Mahanadi Coalfields Ltd, Sambalpur V. DCIT, Sambalpur

ITA 136/CTK/2012

• Counselvise Citation: 13622114 RSA 2012
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 12-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2012
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: NIRANJAN KEDIA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 136/CTK/2012 / ASSESSMENT YEAR 2008 - 09 MAHANADI COALFIELDS LTD., JAGRITI VIHAR,BURLA, SAMBALPUR. PAN:AABCM 5188 P - - - VERSUS - DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 2 (1), SAMBALPUR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI NIRANJAN KEDIA, AR / FOR THE RESPONDENT: / S MT. PARAMITA TRIPATHY, DR / DATE OF HEARING: 12.07.2012 / DATE OF PRONOUNCEMENT: 14.08.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THIS APPEAL BY THE ASSESSEE RAISES THE FOLLOWING GROUNDS. 1 . THAT THE ASSESSMENT ORDER U/S.154 PASSED BY THE LEARNED ASSESSING OFFICER AS WELL AS THE APPELLATE ORDER PASSED BY THE LEARNED CIT(APPEALS), CUTTACK IS UNJUSTIFIED, ARBITRARY, EXCESSIVE, AND BAD IN LAW. 2 . THAT THE LEARNED ASSESSING OFFICER AS WELL AS CIT(APPEALS) HAS NOT PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE WITH ALL EVIDENCES. 3 . THAT THE LD. CIT(A) HAS ERRED IN ISSUING DIRECTION TO ASSESSING OFFICER FOR ALLOWING CREDIT OF TDS SUBJECT TO VERIFICATION IN ACCORDANCE WITH THE RISK MANAGEMENT STRATEGY FORMULATED BY THE BOARD FROM TIME TO TIME IN VIEW OF TH E CLEAR PROVISIONS OF ACT THAT CREDIT SHOULD BE ALLOWED ON SUBMISSION OF ORIGINAL TDS CERTIFICATES. HENCE, THE ASSESSEE REMAINS AGGRIEVED DUE TO ALLOWANCE OF SHORT CREDIT OF TDS BY 759.28 LAKHS. 4 . THAT THE LEARNED AUTHORITIES BELOW WOULD HAVE PROVIDED SUFF ICIENT OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE WITH PROPER EVIDENCES. I.T.A.NO. 136/CTK/2012 2 5 . THAT THE AUTHORITIES BELOW WOULD HAVE ALLOWED THE TOTAL TDS CREDIT AS PER ORIGINAL TDS CERTIFICATES SUBMITTED. 6 . THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER THE AFORESA ID GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL . 2. THE BRIEF FACTS AS HAVE BEEN BROUGHT ON RECORD ARE THAT THE ASSESSEE - COMPANY HAD SUBMITTED CERTIFICATES IN ORIGINAL FOR TOTAL TDS AMOUNT OF 8467.70 LAKHS VIDE ITS LETTER DATED 25.5.2009. A COPY OF ACKNOWLEDGEMENT OF SUCH TDS CERTIFICATES WAS FILED DURING THE COURSE OF HEARING. ALSO IT WAS STATED THAT A SUM OF 77,52,91,870.90 IS ALSO APPEARING 26AS (NSDL DATA) AS ON 15.9.2010. A COPY OF FOR M 26AS WAS ALSO FILED DURING THE COURSE OF HEARING. THEY SUBMITTED THAT DURING THE ASSESSMENT YEAR 2008 - 09 THE ASSESSEE WAS NOT UNDER ANY STATUTORY OBLIGATION TO ENSURE THAT TDS SHOULD APPEAR IN NSDL DATA (FORM 26AS) AND ONCE THE ORIGINAL TDS CERTIFICATES ARE SUBMITTED, THE ASSESSEE HAS DISCHARGED ITS OBLIGATION TOWARDS ITS CLAIM OF TDS. RULE 37BA REGARDING CREDIT OF TDS ON THE BASIS OF NSDL STATEMENT READ WITH SECTION 199 HAS BEEN INSERTED W.E.F. 01.4.2009 AND HENCE APPLICABLE FROM ASSESSMENT YEAR 2009 - 10. MOREOVER SECTION 205 OF THE ACT IMPOSES BAR AGAINST DIRECT DEMAND ON ASSESSEE TO PAY TAX HIMSELF TO THE EXTENT TO WHICH TDS HAS BEEN MADE. AS THE ORIGINAL TDS CERTIFICATES HAVE BEEN DEPOSITED WITH THE AO, CREDIT SHOULD HAVE BEEN ALLOWED TO THE ASSESSEE. T HE ASSESSING OFFICER SUO MOTO PASSED ORDER U/S.154 HOLDING THE AMOUNT OF TDS ADVANCE TAX FOR COMPUTING INTEREST UNDER THE PROVISIONS OF SECTION 234B.HE BASED HIS GIVING CREDIT ON THE NSDL DATA WHICH WAS STILL TO BE RECTIFIED INSOFAR AS HE WAS TO HOLD THAT BALANCE TAX WAS PAYABLE FOR CREATING THE DEMAND. THE LEARNED CIT(A) ON PERUSING THE ORDER U/S.154 BY THE ASSESSING OFFICER OF DECLINING THE APPLICABILITY OF RULE 37BA REGARDING CREDIT FOR TAX DEDUCTED AT I.T.A.NO. 136/CTK/2012 3 SOURCES FOR THE PURPOSE OF SECTION 199 IS NOT APPLIC ABLE FOR THE ASSESSMENT YEAR 2008 - 09 WAS CONSIDERED . HE HELD THAT RULE 37BA WAS INSERTED BY THE I.T.(SIXTH) AMENDMENT RULES, 2009 W.E.F. 1.4.2009. IN OTHER WORDS, THE CHARGING OF INTEREST WAS NOT STOPPED BY THE ASSESSING OFFICER U/S.23 4 B INSPITE OF THE C LAIM OF THE ASSESSEE REGARDING THE TDS WHICH DEDUCTORS HAD NOT INFORMED AS PER AS - 26. 3. THE LEARNED COUNSEL FOR THE ASSESSEE INSISTED THAT THE LEARNED CIT(A) HAD ERRED IN HOLDING A VIEW THAT RULE 37BA WAS TO TAKE EFFECT FROM 1.4.2009 INSOFAR AS THE ASSESS ING OFFICER HAD GIVEN CREDIT FOR THE TDS AS PER THE INFORMATION AVAILABLE TO IT IN AS - 26. HE HAD CLEARLY NOTED THAT THE NSDL DATA HAD SHOWN LESS AMOUNT OF TDS THAN WHAT WAS CLAIMED AND AVAILABLE WITH THE ASSESSEE AS PER THE TDS CERTIFICATES. THE LEARNED CO UNSEL HAS ALSO SUBMITTED THAT A RECTIFICATION CARRIED OUT BY THE DEPARTMENT HAS ALSO RESULTED IN FURTHER REDUCTION IN THE DEMAND BY THE ASSESSING OFFICER IN PURSUANCE TO THIS ORDER. 4. THE LEARNED CIT - DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 5 . WE HAVE HEARD THE RIVAL CONTENTIONS AT LENGTH AND PERUSED THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL. WE DO FIND THAT A CLAIM OF REFUND HAS BEEN CONVERTED INTO DEMAND BY THE ASSESSING OFFICER ON THE BASIS OF THE LEARNED ASSESSING OFFICER NOT ALLOWING FU LL CREDIT OF TDS AS PER THE TDS CERTIFICATES CLAIMED WHICH CLAIM WAS ON THE BASIS OF TDS CERTIFICATES IN ORIGINAL FOR A TOTAL TDS AMOUNTING TO 84.68 CRORES. THE DIFFERENCE IN THE TDS CERTIFICATES IN ORIGINAL SUBMITTED AND THE NSDL RECORD RESULTED IN DEMA ND OF TAX AND INTEREST THERE UPON U/S.234B INSOFAR AS THE TDS HAS TO BE CONSIDERED AS ADVANCE TAX FOR REDUCTION IN CHARGING OF INTEREST U/S.234B. THE LEARNED COUNSEL HAS ALSO SUBMITTED THAT FOR THE IMPUGNED ASSESSMENT YEAR RULE I.T.A.NO. 136/CTK/2012 4 37BA REGARDING THE CREDIT OF TAX DEDUCTED AT SOURCE ON THE BASIS OF NSDL ACCOUNT FOR THE PURPOSES OF SECTION 199 HAS BEEN INSERTED W.E.F. 1.4. 200 9 THEREFORE DOES NOT APPLY TO THE ASSESSEES CASE INSOFAR AS THE ASSESSING OFFICER HAS COMPUTED THE TAX ALONG WITH INTEREST U/S. 2 34B ON 31. 10.2010. THE LEARNED CIT(A) RATHER DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE ON THIS FINDING. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE INITIAL CLAIM CANNOT BE DISTURBED ON ACCOUNT OF NSDL DATA NOT AVAILABLE TO THE FULLEST WHICH PART ADJUSTMENT HAS BEEN CARRIED OUT BY THE ASSESSING OFFICER THROUGHOUT COULD NOT HAVE BEGUN BY INVOKING THE PROVISIONS U/S.154 SOU MOTO . MISTAKES APPARENT FROM RECORD HAVE TO BE CONCLUSIVE AND PATENT WHEN THE ASSESSING OFFICER HIMSELF IS NOT ABLE TO DISTINGUISH THE DAT A AVAILABLE TO IT VIS - - VIS WITH THE TDS CERTIFICATES IN ORIGINAL FILED ALONG WITH THE RETURN. THE LEARNED CIT(A) OUGHT TO HAVE CONSIDERED THE ISSUE IN ITS RIGHT PERCEPTIVE ON THE SUBMISSIONS OF THE ASSESSEE APPELLANT BEFORE HIM. THE ASSESSEE WAS NOT ABLE TO ASK THE DEDUCTORS TO RECTIFY THE NSDL DATA CANNOT BE HELD AGAINST THE ASSESSEE FOR REFUSAL TO CREDIT . IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DIRECT THE AO TO ALLOW CREDIT OF TOTAL TDS AS CLAIMED ON THE BASI S OF TDS CERTIFICATES AFTER VERIFYING THE SAME WITH NSDL. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. S D/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. I.T.A.NO. 136/CTK/2012 5 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : MAHANADI COALFIELDS LTD., JAGRITI VIHAR,BURLA, SAMBALPUR 2 / THE RESPONDENT: DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), SAMBALPUR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 10 .8.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFOR E THE DICTATING MEMBER 10. 8 .2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S 14.08.2012 . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.08.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSIST ANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..