Aayushi Benefit Trust, Surat V. The Dy.CIT, (TDS), Surat

ITA 1440/AHD/2015

• Counselvise Citation: [2016] 128 COUNSELVISE.COM (IT) 9757 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-08-2016
• Assessment Year: 2015-2016
• Appeal Filed On: 21-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; TDS; Set aside
• Section: 154; 195; 250; 201

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA NO. 1440/AHD/2015 / ASSESSMENT YEAR: 2015-16 AAYUSHI BENEFIT TRUST, SAMAYSAR BUNGLOW, NEAR NANDINI-3, VIP ROAD, VESU, SURAT-395007 PAN : AACTA 9498 C VS DCIT (TDS) SURAT ./ ITA NO. 1441/AHD/2015 / ASSESSMENT YEAR: 2015-16 SMT. NIKA YOGESH SHAH, SAMAYSAR BUNGLOW, NEAR NANDINI-3, VIP ROAD, VESU, SURAT-395007 PAN : AAQPS 0798 F VS DCIT (TDS) SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE(S) BY : SHRI HIMANSHU GANDHI, AR REVENUE BY : SHRI K. MADHUSUDAN, SR DR / DATE OF HEARING : 29/08/2016 / DATE OF PRONOUNCEMENT: 29/08/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- THESE TWO APPEALS BY DIFFERENT ASSESSEES ARE DIREC TED AGAINST THE ORDER OF THE LD. CIT(A)-3, SURAT, SURAT DATED 09.04 .2015 IN THE CASE OF AAYUSHI BENEFIT TRUST AND AGAINST THE ORDER OF LD. CIT(A)-3, SURAT DATED 24.04.2015 IN THE CASE OF SMT. NIKA YOGESH SHAH, BO TH PASSED FOR AY 2015- 2016. SINCE COMMON ISSUES INVOLVED IN BOTH THE APPE ALS, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO NSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS. 1440 & 1441 AHD 2015 AAYUSHI BENEFIT TRUST & NIKA YOGESH SHAH VS. DCIT AY : 2015-16 2 2. THE RESPECTIVE GROUNDS RAISED ARE AS UNDER:- ITA NO.1440/AHD/2015 ASSESSEE:-AAYUSHI BENEFIT TRU ST 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT (A) ERRED IN PASSING THE EX-PARTY ORDER WITHOUT GIVING FAIR O PPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT(A) FAILED TO CONSIDER THAT TDS WAS DEDUCTED U/S 195 (AND NOT U/S 194IA) AS THE TRANSFEROR IS NON-RESIDENT (CLEARLY MENTION IN STAT EMENT OF FACTS), THEREFORE APPELLANT HAD RIGHTLY FILED THE FORM NO.26Q FOR WHI CH TAN NUMBER IS MUST. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT (A) ERRED IN CONFIRMING THE LEVY OF INTEREST U/S 201 (1A) AMOUNT RS.6,00,195/- . 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT (A) FAILED TO APPRECIATE THAT THERE IS NO DELAY ON PART OF APPELL ANT FOR MAKING PAYMENT OF TDS. 5. ON THE FACTS AND CIRCUMSTANCES, OF CASE AND LAW , THE LD. CIT (A) ERRED IN ENHANCING AND DIRECTING THE ACIT (TDS), SURAT TO LEV Y THE PENALTY OF LATE FILING FEES WITHOUT GIVING OPPORTUNITY OF BEING HEA RD AND WITHOUT CONSIDERING THE FACTS THAT THERE IS NO DELAY IN FIL ING TDS RETURN. ITA NO.1441/AHD/2015 ASSESSEE:-SMT. NIKA YOGESH SH AH 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT (A) ERRED IN PASSING THE EX-PARTY ORDER WITHOUT GIVING FAIR O PPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT(A) FAILED TO CONSIDER THAT TDS WAS DEDUCTED U/S 195 (AND NOT U/S 194IA) AS THE TRANSFEROR IS NON-RESIDENT (CLEARLY MENTION IN STAT EMENT OF FACTS), THEREFORE APPELLANT HAD RIGHTLY FILED THE FORM NO.26Q FOR WHI CH TAN NUMBER IS MUST. 3. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT (A) ERRED IN CONFIRMING THE LEVY OF INTEREST U/S 201 (1A) AMOUNT RS. 66,690/- . 4. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW, THE LD. CIT (A) FAILED TO APPRECIATE THAT THERE IS NO DELAY ON PART OF APPELL ANT FOR MAKING PAYMENT OF TDS. 5. ON THE FACTS AND CIRCUMSTANCES, OF CASE AND LAW , THE LD. CIT (A) ERRED IN ENHANCING AND DIRECTING THE ACIT (TDS), SURAT TO LEV Y THE PENALTY OF LATE FILING FEES WITHOUT GIVING OPPORTUNITY OF BEING HEA RD AND WITHOUT CONSIDERING THE FACTS THAT THERE IS NO DELAY IN FIL ING TDS RETURN. ITA NOS. 1440 & 1441 AHD 2015 AAYUSHI BENEFIT TRUST & NIKA YOGESH SHAH VS. DCIT AY : 2015-16 3 3. LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, CON TENDS THAT BOTH THE ORDERS WERE PASSED BY LD. CIT(A) EX-PARTE BY FOLLOWING OBSERVATIONS:- 4. IN RESPONSE TO THE NOTICE U/S 250 DATED 17.03. 2014 THERE HAS BEEN NO COMPLIANCE FROM THE APPELLANT, ON THE DATE OF HEARI NG I.E. 08.04.2015. THE NOTICE WAS SET BY SPEED POST. THE SPEED POST RECOR D SHOWS THAT THE APPELLANT HAS MOVED FROM THAT ADDRESS. HOWEVER, THERE IS NO OTHER ADDRESS AVAILABLE ON RECORD. NO POWER OF ATTORNEY HAS BEEN FILED AL ONG WITH FORM NO.35. THEREFORE, EVEN THE AUTHORIZED REPRESENTATIVE (IF A NY) CANNOT BE INFORMED. THEREFORE, THE APPEAL IS BEING DECIDED ON THE BASIS OF FACTS AVAILABLE ON RECORD. 3.1 IT IS CONTENDED THAT. (I) THE ASSESSEE HAS NEVER BEEN HEARD ON THE ISSUE. TH E ASSESSEE HAS DULY PAID THE TAX IMMEDIATELY AFTER THE TAN NUMBER WAS ALLOTTED. THE DELAY FOR WHICH INTEREST IS CHARGED WAS NOT CAU SED BY THE FAULT OF ASSESSEE(S) INASMUCH AS IMMEDIATELY ON ALL OTMENT OF TAN THE PAYMENT WAS MADE. WITHOUT TAN NUMBER, THE ASSE SSEE COULD NOT HAVE MADE THE PAYMENT. (II) SINCE THE ASSESSEES APPEALS HAVE BEEN DISMISSED EX-PARTE , THE ASSESSEE HAS NEVER BEEN HEARD. THE IMPUGNED EX-PARTE ORDERS HAVE BEEN PASSED, DISMISSING THE APPEALS OF THE ASS ESSEE(S), MERELY BY OBSERVING THAT THE ASSESSEE(S) HAS MOVED FROM THE ADDRESS. (III) THE ASSESSEE FILED AN APPLICATION U/S 154 BEFORE TH E LD. CIT(A) RAISING THESE CONTENTIONS BUT THE SAME HAS BEEN DIS MISSED. THUS, THE ASSESSEE(S) WAS LEFT WITHOUT JUST AND PROPER RE MEDY. (IV) THE PRINCIPLES OF NATURAL JUSTICE REMAIN UN-COMPLIE D WITH INASMUCH AS THE ASSESSEES HAVE NEVER BEEN HEARD ON THE ISSUE. ITA NOS. 1440 & 1441 AHD 2015 AAYUSHI BENEFIT TRUST & NIKA YOGESH SHAH VS. DCIT AY : 2015-16 4 (V) LD. COUNSEL PLEADS THAT THE IN THE INTEREST OF NATU RAL JUSTICE THE ISSUES RAISED IN THESE APPEALS MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING T HE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 4. LD. DEPARTMENTAL REPRESENTATIVE IS HEARD. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE(S) HAS NOT BEEN GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE INCLI NED TO SET ASIDE THE ISSUES RAISED IN THESE APPEALS BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEAR ING TO THE ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 29 TH AUGUST, 2016 AT AHMEDABAD. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 29/08/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD