District Magistrate, Jhansi V. I.T.O. (TDS) - Range-6, Jhansi

ITA 139/AGR/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0367 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-02-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 11-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: R K AGARWAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 137, 138, 139 & 140/AGRA/2011 ASSTT. YEAR : 2005-06, 2006-07, 2007-08 & 2008-09 DISTRICT MAGISTRATE, VS. INCOME-TAX OFFICER (TD S), MINING OFFICE, RANGE-6, JHANSI. COLLECTORATE COURT COMPLEX, JHANSI(TAN:AGRD11071E) (APPELLANT) (RESPONDENT) APPELLANT BY : S/SRI R.K. AGARWAL & RAHUL AGARWAL, ADV. RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 21.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 28.02.2013 ORDER PER BHAVNESH SAINI, J.M.: ALL THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-II, AGRA DATED 30.03.2011 FOR THE ASSESSMENT YEARS 2005-06 TO 2008-09. 2. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS G ROUND NO. 1 IN ALL THE APPEALS OF THE ASSESSEE. THE SAME IS, THEREFORE, DISMISSED AS NOT PRESSED IN ALL THE APPEALS. 3. THE EFFECTIVE GROUNDS OF APPEALS RAISED IN ALL T HE APPEALS ARE COMMON ON GROUND NO. 2 TO 5 AND THE SAME ARE TAKEN FROM ONE O F THE APPEALS AND ARE REPRODUCED AS UNDER : ITA NO. 137 TO 140/AGRA/2011 2 2. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, AGRA, GROS SLY ERRED IN HOLDING THE APPELLANT AS RESPONSIBLE FOR COLLECTION OF TAX FROM THE DEAD RENT/ROYALTY WITHIN THE MEANING OF SEC. 206C . 3. BECAUSE ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, AGRA, ERRE D BOTH IN LAW AND FACTS WHILE HOLDING THE APPELLANT STATUTORILY R EQUIRED TO COLLECT TAX AT SOURCE FROM THE AMOUNT RECEIVED FROM PRIVATE LESSEE/LICENSEE APPRECIATING THE FACTS, CIRCUMSTANCES AND THE PROVI SIONS OF STATUTE IN THIS REGARD. 4. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPE ALS)-II, AGRA, GROSSLY ERRED BOTH IN LAW AND FACTS IN ERRONE OUSLY ADJUDICATING GROUND NO. 3 OF THE APPEAL. LD. CIT(A) FAILED TO AP PRECIATE THAT SECTION 206C(6A) WAS BROUGHT ON THE STATUTE W.E.F. 01.04.2007, AND THAT THERE WERE NO CIRCUMSTANCES OR FACTS AVAILABLE ON RECORD FOR HOLDING THE APPELLANT AS ASSESSEE IN DEFAULT. THE LD. COMMISSIONER OF THE INCOME TAX (APPEALS)-II, AGRA FURTHER ERRED IN APPLYING THE PROVISIONS OF SECTION 206C(1) WHICH RELATES TO THE SELLER AND NOT TO THE APPELLANT. 5. BECAUSE THE LD. COMMISSIONER OF INCOME TAX (APPE ALS)-II, AGRA, GROSSLY ERRED BOTH IN LAW AND FACTS IN ERRONE OUSLY ADJUDICATING GROUND NO. 4 OF THE APPEAL. LD. CIT(A) FAILED TO AP PRECIATE THAT THE PROVISIONS OF SECTION 206C(7) OR 201(1A) ARE NOT AT ALL APPLICABLE IN THE CASE OF THE APPELLANT. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE DIST RICT MAGISTRATE, JHANSI ON BEHALF OF THE STATE GOVERNMENT HAS GRANTED LICENSE AND LEA SE FOR MINES AND QUARRIES IN HIS TERRITORIAL JURISDICTION AND COLLECTED THE AMOUNT A S ROYALTY ETC. FROM THE LICENSEES AND LESSEES AGAINST USE OF SUCH MINES AND QUARRIES FOR THE PURPOSE OF BUSINESS LIKE EXTRACTING GITTI, BALLAST / KHANDA, BOULDERS ETC. T HE AO WAS OF THE VIEW THAT AS PER SECTION 206C(1C) OF THE IT ACT, EVERY PERSON, WHO G RANTS A LEASE OR A LICENSE OR ITA NO. 137 TO 140/AGRA/2011 3 ENTERS INTO A CONTRACT OR OTHERWISE TRANSFERS ANY R IGHT OR INTEREST EITHER IN WHOLE OR IN PART IN ANY MINE OR QUARRY, TO ANOTHER PERSON, O THER THAN A PUBLIC SECTOR COMPANY (LICENSEE OR LESSEE) FOR THE USE OF SUCH MI NE OR QUARRY FOR THE PURPOSE OF BUSINESS SHALL, AT THE TIME OF DEBITING OF THE AMOU NT PAYABLE BY THE LICENSEE OR LESSEE TO THE ACCOUNT OF THE LICENSEE OR LESSEE OR AT THE TIME OF RECEIPT OF SUCH AMOUNT FROM THE LICENSEE OR LESSEE IN CASH OR BY TH E ISSUE OF CHEQUES OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, COLLECT FROM THE LICENSEE OR LESSEE OF ANY SUCH LICENSE, CONTRACT OR LEASE OF THE MINING AND Q UARRYING A SUM EQUAL TO 2%, OF SUCH AMOUNT AS INCOME-TAX ALONG WITH SURCHARGE AND EDUCATION CESS AS APPLICABLE. SINCE THE DISTRICT MAGISTRATE OF JHANSI HAS GRANTED LICENSES AND LEASES FOR MINING AND QUARRY AND FAILED TO COLLECT TCS, THEREFORE, TH E DISTRICT MAGISTRATE WAS LIABLE TO BE PROCEEDED U/S. 206C OF THE IT ACT. IN RESPONS E TO THE SHOW CAUSE NOTICE, THE DISTRICT MINING OFFICER ATTENDED THE PROCEEDINGS BE FORE THE AO AND STATED THAT LEASE AND LICENSE ARE GRANTED BY THE DISTRICT MAGIS TRATE BUT NO TCS HAS BEEN DONE. THE AO ON CONSIDERATION OF THE DETAILS OF THE RECEI PTS OF AMOUNTS FROM THE PERSONS TO WHOM MINES / QUARRIES ARE GIVEN, FOUND THAT THE TOTAL AMOUNT RECEIVED WAS RS.56,41,86,236/- IN ALL THE ASSESSMENT YEARS UNDER APPEAL, ON WHICH NO TCS HAS BEEN MADE BY THE DISTRICT MAGISTRATE. THE DISTRICT MAGISTRATE IN HIS REPLY SUBMITTED THAT THE TAX IS NOT COLLECTABLE ON ROYALT Y RECEIVED FROM LICENSEES / LESSEES OF MINES / QUARRIES. IT WAS FURTHER SUBMITTED THAT ALL THE LICENSEES / LESSEES ARE PAYING TAX. THE AO, HOWEVER, DID NOT ACCEPT THE CON TENTION OF THE ASSESSEE ITA NO. 137 TO 140/AGRA/2011 4 BECAUSE THE PROVISIONS OF SECTION 206C(1C) OF THE I T ACT IS APPLICABLE IN THE CASE OF THE ASSESSEE ON THE AMOUNT PAYABLE OR PAID BY TH E LICENSEES OR LESSEES FOR USE OF MINES AND QUARRIES. THEREFORE, THE WORD ROYALTY I S NOT RELEVANT. ACCORDINGLY, THE ASSESSEE WAS HELD TO BE IN DEFAULT OF NOT COLLECTIN G TCS AND PAYMENT TO GOVERNMENT DEPARTMENT. THE ASSESSEE WAS HELD LIABLE TO INTEREST AS WELL. THE COMMON ORDER OF THE AO FOR ALL THE ASSESSMENT YEARS UNDER APPEALS WAS CHALLENGED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) CONFIRMED THE ORDER OF THE AO ON THE ABOVE GROUNDS OF APPEAL AND HELD THAT THE AS SESSEE IS LIABLE TO COLLECT TCS AND IT IS IMMATERIAL WHETHER THE LICENSEES OR LESSE ES HAVE FILED THEIR RETURN OF INCOME OR NOT. THE PROVISIONS OF SECTION 206C(6A) E NACTED W.E.F. 01.04.2007 WAS CONSIDERED FOR THE PURPOSE OF LEVY OF PENALTY AND H AS NO EFFECT ON THE LIABILITY TO COLLECT TAX U/S. 206C(6) OF THE IT ACT. THE LD. CIT (A) ALSO HELD THAT THE ASSESSEE IS ALSO LIABLE FOR INTEREST U/S. 206C(7) OF THE IT ACT . THE ASSESSEE IS IN APPEALS ON THE ABOVE GROUNDS OF APPEALS IN ALL THE APPEALS FILED F OR SEPARATE ASSESSMENT YEARS. THE POINTS RAISED BY THE LD. COUNSEL FOR THE ASSESSEE A RE TAKEN UP FOR THE PURPOSE OF DISPOSAL SEPARATELY AS UNDER : [I]. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE DISTRICT MAGISTRATE IS NOT THE HEAD OF THE DEPARTMENT OF MINING AND TAN NUMBER IS ISSUED IN THE NAME OF DISTRICT MINING OFFICER, JHANSI. THEREFORE, DISTRICT MAGISTRATE IS NOT LIABLE FOR TCS AND RELIED UPON THE DECISION OF HONBLE SUP REME COURT IN THE CASE OF ITO ITA NO. 137 TO 140/AGRA/2011 5 VS. CH. ATCHAIAH, 84 TAXMAN 639 (218 ITR 239), IN W HICH IT WAS HELD THAT THE AO IS NOT PRECLUDED FROM TAXING RIGHT PERSON WITH RESP ECT TO THAT INCOME. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTH ORITIES BELOW. [I(I)]. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AN D DO NOT FIND ANY SUBSTANCE IN THE ARGUMENTS OF THE LD. COUNSEL FOR T HE ASSESSEE. THE AO SPECIFICALLY NOTED IN THE IMPUGNED ORDER THAT THE DISTRICT MAGIS TRATE, JHANSI ON BEHALF OF THE GOVERNMENT HAVE GRANTED LICENSE AND LEASE FOR MININ G OR QUARRIES IN HIS TERRITORIAL JURISDICTION AND COLLECTED AMOUNTS AS ROYALTIES ETC . FROM THE LICENSEES AND LESSEES AGAINST USE OF SUCH MINES / QUARRIES FOR THE PURPOS E OF BUSINESS LIKE EXTRACTING OF GITTI, BALLAST / KHANDA, BOULDERS ETC. THE DISTRICT MINING OFFICER APPEARED BEFORE THE AO AND ALSO STATED THAT THE LEASES AND LICENSES ARE GRANTED BY THE DISTRICT MAGISTRATE. THE DISTRICT MAGISTRATE IN HIS REPLY NE VER DISPUTED BEFORE THE AO THAT HE HAS NOT GRANTED LICENSES OR LEASES FOR MINING AN D QUARRYING AS NOTED BY THE AO. WHAT THE DISTRICT MAGISTRATE HAS STATED WAS THAT TH E TAX IS NOT COLLECTABLE ON ROYALTIES RECEIVED FROM THE LICENSEES / LESSEES OF MINES / QUARRIES AND THAT THE LICENSEES ARE PAYING INCOME-TAX AND FILING THEIR RE TURNS OF INCOME. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED ONE OF THE SPECIMEN COP Y OF THE AGREEMENT AT PAGE 1 OF THE PAPER BOOK, WHICH SUPPORTS THE FINDING OF THE A O THAT THE LEASES / LICENSES HAVE BEEN GRANTED TO THE LESSEES/LICENSEES FOR EXTRACTIN G GITTI, BALLAST /KHANDA, BOULDERS IN DISTRICT JHANSI FOR A PARTICULAR PERIOD AGAINST CONSIDERATION OF THE AMOUNT AND ITA NO. 137 TO 140/AGRA/2011 6 THE SAME AGREEMENT IS SIGNED BY THE DISTRICT MAGIST RATE ON BEHALF OF THE STATE OF UTTAR PRADESH AS WELL AS IN-CHARGE MINING / MINERAL S, JHANSI. THE DISTRICT MAGISTRATE IS THE HEAD OF THE DISTRICT TO DEAL WITH ALL THE MATTERS AND ONLY HE IS THE AUTHORITY TO GRANT LICENSES /LEASES FOR USE OF THE MINES OR QUARRIES. THE IN-CHARGE OF MINING DEPARTMENT IS SUBORDINATE TO HIM AND CANNOT ACT OF HIS OWN WITHOUT GIVING AUTHORITY BY THE DISTRICT MAGISTRATE. THUS, IT WAS ADMITTED FACT THAT LEASE/LICENSE WAS GRANTED BY THE DISTRICT MAGISTRATE ON BEHALF OF THE STATE GOVERNMENT FOR MINES AND QUARRIES AGAINST CONSIDERATION. MAY BE THE TAN IS ISSUED IN THE NAME OF DISTRICT MINING OFFICER, IS NOT RELEVANT TO AVOID L IABILITY TO COLLECT TCS BY THE DISTRICT MAGISTRATE. CONSIDERING THE ABOVE FACTS, N OTED BY THE ASSESSING OFFICER AND CONFIRMED BY THE DISTRICT MINING OFFICER THAT LEASE S/LICENSES HAVE BEEN GRANTED BY THE DISTRICT MAGISTRATE, WOULD CLEARLY PROVE THAT T HE DISTRICT MAGISTRATE, JHANSI IS LIABLE TO COLLECT TCS IN THE FACTS AND CIRCUMSTANCE S OF THE CASE. THIS POINT IS ACCORDINGLY DECIDED AGAINST THE ASSESSEE. [II]. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED W ITH REGARD TO TCS LIABILITY FOR DEAD RENT / ROYALTY THAT THERE IS NO PROVISION U/S. 206C FOR COLLECTION OF TCS AND THESE PROVISIONS ARE NOT APPLICABLE AGAINST THE ASSESSEE. DEAD RENT WAS ON ACCOUNT OF GRANT OF LEASE/LICENSE FOR MINING AND DE AD RENT IS DEPENDENT ON EXTRACTION. THE ROYALTY DEPENDS ON COLLECTION ON TH E EXTRACTION. THE DEAD RENT IS FIXED TO BE PAID IN ADVANCE AND IT HAS NO CONNECTIO N WITH THE START OF BUSINESS AND ITA NO. 137 TO 140/AGRA/2011 7 WHEN THE BUSINESS IS STARTED THE ROYALTY IS PAYABLE . THEREFORE, ON THE DEAD RENT AND ROYALTY, IT IS NOT MENTIONED IN THE ABOVE PROVISION THAT THE ASSESSEE IS LIABLE FOR COLLECTION OF TCS IN THE MATTER. [II] (I). ON THE OTHER HAND, THE LD. DR RELIED UPO N THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ANY NAME M AY BE GIVEN TO ANYTHING IN THE AGREEMENT, BUT THE PROVISIONS OF SECTION 206C ARE A PPLICABLE ON THE AMOUNT RECEIVED AND COLLECTED FOR GRANT OF LICENSE AND LEA SE FOR MINING AND QUARRY AGAINST CONSIDERATION. THE DEAD RENT OR ROYALTY IS THE SAME TERM IN THE MINING BUSINESS AND LICENSE GRANTED. THEREFORE, THERE IS NO MERIT IN TH E CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. [II] (III). WE HAVE CONSIDERED THE RIVAL SUBMISSION S. SECTION 206C(1C) (6), (6A) & (7) OF THE IT ACT READS AS UNDER : (1C). EVERY PERSON, WHO GRANTS A LEASE OR A LICEN CE OR ENTERS INTO A CONTRACT OR OTHERWISE TRANSFERS ANY RIGHT OR INTEREST EITHER IN WHOLE OR IN PART IN ANY PARKING LOT OR TOLL PLAZA O R MINE OR QUARRY, TO ANOTHER PERSON, OTHER THAN A PUBLIC SECTOR COMPANY (HEREAFTER IN THIS SECTION REFERRED TO AS LICENSEE OR LESSEE) FOR TH E USE OF SUCH PARKING LOT OR TOLL PLAZA OR MINE OR QUARRY FOR THE PURPOSE OF BUSINESS SHALL, AT THE TIME OF DEBITING OF THE AMOUNT PAYABLE BY THE L ICENSEE OR LESSEE TO THE ACCOUNT OF THE LICENSEE OR LESSEE OR AT THE TIM E OF RECEIPT OF SUCH AMOUNT FROM THE LICENSEE OR LESSEE IN CASH OR BY TH E ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER , COLLECT FROM THE LICENSEE OR LESSEE OF ANY SUCH LICENCE, CONTRACT OR LEASE OF THE NATURE SPECIFIED IN COLUMN (2) OF THE TABLE BELOW, A SUM E QUAL TO THE ITA NO. 137 TO 140/AGRA/2011 8 PERCENTAGE, SPECIFIED IN THE CORRESPONDING ENTRY IN COLUMN (3) OF THE SAID TABLE, OF SUCH AMOUNT AS INCOME-TAX: TABLE SL. NO. NATURE OF CONTRACT OR LICENCE OR LEASE, ETC. PERCEN TAGE (1) (2) (3) (I) PARKING LOT TWO PER CENT (II) TOLL PLAZA TWO PER CENT (III) MINING AND QUARRYING TWO PER CENT.] EXPLANATION 1.FOR THE PURPOSES OF THIS SUB-SECTION , MINING AND QUARRYING SHALL NOT INCLUDE MINING AND QUARRYING O F MINERAL OIL. EXPLANATION 2.FOR THE PURPOSES OF EXPLANATION 1, MINERAL OIL INCLUDES PETROLEUM AND NATURAL GAS.] (6) ANY PERSON RESPONSIBLE FOR COLLECTING THE TAX W HO FAILS TO COLLECT THE TAX IN ACCORDANCE WITH THE PROVISIONS OF THIS S ECTION, SHALL, NOTWITHSTANDING SUCH FAILURE, BE LIABLE TO PAY THE TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT IN ACCORDANCE WITH THE PROVI SIONS OF SUB- SECTION (3). [(6A) IF ANY PERSON RESPONSIBLE FOR COLLECTING TAX IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION DOES NOT COLLECT THE WHOLE OR ANY PART OF THE TAX OR AFTER COLLECTING, FAILS TO PAY THE TAX A S REQUIRED BY OR UNDER THIS ACT, HE SHALL, WITHOUT PREJUDICE TO ANY OTHER CONSEQUENCES WHICH HE MAY INCUR, BE DEEMED TO BE AN ASSESSEE IN DEFAUL T IN RESPECT OF THE TAX: PROVIDED THAT NO PENALTY SHALL BE CHARGED UNDER SECTION 221 FROM SUCH PERSON UNLESS THE ASSESSING OFFICER IS SATISFI ED THAT THE PERSON HAS WITHOUT GOOD AND SUFFICIENT REASONS FAILED TO C OLLECT AND PAY THE TAX. (7) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (6), IF THE PERSON RESPONSIBLE FOR COLLECTING TAX] DOES NOT COL LECT THE TAX OR AFTER COLLECTING THE TAX FAILS TO PAY IT AS REQUIRED UNDE R THIS SECTION, HE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF ONE PER CENT PER MONTH ITA NO. 137 TO 140/AGRA/2011 9 OR PART THEREOF ON THE AMOUNT OF SUCH TAX FROM THE DATE ON WHICH SUCH TAX WAS COLLECTIBLE TO THE DATE ON WHICH THE TAX WA S ACTUALLY PAID AND SUCH INTEREST SHALL BE PAID BEFORE FURNISHING THE Q UARTERLY STATEMENT FOR EACH QUARTER IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (3). THE ABOVE PROVISIONS PROVIDED THAT EVERY PERSON WHO GRANTS A LEASE OR LICENSE OR ENTERS INTO A CONTRACT OR OTHERWISE TRANSFERS ANY R IGHT OR INTEREST EITHER IN WHOLE OR IN PART IN ANY PARKING LOT OR TOLL PLAZA OR MINE OR QUARRY, TO ANOTHER PERSON, OTHER THAN A PUBLIC SECTOR COMPANY (LICENSEE OR LESSEE) F OR THE USE OF SUCH PARKING LOT OR TOLL PLAZA OR MINE OR QUARRY FOR THE PURPOSE OF BUS INESS SHALL, AT THE TIME OF DEBITING OF THE AMOUNT PAYABLE BY THE LICENSEE OR L ESSEE TO THE ACCOUNT OF THE LICENSEE OR LESSEE OR AT THE TIME OF DEBITING OF TH E AMOUNT PAYABLE BY THE LICENSEE OR LESSEE TO THEIR ACCOUNT IN CASH OR BY WAY OF CHE QUES OR DRAFT OR BY ANY SUCH MODE, COLLECT FROM THE LICENSEE OR LESSEE THE AMOUN T OF TAX MENTION IN THE ABOVE SCHEDULE. SUB-SECTION (6) PROVIDES THE RESPONSIBIL ITY OF PERSON FOR COLLECTING THE TAX WHO FAILS TO COLLECT THE TAX IN ACCORDANCE WITH THE ABOVE PROVISIONS AND ACCORDING TO SUB-CLAUSE (7), SUCH PERSON SHALL BE L IABLE FOR INTEREST AT THE SPECIFIED RATE. IT IS NOT IN DISPUTE THAT DISTRICT MAGISTRATE , JHANSI HAS GRANTED LEASE OR LICENSE TO THE LESSEE/LICENSEE AND TRANSFERRED THE RIGHT OR INTEREST IN MINES OR QUARRIES TO THE LICENSEE/LESSEE FOR USE OF MINES OR QUARRIES FOR TH E PURPOSE OF BUSINESS. THE OTHER REQUIREMENT FOR COLLECTION OF THE TCS HAD BEEN THAT AT THE TIME OF DEBITING OF THE AMOUNT PAYABLE BY THE LICENSEE OR LESSEE IN THIS RE GARD, THE PERSON WHO HAS GRANTED LEASE OR LICENSE SHALL COLLECT FROM THE LICENSEE OR LESSEE THE AMOUNT AS PER SCHEDULE ITA NO. 137 TO 140/AGRA/2011 10 AS TAX COLLECTION AT SOURCE. THEREFORE, THE IMPORTA NT REQUIREMENT IS THE AMOUNT PAYABLE OR RECEIPT OF AMOUNT. THEREFORE, THE AMO UNT PAYABLE OR THE AMOUNTS RECEIVED ARE THE IMPORTANT FACTORS WHICH SHALL HAVE TO BE TAKEN INTO CONSIDERATION AT THE TIME OF COLLECTION OF TCS. THE ABOVE PROVISI ON, THEREFORE, WOULD NOT BE RESTRICTED TO THE AMOUNTS PAID OR PAYABLE ON ACCOUN T OF SPECIFIED TERMS. IT MAY BE ANYTHING AND AS SUCH IT WOULD ALSO APPLY AGAINST TH E AMOUNT PAYABLE OR PAID ON ACCOUNT OF DEAD RENT / ROYALTY. WHATEVER NAME IS GI VEN IN THE AGREEMENT OF MINING, THE SAME IS PAYABLE BY THE LICENSEE TO THE DISTRICT MAGISTRATE AND UPON THAT THE DISTRICT MAGISTRATE IS REQUIRED TO COLLECT TCS AS P ER ABOVE PROVISIONS. WHETHER DEAD RENT WAS TO BE PAID IN ADVANCE OR ROYALTY WAS TO BE PAID AFTER START OF BUSINESS ARE NOT RELEVANT CRITERIA TO DEAL WITH THE PROVISIO NS OF SECTION 206C(1C) OF THE IT ACT. FURTHER, ON GROUND NO. 4, IT IS STATED THAT SE CTION 206(6A) HAS BEEN BROUGHT ON THE STATUTE W.E.F. 01.04.2007 AND THEREFORE, THE AS SESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT. SINCE THE ASSESSEE WAS RESPONS IBLE FOR COLLECTING TAX AND FAILED TO DO SO IN ACCORDANCE WITH THE PROVISIONS OF LAW, THEREFORE, FOR THE FAILURE OF ASSESSEE TO COLLECT THE TAX, THE ASSESSEE WOULD BE LIABLE TO PAY TAX TO THE CREDIT OF THE CENTRAL GOVERNMENT IN ACCORDANCE WITH LAW. THER EFORE, QUOTING A WRONG PROVISION WOULD NOT BE RELEVANT FOR THE PURPOSE OF DECIDING THE ISSUE. SAME VIEW IS TAKEN BY ITAT, AGRA BENCH IN THE CASE OF AGRA DEVEL OPMENT AUTHORITY VS. ACIT, 138 ITD 127. THE ASSESSEE HAS SINCE FAILED TO COMPL Y WITH THE PROVISIONS OF LAW ITA NO. 137 TO 140/AGRA/2011 11 AND WAS THEREFORE, LIABLE TO PAY INTEREST ALSO. ACC ORDINGLY, GROUND NO. 2 TO 5 OF APPEAL OF THE ASSESSEE ARE DISMISSED. [III]. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SU BMITTED THAT ALL THE LICENSEES/LESSEES ARE ASSESSEES OF INCOME TAX DEPAR TMENT AND PAID INCOME-TAX, THEREFORE, THERE SHOULD NOT BE A DOUBLE DEDUCTION O F TCS FROM THE ASSESSEE AND SUBMITTED THAT NO PROPER OPPORTUNITY WAS GIVEN AT T HE TIME OF CONSIDERING THE ISSUE AND THE LD. CIT(A) HAS WRONGLY NOTED IN THE APPELLA TE ORDER THAT IT IS IMMATERIAL WHETHER THE LICENSEES/LESSEES HAVE FILED THEIR RETU RN OF INCOME OR NOT BECAUSE THE ASSESSEE IS REQUIRED TO COLLECT TCS IN ACCORDANCE W ITH THE ABOVE PROVISIONS. HE HAS SUBMITTED THAT SINCE ALL THE LICENSEES/LESSEES HAVE PAID DUE TAXES, THEREFORE, THERE SHOULD NOT BE FURTHER RECOVERY FROM THE ASSES SEE. IN SUPPORT OF THIS CONTENTION, HE RELIED UPON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF SREE MANJUNATHA WINES VS. CIT, 15 TAXMAN. C OM 6, IN WHICH IT WAS HELD : FROM THE PROVISIONS OF SECTION 206C, IT IS CLEAR TH AT THOUGH ASSESSEE COLLECTS THE TAX AND REMIT THE MONEY TO TH E GOVERNMENT, THE SAID AMOUNT REMITTED WILL BE TO THE ACCOUNT OF THE BUYER. IN OTHER WORDS, THE SAID AMOUNT WILL BE GIVEN DEDUCTIONS TOW ARDS THE TAX PAYABLE BY THE BUYER. IF IN A GIVEN CASE THE ASSESS EE HAS NOT COLLECTED THE TAX FROM THE BUYER AND IF THE BUYER HAS PAID TA X TO THE REVENUE, THE REVENUE IS NOT DEPRIVED OF THE TAX WHICH IS LEGITIM ATELY DUE TO THEM. IT IS IN THAT CONTEXT, BEFORE PROCEEDING AGAINST THE A SSESSEE, IT IS NECESSARY TO FIND OUT WHETHER THE BUYER HAS PAID TA X IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND ONLY IN THE EVEN T THE BUYER HAS NOT PAID THE TAX, THEN THE AUTHORITIES CAN PROCEED AGAI NST THE ASSESSEE WHO WAS UNDER THE OBLIGATION TO COLLECT TAX AND REM IT TO THE GOVERNMENT. IT IS WELL-SETTLED LAW THAT THERE CANNO T BE ANY DOUBLE ITA NO. 137 TO 140/AGRA/2011 12 PAYMENT OF TAX. IT IS IN THAT CONTEXT AS THE MATERI AL ON RECORD DID NOT DISCLOSE ALL THESE PARTICULARS, THE TRIBUNAL HAS SE T ASIDE THE ORDER PASSED BY THE AUTHORITIES AND REMITTED THE MATTER B ACK TO THE ORIGINAL AUTHORITY TO UNDERTAKE THIS EXERCISE. IT IS IN THAT CONTEXT, IT IS STATED THAT THE DIRECTIONS ISSUED IN THE AFORESAID CASE BY THE COURT SHOULD BE BORNE IN MIND. UNDER THESE CIRCUMSTANCES, THERE IS NO IRREGULARITY COMMITTED BY THE TRIBUNAL IN PASSING THE IMPUGNED O RDER, CALLING FOR INTERFERENCE. [III] (I). ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASSESSEE HAS NOT PRODUCED ANY SUFFICIENT EVIDENCE BEFORE THE AO. THEREFORE, THE MATTER MAY NOT BE REMANDED TO THE AO FOR RECONSIDERATION. [III] (II). ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTIES, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION F OR LIMITED PURPOSE ON THIS ISSUE AT THE LEVEL OF THE AO. THE ASSESSEE SUBMITTED BEFORE THE AO THAT ALL THE LICENSEES ARE ASSESSED TO INCOME-TAX, BUT NO EVIDENCES HAVE BEEN FILED BEFORE THE AO FOR PAYMENT OF TAXES. THE LD. CIT(A) INSTEAD OF VERIFYI NG THE PAYMENT OF TAX BY THE LICENSEES/LESSEES, WRONGLY NOTED THAT IT IS IMMATER IAL WHETHER LICENSEES OR LESSEES HAVE FILED RETURN OF INCOME OR NOT. IT THEREFORE, A PPEARS THAT AT THE STAGE OF AO, NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE IN THI S REGARD AND THE LD. CIT(A) HAS FAILED TO APPRECIATE THIS ISSUE IN ACCORDANCE WITH LAW AND THE DECISION OF HONBLE KARNATAKA HIGH COURT REFERRED TO ABOVE. THEREFORE, IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO SUPPORT SUCH CONTENTION BEFORE THE AO. WE, THEREFORE, SET ASIDE THE ORDERS OF THE LD. AUTHORITIES BELOW TO THIS ITA NO. 137 TO 140/AGRA/2011 13 EXTENT AND RESTORE THE ISSUE TO THE FILE OF AO WITH DIRECTION TO ASSESSEE TO SUBSTANTIATE THAT ALL THE PAYMENTS OF TAXES HAVE BE EN MADE BY THE LICENSEES /LESSEES REFERRED IN ALL THE ASSESSMENT YEARS UNDER APPEALS WITH PROPER EVIDENCE OF PAYMENTS BY THE LICENSEES OR LESSEES IN QUESTION AN D THE AO ON VERIFICATION OF THE SAME SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THIS POINT IS DECIDED IN FAVOUR OF THE ASSESSEE FOR STATISTICAL PURPOSES. NO OTHER POINT IS ARGUED OR PRESSED BY BOTH THE PA RTIES. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE PARTLY ALLOWED FOR STATISTICAL PURPOSES, AS NOTED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY