ITO, (TDS), WD-59(4), KOLKATA, Kolkata V. M/s Tea Board, Kolkata

ITA 1454/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1915 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2014
• Court: TRIBUNAL
• Assessee Lawyers: MANOJ KATKURKA
• Keywords: Additional evidence
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENC H KOLKATA BEFORE SHRI N.V.VASUDEVAN, JM & DR. A.L.SAINI, AM ./ ITA NO.1454&1455/KOL/2014 ( / ASSESSMENT YEAR:2009-2010) ITO(TDS), WARD-59(4), KOLKATA 10B, MIDDLETON ROW, KOLKATA-71 VS. M/S TEA BOARD, 14, BTM SARANI, KOLKATA-700001 ./ ./PAN/GIR NO.: AAAJT 2422 P ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI MANOJ KATKURKA, ADVOCATE REVENUE BY : NONE / DATE OF HEARING : 02/03/2017 /DATE OF PRONOUNCEMENT 05/04/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM THE CAPTIONED TWO APPEALS FILED BY THE REVENUE, PER TAINING TO THE ASSESSMENT YEAR 2009-2010 (FY:2008-09. Q.4, FORM-26 Q-FOR A.Y. 2009- 10) AND ( FY:2008-09. Q.3, FORM-26Q- FOR A.Y.2009-1 0), ARE DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-I, KOLKATA I N APPEAL NO.559/CIT(A)-I/W-59(4)/2011-12, DATED 28.02.2014, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER (AO ) UNDER SECTION 201(1)/201(1A) OF THE INCOME TAX ACT 1961, (HEREINA FTER REFERRED TO AS THE ACT), DATED 18.03.2011 AND 14.03.2011 RESPECTIVEL Y. 2. SINCE THESE TWO APPEALS ( FOR DIFFERENT QUARTERS WITHIN ONE A.Y.2009-10), FILED BY THE REVENUE, RELATE TO SAME ASSESSE, SAME ASSESSMENT YEAR AND COMMON ISSUES INVOLVED, THEREFO RE THESE HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. THE FACTS MENTIONED IN ITA NO.1454 & 1455/KOL/14 M/S TEA BOARD 2 REVENUE`S APPEAL IN ITA 1454/KOL/2014 ARE TAKEN INT O CONSIDERATION FOR DECIDING ALL THE APPEALS, THAT IS, TAKEN BY US AS A LEAD CASE. 3. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE TH AT THE ASSESSEE FILED ITS E-TDS STATEMENT AND CORRECTION STATEMENT. THE T DS STATEMENT HAS BEEN ANALYZED ON THE BASIS OF ENTRIES REPORTED BY D EDUCTOR ASSESSEE. IN THE TDS STATEMENT THE INFORMATION IS AVAILABLE AS P ER BANK CHALLAN DETAILS. THE AO NOTICED THAT ON ANALYSIS OF THESE T DS STATEMENTS SOME DEFAULTS REVEALED I.E. NON-PAYMENT OF AMOUNT DEDUCT ED, LOW DEDUCTION OF TDS AT PRESCRIBED RATES AND LATE PAYMENT OF TAXES. THEREFORE, THE AO ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE U/S.201( 1A) OF THE ACT ASKING THE DETAILED JUSTIFICATION INDICATING ENTRY- WISE REASONS OF THE DEFAULTS NOTICED IN THE CASE OF DEDUCTOR-ASSESSEE. SINCE THE DETAILS WERE FACTUAL AND BASED ON THE ENTRIES REPORTED IN THE TD S STATEMENT, THE AO ASKED THE ASSESSEE TO FILE THE CORRECTION STATEMENT TO RECTIFY THE DATA ENTRY ERRORS IF ANY, WITHIN 15 DAYS. THE ASSESSEE D ID NOT FILE ANY CORRECTION STATEMENT UPTO TO THE DATE OF ORDER OF THE AO, THER EFORE, THE AO HAS PASSED THE ORDER ON 18.03.2011. 4. AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE FIL ED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS PARTLY ALLOWED THE A PPEAL OF THE ASSESSEE OBSERVING THE FOLLOWINGS :- 3. THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CONSI DERED. IT IS SEEN THAT THE ORDER OF THE AO IS DATED 18.03.2011, WHERE AS THE APPELLANT HAS FILED CORRECTION STATEMENT ON 22.08.2011 I.E. AFTER THE ABOVE ORDER. IT IS ALSO SEEN THAT SHORT DEDUCTION OF TAX HAS BEEN ADMI TTED TO THE EXTENT OF RS.2,48,486/- IN RESPECT OF PAYMENTS TO OGILVY &. M ATHER PVT LTD AND LINTAS INDIA (P) LTD AND IN OTHER CASES IT IS CLAIM ED THAT THE PAYMENTS ARE COVERED BY SECTION 194C AND NOT U/S 194J. THIS CLAI M IS PRIMA FACIE FOUND TO BE CORRECT ON THE BASIS OF THE DETAILED SUBMISSI ON FILED BY THE APPELLANT. THE A.O IS ACCORDINGLY DIRECTED TO CONSI DER THE SUBMISSIONS ITA NO.1454 & 1455/KOL/14 M/S TEA BOARD 3 SAME. FURTHER IN RESPECT OF SHORT DEDUCTION THE APP ELLANT CLAIM IS TO BE ALLOWED IN VIEW OF DECISION OF THE SUPREME COURT IN HINDUSTAN BEVERAGES PVT LTD VS CIT IN 293 ITR 226, THE A.O. SHOULD THER EFORE GIVE BENEFIT TO THE APPELLANT WHERE SUCH PAYMENT HAS BEEN OFFERED T O TAX BY THE RECIPIENT. HOWEVER IN THE ABOVE TWO CASES OF ADMITT ED SHORT DEDUCTION OF TAX RS.2,48,486/- AND OTHER INSTANCES WHERE THERE I S SHORT DEDUCTION, THE APPELLANT WOULD STILL BE LIABLE FOR PAYMENT OF INTE REST. THE A.O IS THEREFORE DIRECTED TO CONSIDER THE ABOVE AS WELL AS THE CORRE CTION STATEMENT FILED ON 22.08.2011 AND PASS A FRESH SPEAKING ORDER AFTER DU E VERIFICATION AS PER LAW. AS A RESULT, THE APPEAL IS 'PARTLY ALLOWED'. 5. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE REVENUE IS IN APPEAL BEFORE US AND HAS TAKEN THE FOLLOWING GROUND S OF APPEAL :- A. LD. CIT(A) ERRED IN ACCEPTING THAT PAYMENTS ARE COVERED BY SECTION 194C AND NOT U/S. 194J OF THE I.T.ACT, 1961 . B. LD. CIT(A) IS NOT JUSTIFIED IN LAW IN ADMITTING FRESH EVIDENCE IN CONTRAVENTION OF RULE 46A. C. LD. CIT(A) HAS ERRED IN HOLDING THAT THE PRIMA FACIE PAYMENTS ARE COVERED BY SECTION 194C AND NOT U/S. 194J. D. THAT THE DEPARTMENT CRAVES LEAVE TO ADD, ALTER OR MODIFY ANY GROUND OF APPEAL DURING THE HEARING. 6. ALTHOUGH IN THIS APPEAL, THE REVENUE HAS RAISED FOUR GROUNDS OF APPEAL BUT AT THE TIME OF HEARING THE SOLITARY GRIE VANCE OF THE REVENUE HAS BEEN CONFINED TO THE ISSUE THAT PAYMENT S MADE BY THE ASSESSEE ARE COVERED BY SECTION 194J INSTEAD OF SEC TION 194C AND THE COMMISSIONER OF INCOME TAX (APPEAL) HAS ADMITTE D THE FRESH EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE I.T.RU LES. 6.1 LD DR FOR THE REVENUE HAS VEHEMENT SUBMITTED TH AT THE DURING THE APPELLATE PROCEEDINGS BEFORE THE LD CIT(A), THE ASS ESSEE SUBMITTED COPY OF BILLS SHOWING DEDUCTION OF TDS U/S.194C AND ASSE SSEE ALSO SUBMITTED THE WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A). IN T HE WRITTEN SUBMISSIONS AS SUBMITTED BY THE ASSESSEE BEFORE LD. CIT(A), THE ASSESSEE MENTIONED THAT HE MADE THE PAYMENT FOR FABRICATION OF NORMAL TIE, ADVERTISEMENT ETC, ITA NO.1454 & 1455/KOL/14 M/S TEA BOARD 4 WHICH FALL U/S.194C. THE ASSESSEE MADE PAYMENT MOST LY TO MIRACLE ADVERTISING FOR FABRICATION AND DECORATION WORK, TH EREFORE, THESE ARE COVERED U/S.194C. SINCE THE ASSESSEE HAS SUBMITTED FRESH EVIDENCE BEFORE THE CIT(A), LIKE COPY OF BILLS PAYMENT AND D ETAILS AND STATEMENT SHOWING THAT PAYMENTS WERE MADE BY THE ASSESSEE FOR FABRICATION OF NORMAL TIE, ADVERTISEMENT AND DECORATION EXPENSES, WHICH ARE COVERED U/S.194C. THESE ADDITIONAL EVIDENCES LIKE COPY OF B ILLS, EXPLANATION OF PAYMENT FOR FABRICATION, ADVERTISEMENT AND DECORATI ON WERE NOT FURNISHED BY THE ASSESSEE BEFORE THE AO. THEREFORE, THESE ARE ADDITIONAL EVIDENCES AND THE LD. CIT(A) HAS VIOLATED THE PROVISIONS OF R ULE 46A OF THE I.T.RULES, 1962. THEREFORE, THE SAID MATTER REQUIRES TO BE EXA MINED BY THE ASSESSING OFFICER. 6.2 ON THE OTHER HAND, LD. AR FOR THE ASSESSEE EVEN AGREED WITH THE PROPOSITION OF LD. DR FOR THE REVENUE TO SEND THE M ATTER BACK TO THE FILE OF AO TO EXAMINE THE COPY OF BILLS, VOUCHERS PAYMENT M ODE AND THE NATURE OF PAYMENT I.E. FABRICATION ADVERTISEMENT, DECORATI ON ETC. 6.3. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF THE LD DR FOR THE REVENUE. AS LD. DR FOR THE REVENUE HAS RIGHTLY POINTED OUT THAT THE ASSESSEE HAS SUBMITTED BEFORE THE LD. CIT(A) COPIES OF BILLS, VOUCHERS, PAYMENT MODE AND THE NATURE OF WORK I.E. FABRICATIO N ADVERTISEMENT, DECORATION ETC. THE NATURE OF WORK HAS NOT BEEN EXA MINED BY THE AO AND THE AO ALSO NOT EXAMINED THE COPY OF BILLS/VOUCHERS ETC. THEREFORE, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES A FRESH EX AMINATION AT THE END OF ITA NO.1454 & 1455/KOL/14 M/S TEA BOARD 5 THE AO, THEREFORE, WE REMIT THE ISSUE BACK TO THE F ILE OF THE AO TO EXAMINE THE COPY OF BILLS/ VOUCHERS AND THE MODE OF PAYMENT AND NATURE OF PAYMENT ETC. AND ADJUDICATE THE ISSUE ACCORDINGLY. 6.4. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE (ITA NO.1454 & 1455/KOL/2014), ARE ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05/0 4/2017. SD/ - (N.V.VASUDEVAN) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 05/04/2017 '#$%& /PRAKASH#MISHRA ,SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) $ % , / ITAT, KOLKATA 1. / THE APPELLANT-ITO(TDS), WARD-59(4), KOLKATA 2. / THE RESPONDENT.- M/S TEA BOARD 3. 0 ( ) / THE CIT(A), KOLKATA. 4. 0 / CIT 5. 12 3 4456 , 56 , / DR, ITAT, KOLKATA 6. 3 78 / GUARD FILE. 1 4 //TRUE COPY//