FACTS AND CIRCUMSTANCE OF THE CASE. 3. IN ITA NO.116/JAB/15 FOR A.Y. 2012-13, GROUNDS RAI SED BY THE ASSESSEE AS UNDER: 1. THAT THE APPELLATE ORDER PASSED BY THE LD CIT(A) IS ILLEGAL VOID AND WITHOUT JURISDICTION. 2. THAT THE LD A.O. HAS ERRED IN NOT CONSIDERING THE C IRCULAR NO 275 DATED .29.01,1997 ISSUED BY THE CBDT, WHICH IS BINDING ON THE DEPARTMENT. 3. THAT LD CIT(A) DISMISS THE APPEAL WITHOUT GIVING P ROPER OPPORTUNITY OF HEARING TO THE ASSESSEE, THAT WITHOUT CONSIDERING THE RE PLY FILED BEFORE AO. 3 I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) 4. THAI LD CIT(A) ERRED IN REJECTING THE APPLICATION U/R 46A FILED BY THE APPELLANT. 5. THAT THE LD CIT(A) ERRED IN LAW AND FACTS IN SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS. 39,79,520 ON A/C OF PAYMENT TO NPCC FOR ACADEMIC BLOCK. 6. THAT THE LD C1T(A) ERRED IN LAW AND FACTS IN SUSTAI NING THE AMOUNT OF SHORT DEDUCTION OF RS. 37,22,260 ON A/C OF PAYMENT TO NPCC FOR ADMINISTRATIVE BLOCK. 7. THAT THE LD C1T(A| ERRED IN LAW AND FACTS IN SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS, 7,14,489 ON A/C OF PAYMENT TO NPC C {'OR CONSTRUCTION OF BOUNDRY WALL. 8. THAT THE LD C1T(A) ERRED IN LAW AND FACTS IN SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF US. 7,69,380 ON A/C OF PAYMENT TO N PCC FOR CONSTRUCTION OF BOUNDRY WALL. 9. THAT THE LD C1T(A) ERRED IN LAW AND FACTS IN SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS. 13,1 1,555 ON A/C OF PAYMENT TO NPCC FOR CONSTRUCTION OF INTERNAL ROAD. 10. THAT THE LD CIT(A) ERRED IN LAW AND FACTS I N SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS, 3,82,158 ON A/C OF PAYMENT TO N PCC FOR CONSTRUCTION OF INTERNAL ROAD AND ALIIED STRUCTURES. 11. THAT THE LD CIT(A) ERRED IN LAW AND FACTS I N SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS. 5,63,098 ON A/C OF PAYMENT TO N PCC FOR CONSTRUCTION OF LINK ROAD. 12 THAT THE LD C1T(A) ERRED IN LAW AND FACTS I N SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS. 18,89,900 ON A/C OF PAYMENT TO NPCC FOR CONSTRUCTION OF HOSTEL BUILDING. 13 THAT THE LD CITIA) ERRED IN LAW AND FACTS IN SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS. 4,250 ON A/C OF PRINTING AND STAT IONERY. 14. THAT THE LD C1T(A) ERRED IN LAW AND FAC TS IN SUSTAINING THE AMOUNT OF ABORT DEDUCTION OF RS. 2,09,272 ON A/C OF ABN ENGIN EERING, 15 THAT THE LD C1T(A| ERRED IN LAW AND FACTS IN SUSTAI NING THE AMOUNT OF SHORT DEDUCTION OF RS. 305 ON A/C OF ADVERTISEMENT EXPENSES, 16 THAT THE LD C1T(A) ERRED IN LAW AND FACTS I N SUSTAINING THE AMOUNT OF SHORT DEDUCTION OF RS, 4,500 ON A/C OF LEGAL EXPENSES.. 17. THAT THE LD A.O. HAS ALSO ERRED IN NOT CONSID ERING THE LAW LAID DOWN BY HON'BLE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA, REPORTED IN (2007) 293 ITR 226, WHEREIN, IT IS SPECIFICALLY HELD THAT ONCE THE DEDUCTEE HAD PAID INCOME TAX ON THE AMOUNT RECEIVED FROM THE DEDUCT OR, DEPART MENT ONCE AGAIN CAN NOT 4 I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) RECOVER TAX FROM THE DEDUCT OR ON THE SAME INCOME BY TRE ATING DEDUCT OR TO BE ASSCSSEE IN DEFAULT FOR SHORTFALL IN ITS AMOUNT OF LAX DE DUCTED AT SOURCE. 18. THAT THE LD CIT (A) ERRED IN LAW AND ON F ACTS IN SUSTAINING THE INTEREST U/S 201[1A| AT RS, 31,16,636/-. 19. THAT THE AO ERRED BOTH IN LAW & ON FACTS IN TREA TING ASSESSEE AN ASSESSEE IN DEFAULT. 20,. THAT WITHOUT PREJUDICE TO OTHER GROUND LD CIT(A ) ERRED IN DECING THE APPEAL WITHOUT TAKING INTO CONSIDERATION THE GROUNDS RAISED B Y THE APPELLANT. 21. THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE Q UANTUM OF ADDITIONS MADE BY THE AO IS ARBITRARY EXCESSIVE AND HIGH UNDER THE FACT S AND CIRCUMSTANCES OF THE CASE. 4. AT THE TIME OF HEARING, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE REFERRED TO GROUND NO.2 FOR ASSESSMENT YEAR 2011-12 AND GROUND NO. 3 FOR A.Y. 2012-13 AND CONTENDED THAT THE LD CIT(A) DISMISSED THE APPEALS OF T HE ASSESSEE WITHOUT GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE AND WIT HOUT CONSIDERING THE REPLY FILED BEFORE THE AO. HE SUBMITTED THAT AT THE LAST ADJOUR NMENT DATED 10.12.2014, THE ASSESSEE WAS BUSY BEFORE THE HONBLE HIGH COURT AND NECESSA RY DOCUMENTS/PREPARATION COULD NOT BE MADE. TO SUPPORT T HE ABOVE CONTENTION, THE ASSESSEE HAS FILED AN AFFIDAVIT FROM THE COUNSEL TO DEMONST RATE THAT HE WAS HAVING REASONABLE CAUSE FOR NOT APPEARING ON 10.12.2014. HE REQUESTED THAT THE MATTER BE RESTORED BACK TO THE FILE OF THE LD CIT(A) TO DECIDE TH E APPEALS AFRESH AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND ALSO TO CONSIDER THE REP LY WHICH WAS FILED BEFORE THE AO. 5. ON OTHER HAND, LD D.R. SUBMITTED THAT MAXIMUM OPP ORTUNITIES HAVE BEEN ALLOWED TO THE ASSESSEE AS IS EVIDENT FROM THE ORDER OF THE LD C IT(A) AND, THEREFORE, THE PLEA OF 5 I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) THE ASSESSEE IS WITHOUT ANY BASIS AND NO FURTHER OPPORTU NITY SHOULD BE GRANTED TO THE ASSESSEE. 6. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE FI ND THAT THE ASSESSEE IS A CENTRAL UNIVERSITY ESTABLISHED BY AN ACT OF PARLIAMENT AND IS FULLY FUNDED BY THE CENTRAL GOVERNMENT THROUGH THE UNIVERSITY GRANT COMMISSION. WE FIND THAT MAIN CONTENTION OF THE ASSESSEE THAT THE AO TREATED THE ACTIVITY OF THE ASSE SSEE-DEDUCTEE AS PROFESSIONAL SERVICE PROVIDER, WHEREAS ACTUALLY THE ACTIVITY OF THE A SSESSEE IS PURELY OF WORKS CONTRACTOR. THIS PLEA OF THE ASSESSEE WHETHER HE IS WORKS CO NTRACTOR OR PROFESSIONAL PROVIDER HAS TO BE DECIDED BEFORE PASSING THE ORDER. ON PERUSAL OF ORDER OF THE LD CIT(A), WE ALSO OBSERVE THAT LD CIT(A) HAS ALLOWED SE VERAL OPPORTUNITIES TO THE ASSESSEE BEFORE PASSING THE ORDERS. WE ALSO OBSERVE THAT IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS NOT GIVEN DUE HONOUR TO T HE NOTICES ISSUED BY LD CIT(A) OR ADJOURNMENT BUT ALSO REQUESTED SOME TIME TO PREPAR E WRITTEN SUBMISSIONS. HOWEVER, LD CIT(A) HAS NOT GIVEN MORE TIME AND DECIDE D THE APPEAL WITHOUT AFFORDING OPPORTUNITY TO THE ASSESSEE. WE ALSO OBSERVE THAT THE A UTHORITIES HAVE NOT CONSIDERED THE REPLY FILED BEFORE THE AO, WHICH, IN OUR CONSIDER ED OPINION, ARE A DIRECT BEARING AS WELL AS VITAL IMPACT ON THE ISSUE RAISED AS PER THE GROUN D. ALTHOUGH, IT IS CORRECT THAT THE ASSESSEE WAS GRANTED OPPORTUNITY OF HEARING BY THE REVEN UE AUTHORITIES BUT STILL THE NATURAL JUSTICE DEMANDS TO BE FAIR AND REASONABLE TOWA RDS A TAXPAYER SO THAT A RIGHTFUL TAX CAN BE RECOVERED FROM HIM. IT IS WELL SETTLED LAW THAT A LITIGANT SHOULD NOT BE THROWN OUT OF LITIGATION AT THE VERY THRESHOLD. WE, THEREF ORE, DEEM IT PROPER AND JUSTIFIABLE TO RESTORE THIS ISSUE TO THE FILE OF THE CIT(A) SO THAT HE CAN DECIDE THE ISSUE ON MERITS AFTER 6 I.T.A. NOS.115 & 116 /JAB/2015 (ASSESSMENT YEARS 2011-12 & 2012-13) AFFORDING REASONABLE OPPORTUNITY TO BOTH THE SIDES AS PER LAW. NEEDLESS TO DIRECT, THE SSESSEE SHOULD FULLY COOPERATE WITH THE PROCEEDINGS TO GET THE MATTER RESOLVED AT AN EARLY DATE. SINCE WE HAVE RESTORED THE ISSUE FOR DENOV O CONSIDERATION, THEREFORE, THE GROUNDS RAISED BY THE ASSESSEE MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8 /4/2016 . SD/- SD/- (N.S.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER JABALPUR, DATED 8 / 4/2016 PARIDA , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT : INDIRA GANDHI NATIONAL TRIBAL UNIVERSITY, MEKAL SADAN, KAPIL DHARA ROAD, AMARKANTAK (MP) 2. THE RESPONDENT: THE INCOME TAX OFFICER, TDS- 2,JABALPUR 3. THE CIT(A). JABALPUR 4. CIT . JABALPUR 5. DR, ITAT, JABALPUR 6. GUARD FILE. BY ORDER, //TRUE COPY// SR. PS, ITA T, CAMP: JA BALPUR