Ryatar Sahakari Sakkare Karkhane Niyamit., Hubli V. Income Tax Officer, TDS Ward, Belgaum., Belgaum

ITA 158/PAN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1530 (ITAT-PANAJI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMRITI BHARDWAJ LD
• Assessee Lawyers: PUKALE MANOJ DEVINDER
• Section: 143(3); 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NOS. 1 52 & 1 53 / PNJ/2015 : (A.Y S 200 5 - 0 6 & 2006 - 07 ) RYATAR SAHAKARI SAKKARE KARKHANE NIYAMIT, RANNA NAGAR, TIMMAPUR 587 122, MUDHOL TAL., BAGALKOT DIST., KARNATAKA (APPELLANT) PAN : AAAAR0428E VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1, BIJAPUR (RESPONDENT) ITA NO. 154/PNJ/2015 : (A.Y 2008 - 09) RYATAR SAHAKARI SAKKARE KARKHANE NIYAMIT, RANNA NAGAR, TIMMAPUR 587 122, MUDHOL TAL., BAGALKOT DIST., KARNATAKA (APPELLANT) PAN : AAAAR0428E VS. JT. COMMISSIONER OF INCOME TAX, CIRCLE - 1, BIJAPUR (RESPONDENT) ITA NOS. 155 TO 157/PNJ/2015 : (A.YS 2009 - 10 TO 2011 - 12) RYATAR SAHAKARI SAKKARE KARKHANE NIYAMIT, RANNA NAGAR, TIMMAPUR 587 122, MUDHOL TAL., BAGALKOT DIST., KARNATAKA (APPELLANT) PAN : AAAAR0428E VS. INCOME TAX OFFICER, WARD - 1, BAGALKOT (RESPONDENT) ITA NOS. 158 TO 161/PNJ/2015 : (A.YS 2009 - 10 TO 2012 - 13) RYATAR SAHAKARI SAKKARE KARKHANE NIYAMIT, RANNA NAGAR, TIMMAPUR 587 122, MUDHOL TAL., BAGALKOT DIST., KARNATAKA (APPELLANT) PAN : AAAAR0428E VS. INCOME TAX OFFICER, TDS WARD, BELGAUM (RESPONDENT) ASSESSEE BY : PUKALE MANOJ DEVINDER , ADV. REVENUE BY : S MT. SMRITI BHARDWAJ , LD. DR DATE OF HEARING : 0 4 /0 8 /2015 DATE OF PRONOUNCEMENT : 0 4 /0 8 /2015 2 ITA NOS. 152 TO 161/PNJ/2015 O R D E R PER GEORGE MATHAN : 1. ITA NO S . 1 52 /PNJ/2015 TO 157/PNJ/2015 ARE APPEAL S FILED BY THE ASSESSEE AGAINST THE ORDER S OF LD. CIT(A), BELGAUM IN ITA NOS. 498/BGM/2014 - 15, 499/BGM/2014 - 15, 495/BGM/2014 - 15, 502/BGM/2014 - 15, 500/BGM/2014 - 15 AND 501/BGM/2013 - 14, ALL DATED 18.3.2015 FOR THE A.YS 2005 - 06, 2006 - 07, 2008 - 09, 2009 - 10, 2010 - 11 AND 2011 - 12 RESPECTIVELY AGAINST THE DISA LLOWANCE U/S 40(A)(IA) OF THE ACT. 2. ITA NOS. 158/PNJ/2015 TO 161/PNJ/2015 ARE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDERS OF LD. CIT(A), BELGAUM IN ITA NOS. 503/BGM/2014 - 15, 496/BGM/2014 - 15, 497/BGM/2014 - 15 AND 504/BGM/ 2014 - 15, ALL DATED 18.3.2015 FOR THE A.YS 2009 - 10 TO 2012 - 13 RESPECTIVELY AGAINST THE LEVY U/S 201(1) & 201(1A) OF THE ACT. 3. AS ALL THE APPEALS RELATE TO THE SAME ASSESSEE AND ARE RELATING TO THE SAME ISSUES, THE APPEALS ARE DISPOSED OFF BY THIS COMMO N ORDER. SHRI PUKALE MANOJ DEVINDER, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SMT. SMRITI BHARDWAJ, LD. DR REPRESENTED ON BEHALF OF THE REVENUE. 4 . IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY REGISTERED UNDER THE KARNATAKA CO - OPERATIVE SOCIETIES ACT, 1959 CARRYING ON THE ACTIVITY OF MANUFACTURING SUGAR AND ITS BYE - PRODUCTS. IT WAS THE SUBMISSION THAT THE ASSESSMENT CAME TO BE COMPLETED U/S 143(3) WHEREIN VARIOUS ADDITIONS HAD BEEN MADE BY INVOKING THE PROVISIONS O F SEC. 40(A)(IA) OF THE ACT ON ACCOUNT OF NON - DEDUCTION OF TDS. IT WAS THE SUBMISSION THAT ONE OF THE MAIN ISSUES WAS IN 3 ITA NOS. 152 TO 161/PNJ/2015 RESPECT OF NON - DEDUCTION OF TDS U/S 194C IN RESPECT OF PAYMENTS MADE TO THE CANE HARVEST E R S AND CANE TRANSPORTERS. IT WAS THE SUBMISS ION THAT CONSEQUENT TO THE NON - DEDUCTION OF TDS, THE AO HAD ALSO PASSED ORDERS U/S 201(1) & 201(1A) OF THE ACT ON ACCOUNT OF NON - DEDUCTION OF TDS U/S 194C & 194J OF THE ACT. IT WAS THE SUBMISSION THAT THE ASSESSEE HAS MADE PAYMENT TO THE TRANSPORTERS AND HARVEST E RS, CONSULTATION CHARGES AS ALSO TO CONTRACTORS BEFORE THE DUE DATE OF FILING THE RETURN . C ONSEQUENTLY, IN VIEW OF THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF VECTOR SHIPPING SERVICES PVT. LTD. REPORTED IN 38 TAXMANN.COM 77 AND THE CONSEQUENTIAL DISMISSAL OF THE SLP FILED BEFORE THE HON'BLE SUPREME COURT BY THE REVENUE, NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT WAS CALLED FOR. ON A SPECIFIC QUERY FROM THE BENCH AS TO SHOW THAT THERE WAS NO AMOUNT DUE AS ON THE YEAR END, IT WAS SUBMITTED BY THE LD. AR THAT HE WAS NOT CARRYING THE DETAILS. 5. IN REPLY, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LD. CIT(A). THE LD. DR DREW OUR ATTENTION TO PARA 7.2.3 AT PAGE 14 OF THE ORDER OF THE LD. CIT( A) FOR THE A.Y 2005 - 06 TO SUBMIT THAT THE PAYMENTS THOUGH NOW CLAIMED TO BE NOT AS A CONSEQUENCE OF A CONTRACT WERE, IN FACT, PAYMENTS ON THE BASIS OF CONTRACTS WHICH WERE CLEARLY AGREEMENTS ENTERED INTO BY THE ASSESSEE WITH THE VARIOUS CONTRACTORS. IT WA S ALSO THE SUBMISSION THAT THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT NOT BEING JURISDICTIONAL HIGH COUR T DECISION, CONSEQUENTLY THE SAME WAS NOT BINDING ON THE TRIBUNAL. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY, THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF VECTOR SHIPPING SERVICES PVT. LTD. REFERRED TO SUPRA WAS THE SUBJECT MATTER OF A SLP BEFORE THE HON'BLE SUPREME COURT AND THE SAME HAS ALSO BEEN DISMISSED. THOUGH THE HON'BLE ALLAHABAD HIGH COURT DECISION IS NOT A JURISDICTIONAL HIGH COURT DECISION, STILL 4 ITA NOS. 152 TO 161/PNJ/2015 THE SAID DECISION OF THE HON'BLE ALLAHABAD HIGH COURT , AGAINST WHICH THE SLP HAS BEEN DISMISSED BY THE HON'BLE SUPREME COURT , HAS A BINDING PRECEDENCE OVER THIS TRIBUNAL INSOFAR AS IT IS THE ONLY DECISION WHICH HAS BEEN QUOTED BEFORE US AND NO CONTRARY DECISION HAS BEEN QUOTED. FURTHER, AS IT IS NOTICED THAT THE FACTS, IN ITS ENTIRETY, BEING WHETHER THE AMOUNTS HAVE BEEN PAID BEFORE THE YEAR END HAS NOT BEEN PROVED BEFORE US, IN THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ASSESSMENT ORDERS ARE LIABLE TO BE SET ASIDE AND ALL THE ISSUES ARE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION IN RESPECT OF THE DISALLOWANCE MADE BY INVOKING THE PROVISIONS OF SEC. 40(A)(IA) OF THE ACT. THE ASSESSEE SHALL PROVE BEF ORE THE AO THAT THERE IS NO AMOUNT LEFT PAYABLE AS ON THE YEAR END AND THAT ALL THE AMOUNTS CLAIMED, ON WHICH THE PROVISIONS OF TDS U/S 194C AND 194J HAS BEEN INVOKED, HAVE BEEN FULLY PAID BY THE YEAR END . IF THE ASSESSEE IS ABLE TO PROVE BEFORE THE AO TH AT THERE IS NO OUTSTANDING AND ALL THE AMOUNTS HAVE BEEN FULLY PAID, THEN, IN VIEW OF THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF VECTOR SHIPPING REFERRED TO SUPRA , AGAINST WHICH THE HON'BLE SUPREME COURT HAS DISMISSED THE SLP VIDE ORDE R DT. 2.7.2014, THE AO SHALL NOT INVOKE THE PROVISIONS OF SEC. 40(A)(IA) ON SUCH AMOUNT S . HOWEVER, IF ANY AMOUNT IS FOUND TO BE PAYABLE AS ON THE YEAR END, THE DISALLOWANCE MADE BY THE AO SHALL STAND CONFIRMED. 7. IN REGARD TO THE LEVY U/S 201(1) & 201 (1A) OF THE ACT, THE ISSUES ARE RESTORED TO THE FILE OF THE AO FOR VERIFICATION AS TO WHETHER THE RECIPIENTS HAVE OFFERED THE RECEIPTS FOR TAX SUBJECT TO THE CONDITION THAT THEY ARE LIABLE TO INCOME TAX, THE DETAILS OF WHICH SHALL BE FURNISHED BY THE ASSES SEE. FAILURE ON THE PART OF THE ASSESSEE SHALL LEAD TO CONFIRMATION OF THE LEVY MADE BY THE AO. IN THE CIRCUMSTANCES, THE ISSUES IN THESE APPEALS ARE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO S UBSTANTIATE ITS CASE. 5 ITA NOS. 152 TO 161/PNJ/2015 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04 /0 8 /2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 04 /0 8 / 201 5 *SSL* COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 6 ITA NOS. 152 TO 161/PNJ/2015 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 04 /0 8 /2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 04/08/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 0 5 /08/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 0 5 /08/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 5 /08/2015 SR.PS 6. DATE OF PRONOUNCEMENT 04/08/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 0 5 /08/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER