M/s Haryana Police Housing Corporation Limited, Panchkula V. ITO (TDS), Panchkula

ITA 1258/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68432 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 30-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS. 1257 TO 1260/CHD/2012 ASSESSMENT YEAR : 2008-09 M/S HARYANA POLICE HOUSING VS THE ITO (TDS), CORPORATION LIMITED, PANCHKULA PANCHKULA PAN NO. AAACH4303A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUNIL KUMAR RESPONDENT BY : SHRI J.S. NAGAR DATE OF HEARING : 19.8.2013 DATE OF PRONOUNCEMENT : 23.8.3013 ORDER PER T.R. SOOD, AM THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY THE LD. CIT(A), PANCHKULA DATED 24. 9.2012. 2. IN ALL THESE APPEALS, COMMON GROUNDS HAVE BEEN RAISED. IN ITA NO. 1257/CHD/2012, THE FOLLOWING GROUNDS HAVE BEEN RAISED. 1. THAT THE ORDER OF LD. CIT(A) PANCHKULA IS DEFECT IVE BOTH IN LAW AND FACTS OF THE CASE. 2. THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN UPHOLDING THE ORDER OF LD. ASSESSING OFFICER WHICH HAS HELD 2 APPELLANT TO BE AN ASSESSEE IN DEFAULT FOR LATE DEP OSIT OF TAX DEDUCTED AT SOURCE BY MENTIONING THE CATEGORY O F APPELLANT AS GOVERNMENT DEDUCTOR, WHEREAS THE APPEL LANT IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956. 3. THAT THE LD. CIT(A) HAS NOT BEEN JUSTIFIED IN UPHOLDING THE LEVY OF INTEREST AMOUNTING TO RS. 27, 380/- UNDER THE PROVISIONS OF SECTION 201(1A) AS THERE WA S NO DEFAULT IN DEPOSIT OF TAX DEDUCTED AT SOURCE AND TH E SAME WAS DEPOSITED WITHIN STIPULATED PERIOD AS PROVIDED UNDER RULE 30 OF THE INCOME TAX RULES, 1962. 3. IN ALL OTHER APPEALS, THE AMOUNT OF DEMAND IS DI FFERENT I.E. RS. 31,370/-, RS. 40,760/- AND RS. 36,070/- IN ITA NOS 1258, 1259 & 1260/CHD/2012 RESPECTIVELY. THEREFORE, ALL THESE A PPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C OMMON ORDER. 4. AFTER HEARING BOTH THE PARTIES, WE FIND THAT DUR ING ASSESSMENT PROCEEDINGS THE ASSESSEE FILED E-TDS STATEMENT AND CORRECTION STATEMENT. ON EXAMINATION OF THE SAME, IT WAS NOTIC ED THAT ASSESSEE HAS NOT DEPOSITED THE TAX WITHIN TIME PRESCRIBED. A CCORDINGLY, A SHOW CAUSE NOTICE U/S 201(1A) WAS ISSUED. THE ASSE SSING OFFICER FURTHER OBSERVED THAT DEFAULTS ARE FACTUAL AND BASE D ON ENTRIES RECORDED IN THE STATEMENTS, THEREFORE, HE CALCULATE D THE INTEREST LEVIABLE AND ACCORDINGLY CREATED DEMAND ON ACCOUNT OF INTEREST U/S 201(1A) FOR RS. 27,380/-, RS. 31,370/-, RS. 40,76 0/- AND RS. 36,070/- IN ITA NOS. 1257, 1258, 1259 & 1260/CHD/20 12 RESPECTIVELY. 3 5. ON APPEAL BEFORE CIT(A), IT WAS MAINLY SUBMITTED THAT ASSESSING OFFICER HAS WRONGLY CATEGORISED ASSESSEE INTO AN ORGANIZATION IN THE CATEGORY OF CENTRAL OF STATE GO VERNMENT. IT WAS SUBMITTED THAT ASSESSEE IS A COMPANY INCORPORATED U NDER THE PROVISIONS OF CORPORATE ACT AND, THEREFORE, COULD N OT BE CLASSIFIED IN THE CATEGORY OF CENTRAL OR STATE GOVERNMENT AND, THEREFORE, DEMAND WAS NOT CORRECTLY RAISED. THE LD. CIT(A) AFT ER EXAMINING THE SUBMISSIONS OBSERVED THAT APPELLANT IS IN DEFAU LT REGARDING LATE PAYMENT OF TAX DEDUCTED AT SOURCE AND NOT IN DEPOSI TING THE TAX.. THERE IS NO DEFECT IN FEEDING THE STATUS OF THE APP ELLANT. 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE CIT(A) AND REFERRED TO VARI OUS DOCUMENTS IN THE PAPER BOOK WHICH CLEARLY SHOWS THAT ASSESSEE IS A COMPANY. HE REFERRED TO RULE 30 WHICH PRESCRIBES THE TIME LI MIT FOR DEPOSIT OF TAX. HE CONTENDED THAT THERE ARE TWO CATEGORIES AND AS ONE IS WHERE DEDUCTION HAS BEEN MADE ON BEHALF OF THE GOVERNMENT , THEN TAX IS TO BE DEDUCTED ON THE SAME DAY. IN CASE OF A PERSON O THER THAN THE GOVERNMENT, THE TAX WAS REQUIRED TO BE PAID WITHIN A WEEK FROM THE LAST DATE OF THE MONTH IN WHICH THE DEDUCTION IS MA DE. 7. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDER OF ASSESSING OFFICER. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS , WE FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE . RULE 30 OF 4 INCOME TAX RULES, 1962 AT THE RELEVANT POINT OF TIM E READS AS UNDER:- 30. (1) ALL SUMS DEDUCTED IN ACCORDANCE WITH THE PROVISI ONS OF SECTIONS 192 TO 194, SECTION 194A, SECTION 194B, SE CTION 194BB, SECTION 194C, SECTION 194D, SECTION 194E, SECTION 194EE, SE CTION 194F, SECTION 194G, SECTION 194H, SECTION 194-I, SECTION 194J, SE CTION 194K, SECTION 194LA, SECTION 195, SECTION 196A, SECTION 196B, SEC TION 196C AND SECTION 196D SHALL BE PAID TO THE CREDIT OF THE CEN TRAL GOVERNMENT (A) IN THE CASE OF DEDUCTION BY OR ON BEHALF OF TH E GOVERNMENT, ON THE SAME DAY ; (B) IN THE CASE OF DEDUCTION BY OR ON BEHALF OF PE RSONS OTHER THAN THOSE MENTIONED IN CLAUSE (A), (I) IN RESPECT OF SUMS DEDUCTED IN ACCORDANC E WITH THE PROVISIONS OF SECTION 193, SECTION 194A, SECTION 19 4C, SECTION 194D, SECTION 194E, SECTION 194G, SECTION 194H, SEC TION 194-I, SECTION 194J, SECTION 195, SECTION 196A, SECTION 19 6B, SECTION 196C AND SECTION 196D (1) WHERE THE INCOME BY WAY OF INTEREST ON SECUR ITIES REFERRED TO IN SECTION 193 OR THE INCOME BY WAY OF INTEREST REFERRED TO IN SECTION 194A OR THE SUM REF ERRED TO IN SECTION 194C OR THE INCOME BY WAY OF INSURANCE COMMISSION REFERRED TO IN SECTION 194D OR THE PAYME NT TO NON-RESIDENT SPORTSMEN OR SPORTS ASSOCIATIONS RE FERRED TO IN SECTION 194E OR THE INCOME BY WAY OF COMMISSI ON, REMUNERATION OR PRIZE ON SALE OF LOTTERY TICKETS RE FERRED TO IN SECTION 194G OR THE INCOME BY WAY OF COMMISSI ON OR BROKERAGE REFERRED TO IN SECTION 194H OR THE INC OME BY WAY OF RENT REFERRED TO IN SECTION 194-I OR THE INCOME BY WAY OF FEES FOR PROFESSIONAL OR TECHNICAL SERVIC ES REFERRED TO IN SECTION 194J OR THE INTEREST OR ANY OTHER SUM REFERRED TO IN SECTION 195 OR THE INCOME OF A F OREIGN COMPANY REFERRED TO IN SUB-SECTION (2) OF SECTION 1 96A OR THE INCOME FROM UNITS REFERRED TO IN SECTION 196B O R THE INCOME FROM FOREIGN CURRENCY BONDS OR SHARES OF AN INDIAN COMPANY REFERRED TO IN SECTION 196C OR THE INCOME OF FOREIGN INSTITUTIONAL INVESTORS FROM SECU RITIES REFERRED TO IN SECTION 196D IS CREDITED BY A PERSON TO THE ACCOUNT OF THE PAYEE AS ON THE DATE UP TO WHICH THE ACCOUNTS OF SUCH PERSON ARE MADE, WITHIN TWO MONTHS OF THE EXPIRATION OF THE MONTH IN WHICH THAT DATE FALL S ; (2) IN ANY OTHER CASE, WITHIN ONE WEEK FROM TH E LAST DAY OF THE MONTH IN WHICH THE DEDUCTION IS MAD E ; AND 5 (II) IN RESPECT OF SUMS DEDUCTED IN ACCORD ANCE WITH THE OTHER PROVISIONS WITHIN ONE WEEK FROM THE LAST DA Y OF THE MONTH IN WHICH THE DEDUCTION IS MADE : PROVIDED THAT THE 9. THUS, FROM THE ABOVE IT IS CLEAR THAT ONLY IN A CASE WHERE TAX HAS BEEN DEDUCTED ON BEHALF OF THE GOVT., THE SAME IS REQUIRED TO BE DEPOSITED ON THE SAME DAY. PERHAPS, THIS PROVISION IS THERE BECAUSE IN CASE OF GOVERNMENT DEDUCTION IS DONE BY WAY OF T RANSFER ENTRY THROUGH PAY & ACCOUNTS OFFICE AND THE TRANSFER ENTR Y WOULD AMOUNT TO DEPOSIT OF TAX. HOWEVER, IN THE CASE OF OTHER A SSESSEES TIME LIMIT PRESCRIBED IS SEVEN DAYS FROM THE END OF THE MONTH IN WHICH THE TAX IS DEDUCTED. WE FIND FORCE IN THE SUBMISSI ONS OF LD. COUNSEL FOR THE ASSESSEE THAT THIS TIME LIMIT CANNO T BE APPLIED IN CASE OF A COMPANY. THE ASSESSEE IS DULY INCORPORAT ED UNDER COMPANIES ACT AND THE CERTIFICATE OF INCORPORATION IS PLACED AT PAGE NO.1 OF THE PAPER BOOK. IT IS SETTLED LAW THAT A COMPANY EVEN IF OWNED BY THE GOVT. CANNOT BE CALLED GOVERNMENT ITSE LF, THEREFORE, THIS TIME LIMIT WOULD NOT BE APPLICABLE. IN CASE OF COMPANIES, THE TIME LIMIT IS PRESCRIBED UNDER CLAUSE (2) I.E. WITH A WEEK FROM THE LAST DAY ON WHICH THE DEDUCTION IS MADE. WE HA VE CAREFULLY PERUSED THE DETAIL CALCULATION MADE BY THE ASSESSIN G OFFICER, WHICH HAS BEEN MADE PART OF THE ORDER AND FIND THAT ASSES SEE HAS DEPOSITED TAX WITHIN SEVEN DAYS IN THE NEXT MONTH FROM THE EN D OF THE MONTH IN WHICH TAX HAS BEEN DEDUCTED. THEREFORE, THERE IS NO DELAY IN DEPOSIT OF TDS DEDUCTION BY THE ASSESSEE AN D HENCE NO INTEREST CAN BE IMPOSED. ACCORDINGLY, WE SET ASIDE THE 6 ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICE R TO DELETE THE DEMAND ON ACCOUNT OF INTEREST U/S 201(1A) OF THE AC T. 10. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.08.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 23 RD AUGUST, 2013 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR 7