Sanjeev Sood, Solan V. ITO, , Parwanoo

ITA 1542/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4127 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Additional evidence; TDS; Set aside
• Section: 40(a)(ia); 201(1); 201

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH !', # $ BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO.1542/CHD/2018 / ASSESSMENT YEAR : 2013-14 SHRI SANJEEV SOOD C/O SOOD MARKETING INC, BAWA COMPLEX, SECTOR-1, PARWANNO, DISTT-SOLAN (H.P) VS. THE ITO PARWANOO, DISTT. SOLAN (H.P.) ./ PAN NO: AFCPS9525H / APPELLANT / RESPONDENT / ASSESSEE BY : SHRI SURINDER BABBAR, CA ! / REVENUE BY : SHRI MANJIT SINGH ' # $/ DATE OF HEARING : 14/08/2019 %&'( $/ DATE OF PRONOUNCEMENT : 21.08.2019 %&/ ORDER PER DIVA SINGH: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 28/09/ 2018 OF CIT(A)-, SHIMLA PERTAINING TO 2013 14 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), SHIMLA HAS GROSSLY ERRED IN CONCURRENCE WITH THE LD. A.O. IN UPHOLDING THE DISALLOWANCE OF RS. 94,918/- UNDER S. 40(A)(IA) OF THE INCOME-TAX ACT. 1961 DESPITE THE FACT THAT THE REQUISITE CERTIFICATE IN FORM NO. 26A UNDER FIR ST PROVISO TO SUB-SECTION (1) OF SECTION 201 FOR PAYMENT OF TAX BY THE PAYEE WAS DULY FILED BEFORE THE LD. CIT(A). ITA-1542/CHD/2018 A.Y. 2013-14 PAGE 2 OF 4 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) SHOULD HAVE CONSIDERED THE REQUISITE FORM 26A FILED DURING THE APPELLATE PROCEEDINGS KEEPING IN VIEW THE FACT THAT THE SAME COULD NOT BE OBTAINED DURING THE ASSESSMENT PROCEEDINGS. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, DELETE ANY GROUND OF APPEAL BEFORE THE DISPOSAL OF THE APPEAL. 2. THE RELEVANT FACTS OF THE CASE HAVE BEEN SET OUT IN PARA 5.3 TO PARA 5.3.1 BY THE CIT(A.) FOR READY REFERENC E THE RELEVANT DISCUSSION IS EXTRACTED HEREUNDER FOR THE SAKE OF COMPLETENESS : 5.3 GROUND NO. 3 : THE AO NOTICED THAT THE ASSESSE E HAS DEBITED TO P&L ACCOUNT AN AMOUNT OF RS. 94,918/- ON ACCOUNT OF INT EREST PAID TO M/S HDB FINANCE CO., WHICH WAS A NON-BANKING FINANCE COMPAN Y. IT WAS ALSO NOTICED BY THE A.O. THAT NO TDS WAS DEDUCTED BY THE ASSESSEE W HILE MAKING PAYMENT OF INTEREST TO THE SAID NBFC AS REQUIRED BY THE PROVIS IONS OF SECTION 194A OF THE ACT. THE A.O. ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY THE INTEREST PAID TO NBFC MAY NOT BE DISALLOWED AND BROUGHT TO TAX. IN RESPON SE, THE ASSESSEE FILED REPLY AND THE SAME WAS CONSIDERED BY THE A.O. AND THE A.O . HELD THAT THE ASSESSEE HAS TRIED TO CONTEND THAT HE WAS ELIGIBLE FOR THE BENEF IT OF FIRST PROVISO TO SECTION 201(1) OF THE ACT. TO AVAIL THE BENEFIT OF PROVISO TO SECTION 201(1), IT WAS A NECESSITY ON THE PART OF THE ASSESSEE TO FURNISH A CERTIFICATE THAT M/S. HDB FINANCE CO. HAS FURNISHED ITS RETURN OF INCOME UNDE R SECTION 139, HAS TAKEN INTO ACCOUNT SUCH SUM FOR COMPUTING INCOME IN SUCH RETUR N OF INCOME AND HAS PAID THE TAX DUE ON THE INCOME DECLARED BY IT IN SUCH RE TURN OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO FURNISH NECESSARY CERTIFICATE WHICH HE HAS FAILED TO DO SO. ACCORDING LY, DISALLOWANCE U/S 40(A)(IA) OF THE ACT WAS MADE TO THE EXTENT OF RS.94,918/- AND T HE SAME WAS ADDED TO THE TAXABLE INCOME OF THE ASSESSEE. 5.3.1 THE APPELLANT HAS FURNISHED THE CERTIFICATE AS ADDI TIONAL EVIDENCE DURING THE APPEAL PROCEEDINGS. A PERUSAL OF THE ORDER OF T HE A.O SHOWS THAT MORE THAN 2 MONTHS WERE GIVEN BY THE A.O TO FURNISH THE EVIDENC E DURING THE ASSESSMENT STAGE BUT THE SAME WAS NOT AVAILED . HENCE THE ADDITIONAL EVIDENCE CANNOT BE ADMITTED AT THIS STAGE. EVEN ON MERITS , THE REQUIREMENT OF THE ABOVE CERTIFICATE IS NOT A MERE FORMALITY . THE APPELLANT HAS MADE OUT NO CASE FOR ADMISSION OF ADDITIONAL EVIDENCE OR PLACED ANYTHING ON RECORD TO SUGGEST TH AT THE EFFORTS WERE MADE TO PRODUCE THE DESIRED CERTIFICATE AT THE ASSESSMENT S TAGE AND THE FAILURE TO PRODUCE THE ITA-1542/CHD/2018 A.Y. 2013-14 PAGE 3 OF 4 SAME WAS FOR REASONS BEYOND ITS CONTROL. ACCORDINGLY, TH IS GROUND OF APPEAL OF THE APPELLANT IS DISMISSED. (EMPHASIS SUPPLIED) 3. BOTH THE PARTIES HAVE BEEN HEARD. 4. THE FACT THAT THE AO IN THE COURSE OF THE HEARIN G PROVIDED ADEQUATE OPPORTUNITY IS NOT IN DISPUTE. THE ASSESS EE AS PER THE ABOVE FINDING, ADMITTEDLY FAILED TO MAKE OUT A CASE AS TO WHY THE EVIDENCE BE ADMITTED. HOWEVER, CONSIDERING THE NATURE OF EVIDENCE SOUGHT TO BE ADMITTED, IT IS SEE N THAT IT WAS NECESSARY AND RELEVANT EVIDENCE FOR DETERMINING THE ISSUE. ACCORDINGLY, IN THE INTERESTS OF SUBSTANTIAL JUSTIC E, IT IS DEEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER FOR VERIFICATION. THE PARTIES WERE REQUIRED TO ADDRESS THEIR ARGUMENTS AS TO WHICH FORUM THE ISSUE BE REMANDED. THE LD. CIT-DR STATED THAT IT IS FRESH EVIDENCE WHICH NEED S TO BE VERIFIED, HENCE IT MAY BE REMANDED TO THE AO. THE LD. AR ALSO RE-ITERATED A SIMILAR PRAYER. ACCORDINGLY, IN THE LIGHT OF THE PRAYER OF THE PARTIES BEFORE THE BENCH THE ISSUE IS REMANDED BACK TO THE AO TO VERIFY THE CONTENT OF THE ASSESSE ES CLAIM AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. S AID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEA RING ITSELF. ITA-1542/CHD/2018 A.Y. 2013-14 PAGE 4 OF 4 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST,2019. SD/- !', ( DIVA SINGH) # $ / JUDICIAL MEMBER AG/POONAM &) *+ ,+/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' -/ CIT 4. ' - ()/ THE CIT(A) 5. +01 2, $ 2, 45617/ DR, ITAT, CHANDIGARH 6. 16 8#/ GUARD FILE &) ' / BY ORDER, 9 ! / ASSISTANT REGISTRAR