Income Tax Officer-(TDS), Bareilly V. The District Health Society, Bareilly

ITA 137/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4869 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 09-12-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: YOGESH AGRAWAL
• Keywords: Additional evidence
• Section: 201(1); 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.137/LKW/2015 ASSESSMENT YEAR:2011-12 INCOME TAX OFFICER(TDS), BAREILLY. VS. THE DISTRICT HEALTH SOCIETY, THROUGH CHIEF MEDICAL OFFICER, BAREILLY. TAN:LKNDO6406B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY SHRI YOGESH AGRAWAL, ADVOCATE DATE OF HEARING 09/12/2015 DATE OF PRONOUNCEMENT 12/01/2016 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORD ER OF LEARNED CIT(A), BAREILLY DATED 05/06/2014 FOR THE ASSESSMEN T YEAR 2011-2012. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS: 1. THE LD. CIT(A), BAREILLY HAS ERRED IN FACTS AN D LAW BY DIRECTING TO VERIFY THE CLAIM OF THE APPELLANT IN V IEW OF THE PROVISO TO SECTION 201(1) OF THE INCOME TAX ACT , 1961 AS THE PROVISO TO SECTION 201(1) OF THE INCOME TAX ACT, 1961 HAS BEEN INSERTED BY THE FINANCE ACT, 201 2, W.E.F. 01.07.2012 AND THE SAID PROVISO IS NOT APPLI CABLE TO THE CASE OF THE ASSESSEE AS THE CASE OF THE ASSE SSEE RELATES TO F.Y. 2010-11. HENCE, THE ORDER OF THE CI T(A) DIRECTING TO VERIFY THE CLAIM OF THE ASSESSEE IN VI EW OF PROVISO TO SECTION 201(1) OF THE INCOME TAX ACT, 19 61 BEING ERRONEOUS MAY BE CANCELLED. 2. LD. CIT(A) IN ITS ORDER HAS DIRECTED THE ASSESSI NG OFFICER TO VERIFY THE CLAIM OF THE APPELLANT IN RESPECT OF ASSESSMENT OF PERSONS WITH THE COPIES OF ITR'S AND HAS HELD THAT IF THE CONDITIONS CONTAINED IN THE PROVIS O TO 2 SECTION 201(1) REFERRED TO ABOVE ARE FULFILLED, THE APPELLANT CANNOT BE TREATED AS ASSESSEE IN DEFAULT. ON THIS POINT, THE LD. CIT(A) BAREILLY HAS FURTHER ERR ED BY NOT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER UND ER RULE 46A(3) TO EXAMINE THE ADDITIONAL EVIDENCE OR DOCUME NTS SUBMITTED BY THE ASSESSEE BEFORE THE CIT(A) DURING THE APPEAL PROCEEDING. 3. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER OF ASSESSING OFFICER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPO RTED THE ORDER OF LEARNED CIT(A). AT THIS JUNCTURE, IT WAS POINTED O UT BY THE BENCH THAT THE DIRECTIONS GIVEN BY CIT (A) DO NOT CONTAIN ANY DIR ECTION REGARDING CHARGING OR NOT CHARGING OF INTEREST U/S 201(1A) ALTHOUGH SU CH INTEREST WAS CHARGED BY THE ASSESSING OFFICER. IN REPLY, IT WAS SUBMITT ED BY LEARNED A. R. OF THE ASSESSEE THAT IF CONSIDERED NECESSARY, THE DIRECTIO N OF CIT(A) MAY BE MODIFIED BUT BEFORE THAT, THE JUDGMENT OF HON'BLE G UJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. DCM LTD. AS REPORTE D IN [2013] 359 ITR 101 (DEL) SHOULD BE CONSIDERED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE DECISION OF CIT (A) IS ON THE BASIS THAT THE ASSESSING OFFICER HAS RIGHTLY INVOKED THE PROVISIONS OF SECTION 194J INSTEAD OF SECTION 192 O F THE ACT AS HAS BEEN PLEADED BY THE ASSESSEE AND AGAINST THIS DECISION OF CIT (A ), THERE IS NO APPEAL BY THE ASSESSEE BEFORE US. AFTER HOLDING SO, THE CIT(A) H AS CONSIDERED THE PROVISO TO SECTION 201(1A) AND IN THE LIGHT OF THE PROVISIONS OF THIS PROVISO, HE HAS DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE AS SESSEE IN RESPECT OF ASSESSMENT OF THE PERSONS WITH THE COPIES OF THEIR INCOME TAX RETURN AND IF THE CONDITIONS CONTAINED IN THE PROVISO TO SECTION 201(1) ARE FULF ILLED, THE ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT. THEREFORE, WE FIND THAT THE DIRECTIONS OF CIT(A) SHOULD BE MODIFIED TO THE EXTENT THAT THE ASSESSING OFFICER SHOULD EXAMINE THE CHARGEABILITY OF INTEREST U/S 201(1A) EVEN IF IT IS FOUND THAT THE ASSESSEE IS NOT TO BE CONSIDERED AS ASSESSEE IN DEFAULT BECAUSE OF THE PROVISIONS OF THE PROVISO TO SECTION 201(1) OF THE ACT. WE DIRECT THE ASSESSING OFFICER ACCORDINGLY. 3 5. REGARDING THE JUDGMENT OF HON'BLE GUJARAT HIGH C OURT CITED BY LEARNED A. R. OF THE ASSESSEE HAVING BEEN RENDERED IN THE CASE OF CIT VS. DCM LTD. (SUPRA), WE FIND THAT THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE IN THAT CASE, THE TAX WAS BEING DEDUCTED BY THE ASSESSEE U/ S 194J AND THIS WAS THE FINDING OF THE TRIBUNAL THAT THE TAX IS RIGHTLY BEI NG DEDUCTED U/S 194J OF THE ACT INSTEAD OF SECTION 192 AS HAS BEEN PROPOSED BY THE ASSESSING OFFICER IN THAT CASE. BUT IN THE PRESENT CASE, THIS IS NOT THE CAS E OF THE REVENUE THAT THE TAX IS DEDUCTIBLE U/S 192 OF THE ACT. IN THE PRESENT CASE , THE CASE OF THE REVENUE IS THAT THE TAX IS DEDUCTIBLE U/S 194J AND THE ASSESSE E HAS NOT DEDUCTED TAX U/S 194J AND THIS FINDING OF THE ASSESSING OFFICER HAS BEEN UPHELD BY CIT(A) AND THERE IS NO APPEAL BY THE ASSESSEE BEFORE US AND TH EREFORE, THIS ASPECT OF THE MATTER HAS ATTAINED FINALITY. THE DECISION OF THE CIT(A) IS ON THE BASIS OF PROVISO TO SECTION 201(1) AND AS PER THE SAME, IF THE CONDI TIONS OF THE SAID PROVISO IS COMPLIED WITH, THEN THE ASSESSEE IS NOT TO BE CONSI DERED AS ASSESSEE IN DEFAULT BUT CHARGEABILITY OF INTEREST U/S 201(1A) IS THERE EVEN IN THAT CASE AND BECAUSE OF THIS REASON, WE HAVE MODIFIED THE DIRECTIONS TO TH E ASSESSING OFFICER AND THE ASSESSING OFFICER IS NOW DIRECTED TO EXAMINE THE CH ARGEABILITY OF INTEREST U/S 201(1A) EVEN IN THOSE CASES WHERE IT IS FOUND THAT AS PER THE PROVISO TO SECTION 201(1), THE ASSESSEE IS NOT TO BE CONSIDERED AS AN ASSESSEE IN DEFAULT. 6. IN THE RESULT, THE APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED:12/01/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT . REGISTRAR