BULDANA URBAN CO-OP CREDIT SOCIETY LTD.AND NATIONAL BUILDING CONSTRAUCTION (J.V). , Buldhana V. INCOME TAX OFFICER TDS WARD 1(2), AKOLA

ITA 164/NAG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5485 (ITAT-NAGPUR)
• Duration Of Justice: 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P R GANDHI
• Keywords: Principle of natural justice; Condonation of delay
• Section: 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI JAS ON P BOAZ , HONBLE ACCOUNTANT MEMBER AND SHRI SA N DEE P GOSAIN , HONBLE JUDICIAL MEMBER ITA NO. 176 /NAG / 2015 & ITA NO.164 166/NAG/2018 ASSESSMENT YEAR S : 2009 10 TO 2012 13 BULDANA URBAN CO OP CREDIT SOCIETY LTD & NATIONAL BUILDING CONSTRUCTION (JV) HUTATMA, GORE PATH , BULDANA [ PAN NO.AAABB 0753 D ] / V/S . INCOME TAX OFFICER, WARD 1(2), TDS, AKOLA / APPELLANT .. / RESPONDENT / BY APPELLANT SHRI P.R. GANDHI, AR / BY RESPONDENT SHRI GITESH KUMAR, SR DR / DATE OF HEARING 11 07 2018 / DATE OF PRONOUNCEMENT 13 07 2018 / O R D E R PER BENCH : - TH E S E PRESENT FOUR APPEAL S BY THE ASSESSEE ARE AGAINST THE COMMON ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - I I, NAGPUR DATED 04 .0 3 .201 5 FOR ASSESSMENT YEAR S 200 9 - 1 0 TO 2012 13 RESPECTIVELY. 2. SINCE ALL THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON THEREFORE THEY HAVE BEEN CLUBBED, HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. FIRST OF ALL WE TAKE UP ASSESSEES APPEAL IN ITA ITA N O.176/NAG/15 & 164 166/NAG/18 A.YS. 09 10 TO 12 13 BULANDA URBAN CO OP CREDIT SO. LTD & NBC (JV) V/S. ITO, WD 1(2) AKOLA PAGE 2 NO.176/NAG/2015 FOR AY 2009 - 10. THE GROUNDS OF APPEAL ARE MENTIONED HEREINBELOW: 1. NO SUFFICIENT OPPORTUNITY IS GIVEN TO THE ASSESSEE. 2. ORDER BASED ON STATEMENT RECORDED ON SURVEY IS NOT LEGAL. 3. THE AOP CANNOT COLLECT TCS FROM ITS MEMBER. 4. THE DEBT, WHO WAS IN KNOW, OF T HE FACT SHOULD HAVE A SKED ASSESSEE TO PAY TCS. DURING THE COURSE OF SURVEY ITSELF. 5. AO HAD NOT VERIFIED FACT THAT ASSESSEE HAD PAID NECESSARY TAXES ON INCOME COVERING RECEIPTS OF TOLL MONEY. 6. ASSESS ON WHOM ORDER IS SERVED IS NOT THE PERSON IN WHOS E NAME ORDER IS PASSED. THIS IS MATERIAL IRREGULARITY. ANY OTHER GROUND COMING DURING THE COURSE OF HEARING. ORDER PASSED UNDER SECTION 206C(IC) R.W.S. 206C(6) AND SEC 206C(7) FOR FY 08 09 TO 11 12 BE CANCELLED. 3. THE BRIEF FACTS OF THE CASE ARE TH A T ASSESSEE BEING CONTRACTOR AOP BY THE NAME OF M/S BULDHANA URBAN CREDIT COOP. SOCIETY LTD. AND NATIONAL BUILDING CONSTRUCTION JV, BULDHANA (HENCEFORTH REFERRED TO AS JV). IT WAS NOTED THAT THE APPELLAN T IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND HAD ENT ERED INTO A TOLL CONTR \ ACT WITH THE EXECUTIVE ENGINEER, PWWD, BULDHANA ON BUILT OPERATE AND TRANSFER (BOT BASIS) FOR UNDERTAKING THE WORK OF TWO LANING OF MALKAPUR BULDHANA CHIKHALI ROAD IN BULDHANA DISTRICT. IT WAS FURTHER NOTED THAT THE JV HAD FURTHER EN TERED INTO A TOLL CONTRACT WITH THE CONTRACTOR FIRM M/S JV KULKARNI AND FRIENDS ASSOCIATES FOR COLLECTION OF TOLL AND IT WAS NOTED THAT THE APPROPRIATE T AX C OLLECTION AT S OURCE (TCS FOR SHORT) AS PER THE REQUIREMENT OF INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) HAD NOT BEEN MADE BY THE ASSESSEE FROM THE SAID CONTRACTOR OF TOLL PLAZA. THE ASSESSING OFFICER NOTOD THAT THE ASSESSEE HAD NOT COLLECTED THE TCS FROM JV KULKARNI AND FRIENDS ASSOCIATES WHILE DEBITING THEIR ACCOUNT WITH THE AMOUNTS P AYABLE BY THEM FOR THE CONTRACT/RENT TRANSFERRED AT THE TIME OF RECEIPT OF AMOUNTS SO PAYABLE. THEREFORE ON THE BASIS OF ABOVE FACTS, THE AO CAME TO CONCLUSION THAT ASSESSEE HAD COMMITTED THE SAID DEFAULT, HENCE, ASSESSEE WAS FOUND LIABLE TO PAY TCS U/S20 6C(1C) R.WS 206C(6) AND 206C(7) OF THE ACT AS UNDER: SL NO F.Y TCS U/S 206C(1C) RWS 206(C) INTEREST UNDER SECTION. 206C(7) TOTAL DEMAND 1 08 09 (AS PER 393700/ 3937/ 397637/ ITA N O.176/NAG/15 & 164 166/NAG/18 A.YS. 09 10 TO 12 13 BULANDA URBAN CO OP CREDIT SO. LTD & NBC (JV) V/S. ITO, WD 1(2) AKOLA PAGE 3 ANNEXURE 1) 2 09 10 (AS PER ANNEXURE II) 817140/ 369846/ 11886986/ 3 10 111 (AS PER ANNEXURE III) 1068700/ 10687/ 1079387/ 4 11 12 (AS PER ANNEXURE IV) 807640/ 187824/ 995464/ TOTAL 3087180/ 572294/ 36959474/ 4. AGGRIEVED BY THIS ASSESSEE FILED APPEAL BEFORE LD. CIT(A) AND SUBMITTED THAT ASSESSEE WAS AN AOP AND WORK OF COLLECTION OF TOLL HAD GIVEN TO ONE OF THE MEMBER OF AOP AND THAT SINCE IN THE CASE OF AOP, A MEMBER THEREOF IS NOT ANOTHER PERSON AND THEREFORE THERE WAS NO DEFAULT IN NOT MAKING TCS AND IN SUPPORT OF ASSESSEES ARGUMENTS, LD. AR RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE M/S HINDUSTAN COC A COL A B E VERAGE PVT. LTD. V/S. CIT (2007) 293 ITR 226 (SC). THE LEARNED CIT(A) ON THE BASIS OF SUBMISSION FILED BY THE ASSESSEE SO UGHT REMAND REPORT FROM THE AO AND THE AO VIDE LETTER DATED 01.01.2015 ADDRESSED THE VARIOUS ISSUES RAISED BY THE ASSESSEE. WHILE RELYING UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD. (SUPRA) AND THE REL EVANT PORTION IS REPRODUCED HEREUNDER: THE ORDER WAS SERVED ON DTD 11.12.2014 AND FURTHER THE AOP HAS FURNISHED THE LEDGER ACCOUNTS OF THE TOLL CONTRACT CONTRACTOR M/S J.V. KULKARNI & FRIEND ASSOCIATES, THE CONTRACTOR HAS PAID THE TO RECEIPTS TO THE AOP AND THE AOP HAS OFFERED THE TOLL RECEIPTS, THE SAME HAS BEEN FURNISHED BY THE APPELLANT ON 25.10.2013. THE SAME H A S BEEN PERUSED AND IT IS FOUND THAT TOLL R E CEIPTS HAS BEEN DISCLOSED BY THE AOP IN THE R E TURN FIELD BY THEM FOR FY 2008 09 TO 2011 12, COPY OF WHICH HAS BEEN SUBMITTED BY THEM TO THIS OFFICE. LEDGER COPIES OF TOLL ACCOUNT FOR FY 2008 09 TO 2011 12 HAS BEEN CALLED FOR AND EXAMINED AND IT IS FOUND THAT TOLL RECEIPT HAS BEEN DISCLOSED BY THE AOP DEDUCTOR AND THE SAME HAS BEEN FRESHLY COMPUTED BY EX AMINING THE BOOKS OF ACCO UNTS, LEDGER OF THE CONTRA CTOR M/S JV KULKARNI 7 FRIENDS ASSOCIATES. THUS, A FRESH COMPUTATION IS MADE. I IS TO SUBMIT THAT SINCE THE AOP HAS DISCLOSED THE TOLL RECEIPTS FOR FY 2008 09 TO FY 2011 132 AND FILED THE RETURN OF INCOME AND PAID THE TAXES, HENCE DEFAULT COMMITTED BY WAY OF NON TCS UNDER SECTION. 206C(1C) R.W.S. 206C(6) IS TO RECTIFIED A ND SI NCE THE TCS ITA N O.176/NAG/15 & 164 166/NAG/18 A.YS. 09 10 TO 12 13 BULANDA URBAN CO OP CREDIT SO. LTD & NBC (JV) V/S. ITO, WD 1(2) AKOLA PAGE 4 IS NOT COLLECTED A T THE TIME OF THE D A TE OF COLLECTIBLE OF TCS, THE INTER E ST UNDER SECTION. 206C(7) IS TO BE CHARGED FROM THE D A TE OF TCS COLLECTIBLE TILL THE D A TE OF FILING OF RETURN BY THE AOP. THE COMPUTATION OF INTER E ST IS AS BELOW MENTIONED TABLE. THE LEARNED CIT(A) ON THE BASIS OF REMAND REPORT AND THE ARGUMENTS OF THE PARTIES HAD RECORDED ITS FINDINGS WHICH ARE CONTAINED IN PARA 6 OF HIS ORDER AND THE SAME IS REPRODUCED BELOW: 6. THUS IT IS EVIDENT THAT THE LD. AO HERSELF HAS ACCEPTED THE CONTENTION OF THE APPELLANT IN THE LIGHT OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE HINDUSTAN COCA COLA BEVER AGES PVT. LTD AND HAS GIVEN A FINDI NG THAT NO DEMAND UNDER SECTION 206C(6) LIES IN THE CASE OF THE APPELLANT AND ONLY DEMAND ON ACCOUNT OF INTEREST UNDER SECTION. 206C(7) IS CHARGEABLE TILL THE DATE OF FILING OF RETURN OF INCOME. IN VIEW OF THE ABOVE CLEAR FINDING OF THE LD. AO, THE DEMAND RAISED UNDER SECTION. 206C(1C) R.W.S 206C(6) OF ` .3087180/ BETWEEN THE YEARS FY 2008 09 T O FY 2011 12 IS HEREBY DELETED. 5 . NOW BEFORE US THE ASSESSEE HAS RAISED A SOLITARY GROUND THEREBY CHALLENGING THE ORDER OF LEARN ED CIT(A) IN HOLDING THAT ONLY DEMAND ON ACCOUNT OF INTEREST U/S 206C(7) OF THE ACT IS CHARGEABLE FROM THE ASSESSEE TILL THE DATE OF FILING OF RETURN OF INCOME. 6 . LD. AR REITERATE D THE SAME ARGUMENTS AS WERE RAISED BEFORE REVENUE AUTHORITIES. ON THE OTHER HAND, LD DR ALSO RELIED UPON THE ORDER S PASSED BY THE REVENUE AUTHORITIES. 7 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WE LL AS JUDGMENT S CITED BY RESPECTIVE PARTIES . IT I S AN UNDISPUTED FACT THAT ASSESSEE IS A MEMBER OF AOP AND CONTRACT FOR COLLECTION OF TOLL WAS ALSO GIVEN TO ITS MEMBER I.E. M/S JV KULKARNI & FRIENDS ASSOCIATES. IT WAS ARGUED BY THE LD. AR THAT THE PROVISIO N WITH REGARD TO CHARGING OF INTEREST U/S 206C(7) WERE INTRODUCED BY THE FINANCE ACT, 2012 AND THUS THE SAME ARE NOT APPLICABLE TO THE EARLIER YEARS. AFTER HAVING GONE THROUGH THE FACTS OF THE CASE AND AFTER HEARING THE PARTIES AT LENGTH , WE FIND THAT UND ISPUTEDLY, THE ITA N O.176/NAG/15 & 164 166/NAG/18 A.YS. 09 10 TO 12 13 BULANDA URBAN CO OP CREDIT SO. LTD & NBC (JV) V/S. ITO, WD 1(2) AKOLA PAGE 5 ASSESSEE IS AN AOP AND THE CONTRACT FOR COLLECTION OF TOLL WAS GIVEN TO ITS MEMBER I.E. M/S JV KULKARNI & FRIENDS A SS OCIATES, BULDHANA. THE LEARNED CIT(A) HAD ALREADY CONCLUDED THAT NO DEMAND U/S 206 C (1C) LIES IN THE CASE OF ASSESSEE . E VEN O THERWISE THE PROVISION OF SEC. 206C(7) OF THE ACT WERE NOT APPLICABLE TO THE EARLIER YEARS CLAUSE OF SECTION 206C(7) OF THE ACT WITH REGARD TO CHARGING OF INTEREST WAS INTRODUCED BY FINANCE ACT, 2012 AND WAS THUS NOT APPLICABLE TO ANY YEARS PRIOR TO THAT. 8. T HE AOP AND ITS MEMBERS ARE NOT SEPARATE ENTITIES, THEREFORE NO TCS WAS REQUIRED TO BE COLLECTED FROM ITS MEMBER. EVEN, IN THE REMAND REPORT, LEARNED CIT(A) HAS ADMITTED THAT ASSESSEE WAS NOT LIABLE TO MAKE TCS U/S 206C(1C) R.W.S 206C(6), THUS THERE W AS NO QUESTION OF CHARGING INTEREST U/S 206C(7) OF THE ACT. MORE PARTICULARLY, THE PROVISO CLAUSE WITH REGARD TO CHARGING OF INTEREST U/S 206C(7) OF THE ACT WAS INTRODUCED BY FINANCE ACT, 2012 AND SINCE THE PRESENT CASE PERTAINS TO AY 2009 - 10. THEREFORE , THE ASSESSEE WAS NOT COVERED UN DER THE SAID PROVISION, HENCE, WA S NOT LIABLE TO PAY INTEREST. WE ORDER ACCORDINGLY AND ALSO THESE GROUNDS RAISED BY THE ASSESSEE. 9 . REMAINING GROUNDS RAISED BY ASSESSEE ARE GENERAL IN NATURE, THEREFORE NEED NO SPECIFIC ADJUDICATION. 10 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. NOW COMING TO REMAINING APPEALS BY ASSESSEE IN ITA NO.164 166/NAG/2018 FOR AYS 10 11 TO 12 13. 11 . 11. AT THE VERY OUTSET, IT WAS NOTICED THAT ALL THE ABOVE THREE APPEALS ARE BARRED BY LIMITATION, HOWEVER, LD. AR HAS DRAWN OUR ATTENTION TO AN APPLICATION FOR SEEKING CONDONATION OF DELAY OF 1126 DAYS IN FILING THE ABOVE APPEALS. 1 2 . WE HAVE HEARD LD. COUNSELS OF BOTH THE PARTIES ON THIS APPLICATION AND WE HAVE ALSO PERUSE D THE RECORDS. AS PER THE CONTENTS OF THE APPLICATION AND AN AFFIDAVIT OF SHRI RAJESH LADDHA, LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ITA N O.176/NAG/15 & 164 166/NAG/18 A.YS. 09 10 TO 12 13 BULANDA URBAN CO OP CREDIT SO. LTD & NBC (JV) V/S. ITO, WD 1(2) AKOLA PAGE 6 COULD NOT PREFERRED APPEALS FOR AYS 2010 11 TO 2012 13 AS THE Y WERE UNDER BONA FIDE BELIEF THAT THE DECISION OF HO NBLE ITAT FOR AY 2009 10 WILL BE EQUALLY APPLICABLE FOR THE OTHER THREE YEARS AS THE FACTS OF THE CASE OF ALL THE FOUR YEARS WERE SAME. THIS PLEA RAISED BY THE ASSESSEE DOES NOT HOLD MUCH WATER AS THE SAME DO NOT CONSTITUTE SUFFICIENT CAUSE FOR NOT FILI NG THE APPEALS WITHIN TIME. 13. BE THAT AS IT MAY, SINCE THE FACTS OF THE ABOVE APPEALS ARE ALSO IDENTICAL OF THE FACTS OF THE APPEAL IN ITA NO.176/NAG/2015 FOR A.Y. 2009 10 AND WE HAVE ALREADY DECIDED THE APPEAL ON MERITS. SO EVEN ON MERITS EVEN OTHERWI SE BEING BASED ON IDENTICAL FACTS, THE ORDER PASSED BY US IN ITA N O.176/NAG/2015 (SUPRA) WOULD EVEN OTHERWISE BE APPLICABLE TO THESE APPEALS. 14. ALTHOUGH ASSESSEE HAS NOT BEEN ABLE TO SUCCESSFULLY DEMONSTRATE BEFORE US ANY SUFFICIENT CAUSE FOR CONDONATION OF DELAY BUT KEEPING IN VIEW THE ABOVE MENTIONED PECULIAR FACTS AND THE PRINCIPLE OF NATURAL JUSTICE, EQU ITY AND FAIR PLAY , WE HEREBY HOLD THAT THIS IS A FIT CASE TO CONDONE THE DELAY . WE ORDER ACCORDINGLY AND ADMIT THESE APPEALS FOR ADJUDICATI ON . 1 5 . NOW WE PROCEED TO DECIDE THE ABOVE APPEALS ON MERITS. SINCE WE HAVE ALREADY ALLOWED ASSESSEES APPEAL IN ITA N O.176/NAG/2015 FOR AY 2009 10 (SUPRA) , THE GROUNDS OF THESE APPEALS ARE ALSO ALLOWED WITH SIMILAR OBSERVATION. 12. IN THE RESULT, ALL TH E APPEALS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 /0 7 /201 8 SD/ SD/ ( ) ( ) ( JASON P. BOAZ ) (S ANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEM BER *DKP - SR.PS - 13 /0 7 /201 8 NAGPUR ITA N O.176/NAG/15 & 164 166/NAG/18 A.YS. 09 10 TO 12 13 BULANDA URBAN CO OP CREDIT SO. LTD & NBC (JV) V/S. ITO, WD 1(2) AKOLA PAGE 7 / COPY OF ORDER FORWARDED TO: - 1 . /APPELLANT BULDANA URBAN CO OP CREDIT SOCIETY LTD. & NATIONAL BUILDING CONSTN. (JV), HUTATMA, GORE PATH, BULDANA 2 . /RESPONDENT INCOME TAX OFFICER WARD 1(2), TDS, AKOLA 3 . / CONCERNED CIT 4 . - / CIT (A) 5 . , / DR, ITAT, NAGPUR 6 . / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, (ON TOUR)