The Income Tax Officer, Jammu V. The Executive Engineer PWD, R&B, Jammu

ITA 127/ASR/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0505 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-05-2016
• Assessment Year: 2014-2015
• Appeal Filed On: 25-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH KUMAR
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER SL.NO. ITA NO. ASSESSMENT YEAR 1. 124(ASR)/2016 2011-12 2. 125(ASR)/2016 2012-13 3. 126(ASR)/2016 2013-14 4. 127(ASR)/2016 2014-15 INCOME TAX OFFICER, VS. EXECUTIVE ENGINEER PWD, B & R, TDS CIRCLE, DIVISION NO.1, RAIL HEAD COMPLEX, JAMMU. JAMMU. PAN: AMRPI1004A (APPELLANT) (RESPONDENT) APPELLANT BY: SH. UMESH KUMAR, DR RESPONDENT BY: SH. JOGINDER SINGH, CA DATE OF HEARING: 19/05/2016 DATE OF PRONOUNCEMENT: 20/07/2016 ORDER PER BENCH: THESE FOUR APPEALS FILED BY THE DEPARTMENT ARE DIR ECTED AGAINST THE CONSOLIDATED ORDER DATED 30.11.2015, PASSED BY THE CIT(A), JAMMU, RELATING TO ASSESSMENT YEARS 2011-12 TO 2014-15. AS THE ISSUE INVOLVED IN THESE APPEALS IS COMMON, THEY ARE BEING DISPOSED OF BY THIS COMPOSITE ORDER, FOR THE SAKE OF CONVENIENCE. ITA NOS. 124 TO 127(ASR)/2016 A.YS. 2011-12 TO 2014-15 2 2. THE GROUNDS OF APPEAL TAKEN IN ITA NO. 124(ASR)/ 2016, WHICH ARE SIMILAR IN OTHER APPEALS ARE, AS FOLLOWS: 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) JAMMU IS RIGHT IN CONFIRMING THE DEMAND OF RS.13,64,886/- ONLY AS ADMITTED BY ASSESSEE OUT OF THE TOTAL DEMAND OF RS.5,16,97,113/- CREATED BY THE AO U/S 201(1)/201(1A) FOR NON-AVAILABILITY OF PANS OF THE DEDUCTEES WITHOUT INCORPORATING ANY FINDING IN THE APPELLATE ORDER REGARDING THE RELIEF ALLOWED OF THE BALANCE DEMAND WITHOUT ANY ENQUIRIES HAVING BEEN MADE BY THE LD. CIT(A) IT SELF OR BY THE AO UNDER HIS DIRECTION AS REQUIRED U/S 250(4) O F THE I.T. ACT TO VERIFY THE FACT THAT THE PANS WERE DULY ALLO TTED TO THESE DEDUCTEES BEFORE MAKING PAYMENTS U/S 194C. 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) JAMMU IS RIGHT IN DIRECTING THE AO TO ADJUST THE DEMAND OF RS.13,64,886/- UPHELD BY HIM AS PER PARA (1) AGAINST EXCESS AMOUNT OF TAX DEDUCTED IN F.T. 2010- 11 IGNORING THE FACT THAT THE TDS DEDUCTED AND THE CRE DIT OF SUCH TAX DEDUCTED CAN ONLY BE GIVEN TO THE RESPECTI VE DEDUCTEES. 3. THE FACTS OF THE CASE ARE THAT DURING THE INSPE CTION IN THE CASE OF THE ASSESSEE, IT WAS NOTICED BY THE ITO (TDS) THAT THE PERSON RESPONSIBLE (HEREINAFTER, CALLED AS THE PR) HAD MADE PAYMENTS TO THE CONTRACTORS FOR EXECUTION OF VARIOUS CIVIL WORKS, ON WHICH, HE WAS LIABLE TO DEDUCT TAX AT SOURCE U/S 194C AT THE PRESCRIBED RATE, WHICH HE HA D FAILED TO DO. ACCORDINGLY, A CONSOLIDATED SHOW CAUSE NOTICE FOR T HE FINANCIAL YEARS 2009-10 TO 2013- 14 WAS ISSUED TO THE PR ON 13.6.20 14, GIVING DETAILS OF PARTY-WISE PAYMENTS MADE, AMOUNT OF TAX DEDUCTABLE ON SUCH PAYMENTS, TDS ACTUALLY DEDUCTED AND SHORT DEDUCTION THEREON. THE PR WAS REQUIRED TO SHOW CAUSE AS TO WHY SHORT/NON DEDUCTIO N ON THESE PAYMENTS MAY NOT BE RECOVERED FROM HIM U/S 201(1) A LONG WITH INTEREST ITA NOS. 124 TO 127(ASR)/2016 A.YS. 2011-12 TO 2014-15 3 U/S 201(1A) OF THE INCOME. IN RESPONSE TO THE ABOVE SHOW CAUSE, THE PR FILED A WRITTEN REPLY DATED 27.6.2014 STATING AS UN DER: IN THIS CONNECTION, IT IS SUBMITTED THAT AS PER TH E RECORD OF THIS DIVISION THE TDS AT DUE RATES HAS BEEN DEDUCTED AND DEPOSITED INTO THE CENTRAL GOVERNMENT ACCOUNT TIMELY DURING THE FI NANCIAL YEAR 2009-10 TO 2013-14 AND THE SHORT DEDUCTIONS ARE DUE TO NON FURNISHING OF PAN BY SOME CONTRACTORS/EMPLOYEES. THE CONCERN CONTRACTORS/EMPLOYEES ARE COMING TO THI S OFFICE WITH PAN FROM TIME TO TIME FOR FILLING CORRECTIONS. THE COPIES OF CORRECTIONS FILED FOR THE FINANCIAL YEAR 2009-10 TO 2013-14 ARE ENCLOSED FOR YOUR KIND PERUSAL AND THE REMAINING CORRECTIONS SHALL BE FILED AS SOON AS THE CONCERNED CONTRACTORS / EMPLOYEES TURN UP WITH PAN. IN VIEW OF THE ABOVE, THE SHOW BECAUSE NOTICE MAY K INDLY BE WITHDRAWN IN THE INTEREST OF GOVERNMENT WORK, AND I T IS ENSURED THAT THIS OFFICE WILL WORK HAD IN FULFILLING THE RE QUISITE DETAIL IN FUTURE RETURNS.' THE PR ALSO SOUGHT TIME TO RECONCILE THE CORRECTNES S OF THE FIGURES SHOWN IN THE ANNEXURE TO THE SHOW CAUSE NOTICE AND, FINAL LY, SUBMITTED A WRITTEN REPLY ON 23.7.2014, WHEREIN HE POINTED OUT THAT THERE WERE CERTAIN RECONCILIATIONS/VARIATIONS, WHICH MAY BE CO RRECTED. THE AO, AFTER CONSIDERING THE REPLY FILED BY THE PR , TREATED IT AS AN ASSESSEE IN DEFAULT AS PER THE PROVISIONS OF SECTIO N 194C OF THE INCOME TAX ACT READ WITH SECTIONS 201(1) AND 201(1A) OF TH E IT ACT, FOR THE FINANCIAL YEARS 2009-10, 2010-11, 2011-12, 2012-13 AND 2013-14, RELEVANT TO THE ASSESSMENT YEARS 2010-11 TO 2014-15 , ON THE GROUND THAT THE PR HAD FAILED TO DEDUCT TAX U/S 194C @ 20% IN CASES WHERE PANS WERE NOT OBTAINED. THE CLAIM OF THE ASSESSEE WAS AC CEPTED BY THE LD. CIT(A), SUBJECT TO RECONCILIATION BY THE ITO (TDS), JAMMU. ITA NOS. 124 TO 127(ASR)/2016 A.YS. 2011-12 TO 2014-15 4 4. NOW, AGGRIEVED BY THE ORDER OF THE LD. CIT(A), T HE REVENUE IS APPEAL BEFORE THIS BENCH. 5. THE LD. DR HAS CONTENDED THAT THE LD. CIT(A) I S WRONG IN CONFIRMING THE DEMAND OF RS.13,64,886/- ONLY AS ADM ITTED BY ASSESSEE OUT OF THE TOTAL DEMAND OF RS.5,16,97,113/- CREATED BY THE AO U/S 201(1)/201(1A) FOR NON-AVAILABILITY OF PANS OF THE DEDUCTEES, WITHOUT INCORPORATING ANY FINDING IN THE APPELLATE ORDER RE GARDING THE RELIEF ALLOWED OF THE BALANCE DEMAND WITHOUT ANY ENQUIRIE S HAVING BEEN MADE BY THE LD. CIT(A) HIMSELF, OR BY THE AO, UNDER HIS DIRECTION, AS REQUIRED U/S 250(4) OF THE I.T.ACT, TO VERIFY THE FACT THAT THE PANS WERE DULY ALLOTTED TO THESE DEDUCTEES BEFORE MAKING PAYMENTS U/S 194C. HE FURTHER SUBMITTED THAT THE LD. CIT(A) WAS WRONG IN DIRECTING THE AO TO ADJUST THE DEMAND OF RS.13,64,886/- UPHELD BY HIM, IGNORING THE FACT THAT THE TDS DEDUCTED AND THE CREDIT OF SUCH TAX DE DUCTED CAN ONLY BE GIVEN TO THE RESPECTIVE DEDUCTEES. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, STRONGLY RELIED ON THE IMPUGNED ORDER. 6. HERE, IT IS SEEN THAT AS CONTENDED BY THE ASSESS EE BEFORE THE LD. CIT(A), WHICH CONTENTION HAS BEEN DULY CONSIDERED B Y THE LD. CIT(A), ITA NOS. 124 TO 127(ASR)/2016 A.YS. 2011-12 TO 2014-15 5 THOUGH ADMITTEDLY THERE WERE DISCREPANCIES IN THE T DS @ 20%, TO THE TUNE OF RS.26,99,222.60, THERE WERE EXCESS PAYMENTS , OF RS.24,41,017.86 IN THE YEAR 2010-11, WHICH AMOUNT W AS STATED TO BE ADJUSTED AGAINST THE DEMAND, AS FOLLOWS: S.NO. YEAR GROSS AMT. TAX DEPOSITED TAX @ 20% DIFFERENCE 1 11 1 . 2009-10 0 0 0 2. 2010-11 1119680 179050 1543936 1364886 3. 2011-12 4166420 62618 953284 890666 4. 2012-13 1170935 17587 234181 216600 5. 2013-14 1218283 16586 243656 227071 TOTAL 14875318 TAX @ 20% 2699222.6 EXCESS TAX DEPOSITED IN 2441017.86 BALANCE 258204.74 THERE IS NO DISPUTE TO THE ABOVE POSITION. 7. THE LD. CIT(A) TOOK INTO CONSIDERATION THE FACT THAT THE ASSESSEE HAD HIMSELF ADMITTED SHORT DEDUCTION OF TAX IN TH E CASE OF NO PAN, OR INVALID, OR INCORRECT PAN AND IT OFFERED TO TAX @ 2 0%, AS PER THE PROVISIONS OF SECTION 201(1) OF THE INCOME TAX ACT, 1961. THE TOTAL DIFFERENCE OF RS.2,58,204.74 WAS ACCEPTED, SUBJECT TO RECONCILIATION BY THE ITO (TDS). THEREFORE, THE GRIEVANCE OF THE REVE NUE IS MISCONCEIVED. ACCORDINGLY, IT IS REJECTED. ITA NOS. 124 TO 127(ASR)/2016 A.YS. 2011-12 TO 2014-15 6 8. THE CONSOLIDATED ORDER OF THE LD. CIT(A) IS WELL VERSED AND DOES NOT REQUIRE ANY INTERFERENCE AT OUR HANDS. THEREFORE, THE AFORESAID ORDER OF THE LD. CIT(A) IS CONFIRMED AND ALL THE APPEALS AR E DISMISSED. 9. IN THE RESULT, ALL THE FOUR APPEALS ARE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/07/ 2 016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 20/07/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:THE EXECUTIVE ENGINEER PWD, R& B DIVI SION NO.1 JAMMU 2. THE ITO (TDS), CIRCLE, JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.