The Income Tax Officer (TDS), Bareilly V. Food Corporation of India, Sitapur

ITA 174/LKW/2014

• Counselvise Citation: 17423714 RSA 2014
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 18-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: R N SHUKLA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 17 4 / LKW / 2014 ASSESSMENT YEAR: 200 7 - 0 8 INCOME TAX OFFICER (TDS) BAREILLY V. FOOD CORPORAT ION OF INDIA DISTRICT OFFICE 140 - B, LOHAR BAGH, SITAPUR PAN: /TAN: LKN I05132B (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ALOK MITRA, D.R. RESPONDENT BY: SHRI. R. N. SHUKLA, ADVOCATE DATE OF HEARING: 11 09 2014 DATE OF PRONOUNCEMENT: 14 10 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON VARIOUS GROUNDS WHICH ARE AS UNDER: - 1 . THE LD. CIT (APPEAL), BAREILLY HAS ERRED IN FACTS AND LAW BY ACCEPTING NEW EVIDENCE FROM THE DEDUCTOR WITHOUT ALLOWING REASONABLE OPPORTUNITY TO THE AO IN TERMS OF RULE 46A (3) OF THE I . T RULES , 1 962. THE DEDUCTOR SUBMITTED BEFORE THE CIT (A) THAT HE HAS DEDUCTED AND PAID THE DUE TAX AND THAT SHORT DEDUCTION/ NON - PAYMENT IS DUE TO MISMATCH. T HIS FACT WAS NOT NEITHER PRODUCED BEFORE THE AO NOR IT WAS REFLECTED ON THE ITD SYSTEM WHEN THIS ORDER U/S 201(1)/201(1A) WAS PASSED. THE CIT (A) HAS ERRONEOUSLY ACCEPTED THE CLAIM OF ASSESSEE AND DIRECTED THE AO TO VERIFY THE CLAIM BY CALLING FOR NECESSARY DOCUMENTS FOR REQUIRED VERIFICATION AND REVISE THE ORDER ACCORDINGLY AND CHARGE INTEREST ON LATE DEPOSIT IF ANY. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : 2 . THE LD. CIT (A) HAS ERRED IN DIRECTING THE AO TO CALL FOR NECESSARY DOCUMENTS FOR REQUIRED VERIFICATION AND REVISE THE ORDER ACCORDINGLY. THE PROCESSING OF TDS STATEMENTS ARE FULLY CENTRALIZED AT CPC (TDS) VAISHALI GHAZIABAD AND THE AO HAS NO POWER TO REVISE THE ORDER. THE ONLY REMEDY FOR THE DEDUCTOR IS TO FILE CORRECTION STATEMENTS ON - LINE AND GET THE DEMAND REDUCED THROUGH CPC(TDS). 3 . THE CIT(A ) BEING A QUASI - JUDICIAL BODY HAS ERRED FURTHER IN DIRECTING THE AO(TDS) TO CARRY OUT RECTIFICATIONS WITHOUT UNDERSTANDING THE PROCESS OF RECTIFICATION/CORRECTIONS LAID DOWN BY CPC(TDS). NO PROOF HAS BEEN SUBMITTED BY THE DEDUCTOR BEFORE THE CIT(A) TO SHOW THAT THE NECESSARY CORRECTION STATEMENTS HAVE BEEN FILED WITH CPC(TDS). BEING A PERSON FROM THE DEPARTMENT, THE CIT(A) IS REQUIRED TO UNDERSTAND ACTUAL PROCESSES LAID DOWN BY THE DEPARTMENT AND WHETHER DIRECTIONS ISSUED BY HIM OR EXECUTABLE OR NOT. 4 . BY DOI NG SO IN 1,2,3 ABOVE, THE CIT(A) HAS MECHANICALLY DISPOSED OFF THE APPEAL, WHILE NO IMPLEMENTATION OF HIS DIRECTIONS ARE POSSIBLE AT A.O. (TDS) END. IN CASE OF MISMATCH, THE REMEDY LIES IN FILING OF CORRECTION STATEMENT WHICH ARE AUTOMATICALLY PROCESSED BY THE CPC (TDS). TILL CORRECTION STATEMENT IS PROCESSED, THE AO(TDS) ORDER STANDS, AND MAY NOT BE CANCELLED. 2 . THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAS FILED ITS E - TDS RETURN IN FORM NO.2 6 Q FOR THE FOURTH QUARTER OF THE FINANCIAL YEAR 200 6 - 0 7 ON 24.7.200 7 . THE INCOME TAX OFFICER (TDS) HELD THE ASSESSEE TO BE IN DEFAULT AND DETERMINED A DEMAND OF RS. 4,54,230 / - AND INTEREST UNDER SECTION 201(1A) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') AT RS. 2,05,330 / - , RESULTING INTO A TOTAL DEMA ND OF RS. 6,59,560 / - . PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : 3 . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE ASSESSEE IS A CENTRAL GOVERNMENT UNDERTAKING ENGAGED IN THE WORK OF FOOD GRAIN PROCUREMENT AND DISTRIBUTION WITHOUT ANY PROFIT MOTIVE AND TILL THE DATE OF FILING OF THE APPEAL , THE ASSESSEE WAS UNABLE TO RECTIFY THE DATA, AS THE FILED FVU FILES WERE NOT AVAILABLE TO DOWNLOAD FROM NSDL, THUS CANT BE RECTIFIED. IT WAS FURTHER CONTENDED THAT NOW WHEN THESE FILES ARE AVAILABLE IN CONSOLIDATED MODE TO FILE CORRECTION STATEMENTS, ASSESSEE SUBMITTED THE CORRECTION STATEMENT ALONG WITH THE RECTIFIED DATA TO ERASE THE DEFAULTS AND DISPOSE OF THE LIABILITIES AND THE RETURN FILED IN FORM NO.26Q FOR FOURTH QUARTER OF ASSESSMENT YEAR 2007 - 08 HAS BEEN RECTIFIED VIA P ROVISION RECEIPT NO.061160100029770 DATED 1.12.2012 . 4 . HAVING CAREFULLY EXAMINED THE SUBMISSIONS OF THE ASSESSEE, THE LD. CIT(A) RESTORED THE MATTER TO THE FILE OF THE INCOME TAX OFFICER (TDS) WITH A DIRECTION TO VERIFY THESE DOCUMENTS AND REVISE THE ORDER A CCORDINGLY. 5 . AGGRIEVED, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT RECTIFICATION CANNOT BE DONE BY THE INCOME TAX OFFICER (TDS), AS IT CAN ONLY BE PERMITTED TO BE DONE BY THE ASSESSEE. THEREFORE, NO FRUITFUL PURPOSE WO ULD BE SERVED BY SENDING THE MATTER TO THE INCOME TAX OFFICER (TDS) FOR DOING NECESSARY CORRECTION/RECTIFICATION IN THE RETURN. 6 . IN RESPONSE THERETO, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT EVEN IF ANY MISTAKE IS THERE IN FILING OF THE RETURN, T HE SAME CANNOT BE CORRECTED BY FILING CORRECTION STATEMENT ONLINE BY NOW BECAUSE THE DEPARTMENTAL SITE ( WWW.TDSCPC.GOV.IN ) WHERE TDS RETURNS ARE UPLOADED PERMITS FOR THE CORRECTION OF E - TDS RETURNS FOR THE FINANCIAL YEAR 2008 - 09 ONWARDS; WHEREAS THE CASE OF THE ASSESSEE RELATES TO FINANCIAL YEAR 200 5 - 0 6 . THEREFORE, RECTIFICATION IS NOT POSSIBLE ON THE PART OF THE ASSESSEE. IT PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : CAN ONLY BE DONE BY THE INCOME TAX OFFICER (TDS) OR THE OTHER CONCERNED OFFICER OF THE DEP ARTMENT. 7 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS, WE FIND THAT THE E - TDS RETURNS ARE BEING FILED ONLINE AND IF ANY ERROR OR MISTAKES ARE THERE, IT CAN BE CORRECTED BY FILING OR UPLOADING THE CORRECT E - TDS RETURN, BUT ACCORDING TO T HE ASSESSEE, THESE FACILITIES ARE AVAILABLE ONLY IN THE FINANCIAL YEAR 2008 - 09 ONWARDS AND NOT PRIOR TO THAT. THESE FACTS WERE VERIFIED FROM THE LD. D.R. DURING THE COURSE OF HEARING AND THE SAME WERE NOT DISPUTED BY THE REVENUE. IF THERE IS ANY ERROR IN FILING THE E - TDS AND THE ASSESSEE IS NOT ABLE TO CORRECT THE SAME BY FILING THE CORRECTED E - TDS RETURN, NECESSARY CORRECTION CAN ONLY BE DONE BY THE DEPARTMENT. THE PROCESS FOR E - FILING OF TDS RETURN WAS DEVELOPED BY THE DEPARTMENT AND THEY ARE SOLELY RE SPONSIBLE FOR DEVELOPING THE SOFTWARE AND ALSO TO MAKE SOME ARRANGEMENT WHERE CORRECTION, IF ANY, IN THE ORIGINAL E - TDS RETURN CAN BE POSSIBLE. IF THE ASSESSEE HAS DEDUCTED TDS IN TIME AND DEPOSITED THE SAME WITH THE DEPARTMENT AND ALSO FILED E - TDS RETURN AND IF THERE IS ANY GLITCH ON THE PART OF THE SERVER OF THE DEPARTMENT, WHY THE ASSESSEE SHOULD SUFFER FOR THE FAULT. IT IS FOR THE DEPARTMENT TO MAKE OUT SOME ALTERNATIVE ARRANGEMENT SO THAT CORRECTION CAN BE MADE IN THE E - TDS RETURN AFTER MAKING NECESS ARY VERIFICATION. THE DEPARTMENT CANNOT ESCAPE FROM THE RESPONSIBILITIES OF MAKING NECESSARY CORRECTION IN THE E - TDS RETURN IF IT IS NOT POSSIBLE ON THE PART OF THE ASSESSEE. IF THE DEPARTMENT IS NOT ABLE CORRECT THE E - TDS RETURN FILED BY THE ASSESSEE, A S CONTENDED BY THE LD. D.R., THEN THE DEPARTMENT HAS TO SUFFER THE CONSEQUENCES AND NOT THE ASSESSEE, WHO HAS SINCERELY AND HONESTLY DEDUCTED TDS AND PAID THE SAME IN TIME WITH THE DEPARTMENT. WE, THEREFORE, FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A ) WHO HAS RIGHTLY DIRECTED THE INCOME TAX OFFICER (TDS) FOR MAKING NECESSARY VERIFICATION OF THE DOCUMENTS AND IF THE TDS WERE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : DEDUCTED AND PAID IN TIME, HE MAY REVISE THE ORDER ACCORDINGLY. ACCORDINGLY THIS APPEAL IS DISPOSED OF. 8 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14 TH OCTOBER , 2014 JJ: 1109 COPY FORWARDED TO: 1 . APP ELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )