Bhruhat Bengaluru Mahanagara Palike, Bangalore V. Income tax Officer (TDS), Ward- 16(1), Bangalore

ITA 1567/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0120 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 01-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K N DHANDA
• Assessee Lawyers: V CHANRASHEKAR
• Keywords: Condonation of delay; TDS
• Section: 201(1); 250; 194LA; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO S . 1 566 AND 1567 /BANG/20 19 ASSESSMENT YEAR : 2012-13 CHIEF ACCOUNTS OFFICER, BHRUHAT BENGALURU MAHANAGARA PALIKE [BBMP], N. R. SQUARE, BENGALURU 560 002. PAN : AAALB 1608 F VS. THE INCOME-TAX OFFICER (TDS), WARD 16(1), 4 TH FLOOR, HMT BHAVAN, BELLARY ROAD, BENGALURU 560 032. APPELLANT RESPONDENT ASSESSEE BY : SHRI. V. CHANRASHEKAR , ADVOCATE REVENUE BY : SHRI. K. N. DHANDAPANI , ADDL. CIT (DR)(ITAT), BENGALURU DATE OF HEARING : 1 8 . 0 6 .20 20 DATE OF PRONOUNCEMENT : 26 . 0 6 .20 20 O R D E R PER BENCH BOTH THESE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST A COMBINED ORDER OF LEARNED CIT(A)-13 BENGALURU DATED 26.03.2019 FOR ASSESSMENT YEAR 2012-13 IN RESPECT OF DEMAND RAISED BY THE AO OF RS.2,18,87,259/- AND OF RS.63,25,351/- UNDER SECTIONS 201(1) AND 201(1A) RESPECTIVELY OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THESE APPEALS ARE FILED BY THE ASSESSEE AFTER A DELAY OF 31 DAYS. THE ASSESSEE MOVED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN ITA NOS. 1566 AND 1567/BANG/2019 PAGE 2 OF 4 AFFIDAVIT. IN THE SAID APPLICATION, IT IS SUBMITTED BY THE ASSESSEE THAT AFTER THE IMPUGNED ORDER UNDER SECTION 201(1) AND 201(1A) OF THE ACT WAS PASSED BY THE AO ON 25.03.2014, THE LEARNED CIT(TDS) PASSED AN ORDER UNDER SECTION 263 OF THE ACT ON 29.09.2014 IN WHICH IT WAS HELD BY HIM THAT AO HAS NOT INCLUDED THE VALUE OF DEVELOPMENT RIGHTS CERTIFICATE (DRCS) ISSUED ON 08.06.2000 WHILE PASSING THE ORIGINAL ORDER UNDER SECTION 201(1) AND 201(1A) OF THE ACT ON 25.05.2014 AND IN THIS ORDER PASSED BY CIT UNDER SECTION 263, HE DIRECTED THE AO TO INCLUDE THE VALUE OF DRCS ISSUED ON 08.06.2000. ACCORDINGLY, THE AO PASSED ORDER UNDER SECTION 201(1) R.W.S. 263 OF THE ACT ON 17.03.2015 RAISING A DEMAND OF RS.22,93,34,130/- AND THE CONSEQUENT INTEREST ORDER UNDER SECTION 201(1A) R.W.S 263 OF RS.9,84,98,057/-. AGAINST THE ORIGINAL ORDERS PASSED BY THE AO UNDER SECTION 201(1) AND UNDER SECTION 201(1A) OF THE IT ACT ON 25.03.2014, APPEALS WERE FILED BY THE ASSESSEE BEFORE LEARNED CIT(A) AND THE SAID APPEALS WERE DISPOSED OF BY LEARNED CIT(A) UNDER SECTION 250 OF THE ACT AND THE ORDER WAS DATED 26.03.2019 AND THIS ORDER OF CIT(A) WAS RECEIVED BY THE ASSESSEE ON 02.04.2019. THEREAFTER, THE ASSESSEE APPROACHED THE AUDITOR OF THE ASSESSEE COMPANY FOR ADVICE AND HE WAS OF THE OPINION THAT THE APPELLANT CANNOT CHALLENGE THE ORIGINAL ORDERS PASSED BY THE AO AS THE ORIGINAL ORDERS IS A SUBJECT MATTER OF REVISION UNDER SECTION 263 AND THE CONSEQUENT ORDERS WERE PASSED UNDER SECTION 201(1) AND 201(1A) OF THE ACT R.W.S 263 ON 17.03.2015 AND THEREFORE, THE ASSESSEE DID NOT FILE ANY APPEAL BEFORE THE TRIBUNAL AGAINST THIS ORDER OF LEARNED CIT(A) DATED 26.03.2019 BUT SUBSEQUENTLY, THE ASSESSEE GOT ADVICE FROM A DIFFERENT COUNSEL SHRI. CHANDRASHEKAR, ADVOCATE THAT HE ASSESSEE SHOULD HAVE FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THIS ORDER OF THE LEARNED CIT(A) ALSO AND AFTER HIS ADVICE, THE PRESENT APPEAL WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL AND FOR THESE REASONS, THERE WAS A DELAY OF 31 DAYS WHICH SHOULD BE ITA NOS. 1566 AND 1567/BANG/2019 PAGE 3 OF 4 CONDONED IN THE INTEREST OF JUSTICE. CONSIDERING THESE FACTS, WE CONDONE THE DELAY IN FILING THE PRESENT APPEALS BEFORE THE TRIBUNAL. 3. REGARDING THE MERIT OF THE APPEALS, IT WAS SUBMITTED BY LEARNED AR OF THE ASSESSEE THAT AS PER THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT DATED 29.09.2016 IN ASSESSEES OWN CASE, IT WAS HELD THAT AS PER THE PROVISIONS OF SECTION 194LA OF THE ACT, TDS HAS TO BE DEDUCTED WHEN THERE IS A PAYMENT MADE BY THE ASSESSEE BY CASH, CHEQUE, DD OR ANY OTHER SIMILAR MODE BUT WHEN NO PAYMENT IS MADE BY BBMP UNDER ANY SUCH MODE TO THE LAND OWNERS IN TERMS OF MONEY, SUCH DEDUCTION IS NEITHER POSSIBLE NOR CONCEIVED UNDER SECTION 194LA OF THE ACT. HE SUBMITTED THAT IN THE PRESENT CASE ALSO, DEMAND HAS BEEN RAISED BY THE AO UNDER SECTION 201(1) ON THIS BASIS THAT THE ASSESSEE WAS REQUIRED TO DEDUCT TDS UNDER SECTION 194LA OF THE ACT IN RESPECT OF VALUE OF DRCS ISSUED FOR THE YEAR 2009-10 OF RS.21,88,72,594/- AND BY APPLYING THE RATE OF 10%, DEMAND UNDER SECTION 201(1) WAS RAISED OF RS.2,18,87,259/- AND CONSEQUENT INTEREST WAS ALSO DEMANDED UNDER SECTION 201(1A) OF THE ACT TO THE EXTENT OF RS.63,25,351/-. HE SUBMITTED THAT THIS DEMAND IS ALSO RAISED BY THE AO ON THE BASIS OF VALUE OF DRCS ISSUED BY THE ASSESSEE AND NOT IN RESPECT OF ANY PAYMENT MADE BY THE ASSESSEE BY WAY OF CASH, CHEQUE, DD OR ANY OTHER SIMILAR MODE AND THEREFORE, THESE DEMANDS RAISED BY THE AO ARE NOT MAINTAINABLE AS PER THIS JUDGMENT OF HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF ASSESSEE. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER THE ORDER PASSED BY THE AO UNDER SECTION 201(1) AND 201(1A) OF THE ACT ON 25.03.2014, DEMAND HAS BEEN RAISED UNDER SECTION 194LA OF THE ACT @ 10% OF THE VALUE OF DRCS ISSUED BY THE ASSESSEE FOR THE YEAR 2009-10 AND THERE IS NO SUCH ALLEGATION BY THE AO THAT ANY PAYMENT WAS MADE BY THE AO BY WAY ITA NOS. 1566 AND 1567/BANG/2019 PAGE 4 OF 4 OF CASH, CHEQUE, DD OR ANY OTHER SIMILAR MODE. HENCE, RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE KARNATAKA HIGH COURT RENDERED IN THE ASSESSEES OWN CASE, WE HOLD THAT SUCH DEMANDS RAISED BY THE AO UNDER SECTION 201(1) AND CONSEQUENT DEMAND OF INTEREST UNDER SECTION 201(1A) OF THE ACT ARE NOT MAINTAINABLE AND WE DELETE BOTH THESE DEMANDS. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED: 26 TH JUNE, 2020. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.