M/s. Gupta Marketing, Nagpur V. Income Tax Officer Ward-7(1),Nagpur, Nagpur

ITA 139/NAG/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9681 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 06-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D S JOGANI
• Section: 2

Judgement Text

ITA NO. 139/NAG/2010 GUPTA MARKETING, NAGPUR IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , NAGPUR BEFORE: SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI D.T. GARASIA , JUDICIAL MEMBER ITA NO. 139 / NAG / 20 10 ASSESSMENT YEAR : 2006 - 07 M/S. GUPTA MARKETING NAGPUR VS. ITO WAR D - 7(1) NAGPUR (APPELLANT) (RESPONDENT) PAN NO.AAFFG 1942C APPELLANT BY: SHRI D.S. JOGANI, ADVOCATE RESPONDENT BY: SHRI YASHWANT GOHIL, JCIT WITH DR. MILIND BHUSARI, CIT(DR) DATE OF HEARING: 16.10.2012 DATE OF PRONOUNCEMENT: 18.10.2012 ORDER PER P.K. BANSAL, ACCOUNTANT MEMBER: - THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATE TO THE ADDITION OF RS.1,01,680/ - BEING ADDED BY THE ASSESSING OFFICER U/S 40(A)(IA) AS CONFIRMED BY THE CIT(A). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER NOTED THAT THE ASSESSEE MADE THE PAYMENT OF INTEREST AMOUNTING TO RS.1,01,680/ - WITHOUT DEDUCTING ANY TDS. THE ASSESSEE EXPLAINED THAT HE HAS RECEIVED FORM NO.15 G . THEREFORE, NO TDS HAD BEEN DEDUCTED. THE ASSESSEE ALSO ADMITTED THAT THE COP IES OF 15G FORM S W ERE NOT SUBMITTED TO THE CIT AS REQUIRED UNDER THE INCOME - TAX RULES. THE ASSESSING OFFICER DISALLOWED A SUM OF RS.1,01,680/ - U/S 40(A)(IA) OF THE ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. U/S 40(A)(IA) OF THE ACT, INTEREST CAN BE DISALLOWED ONLY WHEN TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER 17B AND SUCH TAX HAS NOT BEEN DEDUCTED OR AFTER DEDUCTION H A S NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFIED U/S 139(1) OF THE ACT . SECTION 194A DEALS WITH THE D EDUCTION OF INTEREST OTHER THAN THE INTEREST ON SECURITIES. THE ASSESSEE DOES NOT DENY THAT TDS WAS DEDUCTIBLE AS PER THE PROVISION OF SECTION ITA NO.139/NAG/2010 GUPTA MARKETING, NAGPUR 2 194A. SUB - SECTION ( 1 A) OF SECTION 19 4 A PROVIDES FOR AN EXCEPTION THAT NO DEDUCTION OF TAX SHALL BE MADE IN THE CASE OF A PERSON (NOT BEING A COMPANY OR A FIRM) , IF SUCH PERSON FURNISHES TO THE PERSON RESPONSIBLE FOR PAYING ANY INCOME OF THE NATURE REFERRED TO IN SECTION 194A , A DECLARATION IN WRITING IN DUPLICATE IN THE PRESCRIBED FORMAT AND VERIFIED IN THE PRESCRI BED MANNER THAT THE TAX ON HIS ESTIMATED TOTAL INCOME OF THE PREVIOUS YEAR IN WHICH SUCH INCOME IS TO BE INCLUDED IN COMPUTING HIS TOTAL INCOME WILL BE NIL. RULE 29C PRESCRIBE S FORM NO.15 6 TO BE FURNISHED BY AN INDIVIDUAL U/S 19 7 A(1 A ). THIS IS A FACT THA T IN THIS CASE, ALL THE PERSONS HAVE FILED FORM 15 6 IN DUPLICATE TO THE ASSESSEE. SUB RULE 3 OF RULE 29C LAID DOWN THAT THE PERSON REFERRED TO IN RULE 2 SHALL DELIVER TO THE CHIEF COMMISSIONER OR COMMISSIONER ONE C OPY OF THE DECLARATION ON OR BEFORE THE 7 TH DAY OF THE MONTH NEXT FOLLOWING THE MONTH IN WHICH THE DECLARATION IS FURNISHED TO HIM. SECTION 197A(1 A ) NOWHERE PRESCRIBES THAT THE PERSON RESPONSIBLE F OR PAYING THE INTEREST SHOULD FILE COPY OF FORM 15 6 OR THE FORM AT MAY BE PRESCRIBED BEFORE THE CHIE F COMMISSIONER OR COMMISSIONER . SECTION 197A(1 A ) ONLY REQUIRES THAT A DECLARATION IN WRITING IN DUPLICATE IN THE PRESCRIBED FORMAT AND VERIFIED IN THE PRESCRIBED MANNER HAS TO BE SUBMITTED TO THE PERSON PAYING THE INTEREST. IT IS NOT DENIED THAT THE DECL ARATION BY THE PERSON WHO RECEIVED THE INTEREST WERE FILED IN THE PRESCRIBED FORMAT AND WERE VERIFIED IN THE PRESCRIBED MANNER. THIS IS THE CARDINAL PRINCIPLE OF LAW THAT THE RULE CANNOT SUPERSEDE THE ACT. IN OUR OPINION , UNDER THESE FACTS , IF THE ASSESS EE FAILED TO DELIVER THE COPY OF FORM 15G IN ACCORDANCE WITH RULE 29C(3), THE ASSESSEE HAS NOT COMMITTED A DE FAULT IN RESPECT OF DEDUCTION OF TAX AT SOURCE. WE ACCORDINGLY DELETE THE ADDITION MADE BY THE ASSESSING OFFICER AS CONFIRMED BY THE CIT(A). 4. I N THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 18.10 .20 1 2 SD/ - SD/ - ( D.T. GARASIA ) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER VG/SPS NAGPUR DATED 18 TH OCTOBER , 20 1 2 ITA NO.139/NAG/2010 GUPTA MARKETING, NAGPUR 3 COPY TO 1 M/S. GUPTA MARKETING, NEAR HOTEL SATKAR, AMARAVATI ROAD, NAGPUR 2 ITO WARD - 7(1), NAGPUR 3 THE CIT - IV , NAGPUR 4 THE CIT (A) , NAGPUR 5 THE DR, ITAT, NAGPUR 6 GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL NAGPUR