The State Bank of Patiala, Cheeka Kaithal, Delhi V. ITO (TDS), Haryana

ITA 1752/DEL/2012

• Counselvise Citation: 175220114 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 01-07-2013
• Assessment Year: misc
• Appeal Filed On: 16-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H: NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I. C. SUDHIR, JUDICIAL MEMBER ITA NOS. 1752, 1753/DEL/2012 ASSESSMENT YEARS: 2007- 2008, 2008-09 THE STATE BANK OF PATIALA, CHEEKA KAITHAL VS. ITO (TDS) C/O KAPIL GOEL, ADVOCATE KARNAL, A-1/25, SECTOR 15, ROHINI HARYANA. DELHI 110 085 (PAN AACCS0143D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KAPIL GOE L, ADVOCATE RESPONDENT BY : NONE ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE COMMON FIRST APPELLATE ORDER FOR ALL THE ABOVE THREE ASSESSMENT YEARS HAS BEEN QUESTIONED ON THE FOLLOWING GROUNDS :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT(A) ERRED IN CONFOIRMING THE O RDER OF ITO (TDS) KARNAL BY NOT APPRECIATING THE APPLICABLE PROVISI ONS OF TDS CHAPTER UNDER INCOME TAX ACT, 1961.(I.E. CH. XVII-B) PA RTICULARLY AND INCLUDING SECTION 197A(2) OF THE ACT. 2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, LEARNED CIT (A) ERRED IN CONFORMING THE ORD ER OF ITO(TDS) KARNAL BY FAILING TO APPLY THE CORRECT LAW TO OBTAINI NG FACTUAL MATRIX OF THE MATTER AND THEREBY ERRONEOUSLY AFFIRMING TH E DEMAND RAISED PARTLY. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW LEARNED CIT (A) ERRED IN CONFORMING HE ORDER OF ITO (TDS) KARNAL BY RETUSING TO ADMIT FORM NO. 15G/15H AS SUBMIT TED UNDER RULE 46A (ADDITIONAL EVIDENCE) IN GROSS IGNORANCE OF J URISDICTIONAL P & H HIGH COURT ORDERS. ITA NOS. 1752, 1753/DEL/2012 2 2. THE RELEVANT FACTS ARE THAT DURING THE TDS INSPECTION IT WAS NOTED THAT THE APPELLANT HAS FAILED TO DEDUCT TAXES IN A LARGE NUMBER OF CASES OF INTEREST CREDITED ON FDRS / TDRS, GENERATOR RENT PA YMENT AND AMC PAYMENT MADE TO M/S. PCS TECHNOLOGY LTD.. THE ASSES SEE WAS ISSUED WITH SHOW CAUSE NOTICE BUT THE AO WAS NOT SATISFIED WITH THE CAUSES SHOWN BY THE ASSESSEE ABOUT THE ABOVE LAPSES. THE AO NOTED T HAT THE APPELLANT HAS FAILED TO DEDUCT TAX AT SOURCE ON PAYMENT OF RENT O N MONTH BASIS INSTEAD THEY HAVE DEDUCTED TDS FOR THE WHOLE YEAR AT THE EN D OF THE YEAR I.E. ON 31 ST MARCH. THE APPELLANT FAILED TO FILE QUARTERLY RETU RNS IN FORM NO. 24Q AND 26Q FOR THE FINANCIAL YEARS 2006-07 TO 2008-09 U/S 206 OF THE ACT. THE AO NOTED FURTHER THAT DESPITE SUFFICIENT OPPORTUNIT IES GRANTED TO THE APPELLANT THE APPELLANT FAILED TO PRODUCE THE RELEV ANT COPIES OF FORM NO. 15G/15H FOR VERIFICATION NOR SOUGHT ANY TIME / DATE FOR PRODUCING / SUBMITTING THE SAME. THE AO NOTED THAT THE ASSESSEE HAS MERELY SUBMITTED A LIST OF PERSONS WHEREIN AGAINST THEIR NAMES AMOUN TS HAVE BEEN MARKED BUT ASSESSEE HAS NOT SUBSTANTIATED THE SAME WITH TH E COPIES OF THE RESPECTIVE 15H / 15G FORMS OR ORIGINAL THEREOF FOR VERIFICATION OF THE SAME. THE AO ALSO NOTED THAT THE FORM NOS. 15G/15H AS PER THE LIST WERE NEVER FORWARDED/SUBMITTED TO THE CONCERNED CIT DURING THE RELEVANT FINANCIAL YEARS. THE AO, THEREFORE, DID NOT ALLOW THE BENEFIT OF THE CLAIM OF THE APPELLANT IN ABSENCE OF RECEIPT OF THESE FORMS AND WORKED OUT SHORT DEDUCTION OF TAX AND DEMAND WAS RAISED IN THIS REG ARD FOR THE ASSESSMENT ITA NOS. 1752, 1753/DEL/2012 3 YEARS UNDER CONSIDERATION. THIS ACTION OF THE AO WA S QUESTIONED BEFORE THE LD. CIT(A). THE APPELLANT ALSO MOVED AN APPLICATION TO ADMIT ADDITIONAL GROUND OF APPEAL AND TO ADMIT ADDITIONAL EVIDENCE U NDER RULE 46A OF THE INCOME TAX RULES 1962. THE ADDITIONAL GROUND RAISED WAS THAT THE LD. AO HAS ERRED IN APPRECIATING THE FACT THAT THE FIGURES OF TOTAL INTEREST PAID ON TERM DEPOSIT ARE NOT RELATED TO THE FINANCIAL YEARS AS MENTIONED IN THE ASSESSMENT ORDER. AS SUCH THE ORDER MAY PLEASE BE Q UASHED AND ALLOW THE CREDIT ON THE BASIS OF THE ADDITIONAL EVIDENCES PRO DUCED IN SUPPORT THEREOF. IN THE APPLICATION UNDER RULE 46A THE APPELLANT REQ UESTED FOR ADMISSION OF THE ADDITIONAL EVIDENCE, WHICH WERE THE COPIES OF F ORM NOS. 15G, 15H EXPLAINING THAT THE SAME COULD NOT PRODUCED BEFORE THE AO SINCE THE SAME WERE KEPT IN DUMP RECORD BY THE RECORD KEEPER/DAFTR Y AND WAS NOT TRACEABLE DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. THE LD. CIT(A) CALLED FOR THE COMMENT OF THE AO ON THE ABOVE APPLI CATIONS. THE LD. CIT(A) CONSIDERED THE ADDITIONAL GROUND WITH THIS FINDING THAT IT IS A MISTAKE APPARENT FROM RECORD AND IT CANNOT BE SAID TO BE A GROUND ON WHICH THE ORDER CAN BE QUASHED. HE HOWEVER REJECTED THE REQUE ST OF THE APPELLANT TO ADMIT THE ADDITIONAL EVIDENCE UNDER RULE 46A ON THE BASIS THAT THE REASONS SHOWN FOR NON PRODUCTION OF THESE EVIDENCES DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS NOT SUFFICIENT. ITA NOS. 1752, 1753/DEL/2012 4 3. IN SUPPORT OF GROUND NO. 3 THE LD. AR REIT ERATED THE EXPLANATION SUBMITTED BEFORE THE AUTHORITIES BELOW WITH THIS RE QUEST THAT THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE BE DIRECTED TO BE ALLOWED AND ISSUE MAY BE DECIDED AFRESH IN VIEW OF THOSE EVIDENCE. 4. CONSIDERING THE ABOVE SUBMISSIONS WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT REASON AS EXPLAINED ABOVE WHICH PREV ENTED THE APPELLANT FROM FURNISHING THE ABOVE EVIDENCE DURING THE COURS E OF ASSESSMENT PROCEEDINGS. THESE EVIDENCE I.E. FORM NOS. 15G AND 15H ARE NECESSARY FOR THE CONSIDERATION OF THE ISSUE TO MEET THE END OF J USTICE. UNDER THESE CIRCUMSTANCES WE WHILE SETTING ASIDE THE FIRST APPE LLATE ORDER IN THIS REGARD ALLOW THE APPLICATION FOR ADMISSION OF THE ADDITION AL EVIDENCE AS PRAYED FOR AND REMAND THE MATTER TO THE FILE OF AO TO VERIFY THESE EVIDENCES AND DECIDE THE ISSUE AFRESH ACCORDINGLY AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT. GROUND NO. 3 IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. SINCE THE FATE OF THE OTHER GROUNDS DEPEN DS UPON THE OUTCOME OF THE GROUND NO. 3, THESE GROUNDS ARE ALSO SET ASIDE TO THE FILE OF THE AO TO DECIDE THESE AFRESH IN VIEW OF THE OUTCOME OF GROUN D NO. 3 AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THESE G ROUNDS ARE THUS ALSO ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1752, 1753/DEL/2012 5 IN THE RESULT THE APPEALS ARE ALLOWED FOR STA TISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST, 2013 SD/- SD/- (G.D. AGRAWAL) ( I.C. SUDHIR ) VICE PRESIDENT JUDICIAL MEMBER DATED 8 TH AUGUST, 2013 VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER DEPUTY REGISTRAR, ITAT