The Income Tax Officer, Jammu V. BABA GHULAM SHAH BADSHAH UNIVERSITY , Rajouri.

ITA 120/ASR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1430 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-10-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKSHUN GU PTA LD CAS
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.120(ASR)/2017 ASSESSMENT YEAR:2011-12 INCOME TAX OFFICER TDS, AAYAKAR BHAWAN RAIL HEAD COMPLEX, JAMMU VS. THE DEPUTY REGISTRAR (FINANCE) (PERSON RESPONSIBLE) BABA GHULAM SHAH BADSHAH UNIVERSITY, RAJOURI. [PAN:AMRB1 0719C] (APPELLANT) (RESPONDENT) APPELLANT BY: SH. R.K.GUPTA & AKSHUN GU PTA (LD. CAS.) RESPONDENT BY: SH. CHARAN DASS (LD. DR) DATE OF HEARING: 29.10.2018 DATE OF PRONOUNCEMENT: 16.11.2018 ORDER PER N.K. CHOUDHRY THE INSTANT APPEAL HAS BEEN FILED BY THE REVENUE DEPA RTMENT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 10.11.2 016 PASSED BY THE LD. CIT(A)-JAMMU, U/S 250(6) OF THE I.T. ACT, 1961 (H EREINAFTER CALLED AS THE ACT). 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN RS.20 LACS, HENCE, THE PRESENT APPEAL FILED BY THE REVENUE DEPART MENT IS LIABLE TO BE DISMISSED, BEING NOT MAINTAINABLE, IN VIEW OF THE L ATEST CBDT INSTRUCTION NO.03 OF 2018, DATED 11.07.2018. ITA NO.120(ASR)/2017 (A.Y.2011-12) ITO VS. THE DEPUTY REGISTRAR (FINANCE) RAJOURI 2 3. THE REVENUE DEPARTMENT HAS FILLED THE APPLICATION (R EPRODUCED HEREIN BELOW) FOR WITHDRAWAL OF THE INSTANT APPEAL IN VIEW OF CIRCULAR NO. 3/2018 AS REFERRED ABOVE. ITA NO.120(ASR)/2017 (A.Y.2011-12) ITO VS. THE DEPUTY REGISTRAR (FINANCE) RAJOURI 3 ITA NO.120(ASR)/2017 (A.Y.2011-12) ITO VS. THE DEPUTY REGISTRAR (FINANCE) RAJOURI 4 ALTHOUGH THE REVENUE DEPARTMENT THROUGH LD. D.R. HA D FILED THE AFORESAID APPLICATION FOR WITHDRAWAL OF THE APPEAL, HOWEVER DURING THE COURSE OF HEARING OF APPEAL, THE DR REFUTED THE CLAIM OF THE ASSESSEE BY SAYING THAT THE CASE OF THE ASSESSEE DOES NOT FALL UNDE R THE AFORESAID CBDT CIRCULAR IN VIEW OF PARA NO.4 OF THE CIRCULAR, THE TAX EFFECT HAS BEEN PRESCRIBED AS TAX EFFECT MEANS THE DIF FERENCE BETWEEN THE TAX ON THE TOTAL INCOME ASSESSED AND THE TAX THAT WOULD HAVE BEEN CHARGEABLE HAD SUCH INCOME BEEN REDUCED BY THE AMOUNT OF INCOME IN RESPECT OF THE ISSUES AGAINST WHICH APPEAL IS INTENDED TO BE FILED (HEREINAFTER REFERRED TO AS A DISPUTED ISSUE S). FURTHER, TAX EFFECT SHALL BE TAX INCLUDING APPLICABLE SURCHARGE AND CE SS. HOWEVER, THE TAX WILL NOT INCLUDE ANY INTEREST THEREON, EXCEPT WHERE CHARGEABILITY OF INTEREST ITSELF IS IN DISPUTE. IN CASE T HE CHARGEABILITY OF INTEREST IS THE ISSUE UNDER DISPUTE, THE AMOUNT OF INTER EST SHALL BE THE TAX EFFECT. IN CASES WHERE RETURNED LOSS IS REDUCED OR ASSESSED AS INCOME, THE TAX EFFECT WOULD INCLUDE NOTIONAL TAX ON DISPUTED ADDITIONS. IN CASE OF PENALTY ORDERS, THE TAX EFFECT WIL L MEAN QUANTUM OF PENALTY DELETED OR REDUCED IN THE ORDER TO BE APP EALED AGAINST. 3. IN REPLY TO THE OBJECTION OF THE LD. DR, THE LD. AR EMPHASIZED EVEN FOR THE SAKE OF ARGUMENT IF THE CASE OF THE ASSESSEE DOES NOT FALL WITHIN THE PARAMETERS OF THE CIRCULAR, STILL THE CASE OF THE ASSESSEE IS AT STRONG FOOTING ON MERIT AND THE REVENUE DEPARTMEN T HAS NO CASE TO SUCCEED BECAUSE THE LD. CIT(A) HAS PASSED THE WELL-REASONED ORDER WHILE CONSIDERING AND FOLLOWING THE RELEVANT PROVISION S OF LAW AND MANDATES OF THE HIGHER COURTS. ITA NO.120(ASR)/2017 (A.Y.2011-12) ITO VS. THE DEPUTY REGISTRAR (FINANCE) RAJOURI 5 4. HAVING HEARD THE RIVAL PARTIES AND PERUSED THE RECORD. THE LD. CIT(A) VIDE IMPUGNED ORDER SET ASIDE THE ORDER PA SSED BY THE ASSESSING OFFICER BY HOLDING THAT SINCE THE DEDUCTEES HAVE COMPLIED WITH THE PROVISIONS OF LAW, THEREFORE THE PR SHOULD N OT HAVE BEEN HELD TO BE ASSESSEE IN DEFAULT FOR THE PURPOSE OF SEC.201 & 2 01(1A) OF THE ACT. FURTHER, WHILE RELYING UPON THE CASE OF ITO VS. BL OCK DEVELOPMENT OFFICER, SUNDERBANI, DSTT. RAJOURI IN ITA NO.63(ASR)/2 014 DATED 11.03.2015 DECIDED BY THE JURISDICTIONAL ITAT BENCH AT AMRITSAR, HELD THAT TDS CANNOT BE DEDUCTED @ 20% WHERE PANS ARE AVAIL ABLE. AS IN THE INSTANT CASE, THE LD. AO HAS HIMSELF QUOTED PAN NOS. IN THE ANNEXURE A, B & C AS ENCLOSED WITH THE ORDER PASSE D U/S 201 AND 201(A) OF THE ACT. FURTHER, THE LD. CIT(A) ALSO RESPECTFULLY FOLLOWED THE JUDGMENT PASSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF A. KOWSALAYA BAI & ORS. VS. UNION OF INDIA IN WRIT PETITI ON 12780- 12782/2010 (T) REPORTED IN (2012) 22 TAXMANN.COM 157 (KAR.) AND FURTHER HELD THAT PROVISIONS OF SEC.206AA OF THE ACT IS APPLICABLE TO THE PERSONS, WHOSE INCOME IS ABOVE TO THE TAXABLE LIMIT. AS THE CASE OF THE ASSESSEE SQUARELY COVERED BY THE DECISION OF THE HONBLE HIGH COURT, THEREFORE, THE ASSESSMENT CANNOT BE UPHELD. THE L D. CIT(A) ALSO EMPHASIZED IN ITS ORDER THAT AS PER ANNEXURE A ENCLOSED WITH THE ASSESSMENT ORDER SHOWS THAT PANS HAVE BEEN QUOTED AGAINST EACH PERSON MENTIONED IN THE ANNEXURE EXCEPT THE PERSONS MEN TIONED AT SERIAL NO.24,46,55,56,57 & 58 , HOWEVER THE ASSESSEES COUNSEL IN RESPECT OF SERIAL NO.55,56,57&58 OF ANNEXURE A, IN O RDER TO SHOW HAVING BEEN MENTIONED PANS, FURNISHED THE COPIES OF BI LLS AND QUARTERLY RETURNS QUA SH. VIPIN KUMAR, WHERE THE ASSE SSEE DULY REFLECTED PERMANENT ACCOUNT NOS. OF THE PERSONS MENTIONED AT SERIAL ITA NO.120(ASR)/2017 (A.Y.2011-12) ITO VS. THE DEPUTY REGISTRAR (FINANCE) RAJOURI 6 NO.55 TO 58 WHILE UPLOADING THE QUARTERLY RETURNS. E VEN THE LD. CIT(A) WAS FULLY SATISFIED WITH THE EVIDENCE PRODUCED BY THE ASSE SSEE WITH REGARD TO THE QUOTING OF THE PAN NOS. AND THEREFORE, HELD THAT THERE IS NO SHORT DEDUCTION ON THE PART OF THE PR WITH REGARD TO THE SERIAL NO.24 & 46 OF ANNEXURE A AS THE ASSESSEE HAD GIVEN THE PAN NOS. OF MOHD. IBRAHIM MENTIONED IN SERIAL NO.24 AS AGFPK3889 A AND AGAINST THE SERIAL NO. 46 QUA SAGARMAL WEEKLY AS MAUPB3445L AND SUBMITTED THAT WHEN QUARTERLY RETURNS HAVE BEEN FILED WITH THE PERMANENT ACCOUNTS NOS. OF THE DEDUCTEE WITH E-TDS STATEMENT, NO D EMAND HAS BEEN RAISED BY THE NSDL, WHICH ENTAILS THAT THE ASSESSEE IS IN POSSESSION OF CORRECT PANS. THE AFORESAID STATEMENTS OF THE ASSESSEE WAS DULY CONSIDERED BY THE LD. CIT(A) AND THEREFORE, O NLY IT WAS HELD THAT IF HAD THERE BEEN A CASE OF INCORRECT PAN, THEN DE MAND SHOULD HAVE BEEN AUTOMATICALLY GENERATED, AND THEREFORE, TH ERE IS NO SHORT DEDUCTION OF TAX. AT THE TIME OF HEARING, THE LD. DR EMPHASIZED ON GR OUND NO.1 OF THE APPELLANT THAT THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE DEMAND RAISED BY THE AO BY INVOKING THE PROVISIONS OF SEC.206AA AS DATE OF PAYMENT TO THE DEDUCTEES IS PRIOR TO THE DATE OF ALLOTMENT OF PAN NOS., HOWEVER, DURING THE COURSE OF HEARING OF APP EAL, THE LD. DR FAILED TO DEMONSTRATE ON WHAT BASIS THE PARTICULAR I SSUE HAS BEEN RAISED AS THE DEPARTMENT NEITHER PRODUCED ANY DOCUMENTS IN SUPPORT OF ITS CONTENTION NOR ABLE TO DEMONSTRATE FROM THE OR DER PASSED BY THE AUTHORITIES BELOW AND/OR MATERIAL AVAILABLE ON RECORD , IN SUPPORT OF THEIR CONTENTION. EVEN OTHERWISE, THE REVENUE DEPARTM ENT FAILED TO SUBSTANTIATE/DEMONSTRATE ANY REASON/MATERIAL IN SUPPORT OF ITS GROUNDS AND AGAINST THE IMPUGNED ORDER, THEREFORE ON THE AFORESAID CONSIDERATION AND OBSERVATIONS, THE ORDER IMPUGNED DOES NOT REQUIRE ANY INTERFERENCE BY THIS COURT, BECAUSE THE SAME DOES NO T SUFFER FROM ITA NO.120(ASR)/2017 (A.Y.2011-12) ITO VS. THE DEPUTY REGISTRAR (FINANCE) RAJOURI 7 ANY PERVERSITY, ILLEGALITY AND/OR IMPROPRIETY, HENCE THE APPEAL OF THE REVENUE DEPARTMENT IS ALSO LIABLE TO BE DISMISSED ON ME RITS AS WELL, THEREFORE NO USE TO GO INTO MAINTAINABILITY OF THE A PPEAL IN VIEW OF THE CIRCULAR OF THE CBDT AS REFERRED ABOVE . 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE DEPA RTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.1 1.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 16.11.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE DEPUTY REGISTRAR (FINANCE) (PERSON RESPONSIBL E) BABA GHULAM SHAH BADSHAH UNIVERSITY, RAJOURI (2) THE INCOME TAX OFFICER TDS, AAYAKAR BHAWAN R AIL HEAD COMPLEX, JAMMU (3) THE CIT(A), J&K, JAMMU (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER