Sri Mohan Kumar Seksaria, Jharsuguda V. ITO(TDS), Sambalpur

ITA 121/CTK/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1295 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 13-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S OBESH MOHANTY
• Assessee Lawyers: BINOD AGARWALLA
• Keywords: TDS
• Section: 201(1); 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM (THROUGH : VIDEO CONFERENCING) . / ITA NO. 121 - 123 /CTK/20 20 ( / A SSESSMENT Y EAR S : 2014 - 2015, 20 1 5 - 201 6 & 2016 - 2017 ) SRI MOHAN KUMAR SEKSARIA, PROPRIETOR OF M/S M.K.TRADERS NEAR POLICE STATION, BELPAHAR, BELPAHAR R.S. JHARSUGUDA - 768217 VS. ITO (TDS), SAMBALPUR PAN NO. : A LFPS 4699 M TAN NO. : BBNM 00950 F ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI BINOD AGARWALLA , AR /REVENUE BY : SHRI SOBESH MOHANTY, DR / DATE OF HEARING : 23 / 1 1 /20 20 / DATE OF PRONOUNCEMENT : 26 / 1 1 /20 20 / O R D E R PER BENCH : TH ESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT(A), SAMBALPUR, ALL DATED 21.11.2019 FOR THE ASSESSMENT YEARS 2014 - 2015, 2015 - 2016 & 2016 - 2017 . 2. AS PER THE OFFICE NOTE, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE BARRED BY 39 DAYS EACH . WITH REGARD TO CONDONATION OF DELAY, THE L D. AR OF THE ASSESSEE BEFORE US SUBMITTED THAT HE WAS BUSY IN ATTENDING HIS WIFE S TREATMENT DURING THE MONTH OF JANUARY AND FEBRUARY, HENCE, COULD NOT COMMUNICATE WITH HIS COUNSEL TO FILE APPEAL WITHIN THE PRESCRIBED TIME LIM IT AND HE ALSO UNDERT OOK THAT THERE IS NO ITA NO S . 121 - 123 /CTK/20 20 2 MALAFIDE INTENTION OF THE ASSESSEE IN FILING THE APPEALS BELATEDLY. THEREFORE, LD. AR RE QUESTED THAT THE DELAY OF 39 DAYS MAY KINDLY BE CONDONED. LD. DR ALSO DID NOT OBJECT TO THE CONTENTION OF LD. AR OF THE ASSESSEE. CONSIDERING THE ABOVE CONTENTIONS OF THE ASSESSEE, WE CONDONE THE DELAY OF 39 DAYS IN FILING ALL THE THREE APPEALS BY THE ASSE SSEE AND ALL THE APPEALS ARE HEARD FINALLY. 3. THE SOLE ISSUE INVOLVED IN ALL THE THREE APPEALS IS WITH REGARD TO CHARGING OF INTEREST U/S.201(1)/201(1A) OF THE INCOME TAX ACT, 1961 . 4. BRIEF FACTS OF THE CASE ARE THAT A TDS/TCS SURVEY U/S.133A OF THE ACT WAS CONDUCTED IN T HE OFFICE OF M/S M.K. TRADERS, PROPRIETORSHIP OF SRI MOHAN KUMAR SEKSARIA ON 26.10.2016. DURING THE COURSE OF SURVEY , BOOKS OF ACCOUNTS/DOCUMENTS SUCH AS AUDITED BALANCE SHEET, PROFIT & LOSS ACCOUNT, PURCHASE & SALES LEDGER, TDS/TCS LEDGER, TDS/TCS CHALLAN AND RECEIPTS OF FILING OF 24Q/26Q/27EQ RETURNS FOR THE FINANCIAL YEARS UNDER CONSIDERATION WERE CALLED FOR. FROM THE FINANCIAL STATEMENTS, IT WAS NOTICED THAT THE ASSESSEE HAS MADE PAYMENT TOWARDS RENT OF RS.2,28,000/ - TO SHRI KISHAN SEKSARIA, FATHER OF SRI MOHAN KUMAR SEKSARIA FOR THE FOLLOWING FINANCIAL YEAR S UNDER CONSIDERATION : - F.Y. PAYMENT TO PURPOSE OF PAYMENT AMOUNT (IN RS) 2013 - 14 KISAN KUMAR SEKSARIA GO DOWN RENT 1,20,000/ - 2013 - 14 KISAN KUMAR SEKSARIA RENT FOR MACHINERY 1,08,000/ - 2014 - 15 KISAN KUMAR SEKSARIA GODOWN RENT 1,20,000/ - 2014 - 15 KISAN KUMAR SEKSARIA RENT FOR MACHINERY 1,08,000/ - ITA NO S . 121 - 123 /CTK/20 20 3 2015 - 16 KISAN KUMAR SEKSARIA GODOWN RENT 1,56,000/ - 2015 - 16 KISAN KUMAR SEKSARIA RENT FOR MACHINERY 72,000/ - IT WAS ALSO NOTICED THAT THE ASSESSEE H AS NOT MADE ANY TDS ON THE PAYMENTS MADE TOWARDS RENT AS STATED ABOVE, THEREFORE, THE ASSESSEE IS DEFAULT IN RESPECT OF SECTION 201(1) OF THE ACT FOR NON - DEDUCTION OF TDS FROM RENT AND SECTION 201(1A) OF THE ACT IN RESPECT OF INTEREST THEREON. ACCORDINGLY, THE ITO TDS CALCULATED SHORT DEDUCTION AS PER SECTION 201(1) AND INTEREST THEREON AS PER SECTION 201(1A) OF THE ACT FOR THE RESPECTIVE FINANCIAL YEARS RELEVANT TO THE ASSESSMENT YEARS UNDER CONSIDERATION AS UNDER : - F .Y. A.Y. SHORT DEDUCTION U/S. 201(1) O F THE ACT INTEREST CHARGED U/S.201(1A) OF THE ACT TOTAL DEMAND RAISED 2013 - 14 2014 - 2015 14,160/ - 4,673/ - 18,833/ - 201 4 - 1 5 201 5 - 201 6 14,160/ - 2,974/ - 17,134/ - 2015 - 16 2016 - 2017 17,040/ - 1,534/ - 18,574/ - 5 . FEELING AGGRIEVED FROM THE ITO(TDS) , THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A) AND THE CIT(A) CONFIRMED THE ACTION OF THE ITO(TDS) AND DISMISSED ALL THE THREE APPEALS OF THE ASSESSEE. 6 . FURTHER AGGRIEVED FROM THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEALS BEFORE THE INCOME TAX APPELLATE TRIBUNAL . 7 . LD. AR BEFORE US SUBMITTED THAT THE RECIPIENT WHILE CALCULATING HIS TAXABLE INCOME, HAS RECEIVED THE RENT FROM THE ASSESSEE AND HAS INCLUDED IN COMPUTING THE TOTAL TAXABLE INCOME AND HAS PAID DUE TAXES THEREON BUT THIS FACT COULD NOT BE POINTED OUT BE FORE THE CIT(A) & ITO ITA NO S . 121 - 123 /CTK/20 20 4 (TDS) , THEREFORE, HE HUMBLY REQUESTED THAT THE MATTER MAY KINDLY BE RESTORED TO THE ITO(TDS) FOR VERIFICATION AS PER THE AMENDED PROVISIONS OF SECTION 201(1)/201(1A) OF THE ACT, IF THE RECIPIENT HAS PAID THE TAX ON THE RENT RECEIVED. THUS, THE ASSESSEE IS NOT TO BE TREATED AS ASSESSEE - IN - DEFAULT. 8 . ON THE OTHER HAND, LD. DR REQUESTED FOR SENDING BACK THE MATTER TO THE CIT(A) FOR VERIFICATION. 9 . AFTER HEARING BOTH THE SIDES AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ITO(TDS) HAS RAISED DEMAND ON ACCOUNT OF SHORT DEDUCTION U/S.201(1) AND INTEREST CHARGED U/S.201(1A) OF THE ACT HOLDING THE ASSESSEE AS ASSESSEE - IN - DEFAULT. BEFORE US, LD. AR OF THE ASSESSEE SUBMITTED THAT THE RECIPIENT HAS INCLUDED THE RENT RECEIVED FROM THE ASSESSEE IN WHICH DUE TAXES HAVE BEEN PAID THEREON BY THE ASSESSEE. NO DOUBT, THE PAYMENTS MADE BY THE ASSESSEE IS TO BE COVERED U/S.194 - I OF THE ACT WHICH ARE MORE THAN THE PRESCRIBED LIMITS AS PER THE PROVISIONS OF SECTION 194 - I OF THE ACT. THEREFORE , THE ASSESSEE WAS LIABLE TO MAKE TDS BUT IN THE PRESENT CASES, THE ASSESSEE HAS NOT DEDUCTED TDS. HOWEVER, A S THE LD. AR OF THE ASSESSEE BEFORE US SUBMITTED THAT THE RECIPIENT HAS ALREADY PAID DUE TAXES THEREON, THEREFORE, WE THINK IT PROPER TO SEND BACK THE MATTER TO THE FILE OF AO FOR VERIFICATION AS TO WHETHER THE RECIPIENT HAS PAID DUE TAXES ON THE RENT RECEIVED FROM THE ASSESSEE. IF THE AO FINDS THAT THE ITA NO S . 121 - 123 /CTK/20 20 5 RECIPIENT HAS ALREADY PAID DUE TAXES WITHIN THE TIME ALLOWED AND HAS FILED RETURN OF INCOME U/S.139 OF THE ACT AS PER THE PROVISIONS OF INCO ME TAX ACT, 1961 ON THE R ENT RECEIVED FROM THE ASSESSEE AND IF THE ASSESSEE FILES PRESCRIBED FORM NO.27BA AS PER THE RULES PRESCRIBED AND MADE FOR NECESSARY COMPLIANCE IN THIS REGARD, THEN DEMAND RAISED U /S.201(1)/201(1A) OF THE ACT IN ALL THE THREE APPEALS UNDER CONSIDERATION DESERVES TO BE DELETED. THE ASSESSEE IS DIRECTED TO SUBSTANTIATE HIS CLAIM BEFORE THE AO WITH PROPER EVIDENCE /DOCUMENTS AND AVOID TO TAKE UNNECESSARY ADJOURNMENTS . NEEDLESS TO SAY, THE ASSESSEE SHALL BE GIVEN REASONABLE OPPOR TUNITY OF HEARING. THUS, THE SOLE ISSUE RAISED BY THE ASSESSEE IN ALL THE ASSESSMENT YEARS UNDER CONSIDERATION IS ALLOWED FOR STATISTICAL PURPOSES. 10 . IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOU NCED IN THE OPEN COURT ON 26 / 1 1 / 20 20 . S D/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 26 / 1 1 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - SRI MOHAN KUMAR SEKSARIA, PROPRIETOR OF M/S M.K.TRADERS NEAR POLICE STATION, BELPAHAR, BELPAHAR R.S. JHARSUGUDA - 768217 2. / THE RESPONDENT - ITO (TDS), SAMBALPUR 3. ( ) / THE CIT(A), 4. / CIT ITA NO S . 121 - 123 /CTK/20 20 6 / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , /ITAT, CUTTACK 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//