GMR Enterprises Private Limited (Successor to GMR Projects Private Limited), Bangalore V. Assistant Commissioner Of Income Tax, CPC (TDS), Ghaziabad

ITA 1841/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2967 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-03-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 26-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHINI MISHRA
• Assessee Lawyers: JAGADISH K JOGI
• Keywords: TDS; Set aside
• Section: 113; 13

Judgement Text

ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.1841/BANG/2019 ASSESSMENT YEAR: 2009-10 M/S. GMR ENTERPRISES PVT. LTD. (SUCCESSOR TO GMR PROJECTS PVT. LTD.) NO.25/1, SKIP HOUSE, MUSEUM ROAD BENGALURU-560025 PAN NO : AACCG8619E VS. ACIT, CPC(TDS) GHAZIABAD APPELLANT RESPONDENT A PPELLANT BY : SHRI JAGADISH K. JOGI, A.R. RESPONDENT BY : SHRI PRIYADARSHINI MISHRA, D.R. DATE OF HEARING : 12.03.2020 DATE OF PRONOUNCEMENT : 13.03.2020 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER DATED 31.7.2019 PASSED BY LD. CIT(A)-9, BENGA LURU AND IT RELATES TO THE ASSESSMENT YEAR 2009-10. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN CONFIRMING THE INTEREST LEVIED U/S 201(1A) OF THE I NCOME- TAX ACT,1961 ['THE ACT' FOR SHORT] AND CONSEQUENT I NTEREST LEVIED U/S 220(2) OF THE ACT. ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE PAGE 2 OF 7 2. WE HEARD THE PARTIES AND PERUSED THE RECORDS. T HE INTEREST U/S 201(1A) OF THE ACT WAS LEVIED UPON THE ASSESSEE ON THE REASONING THAT THERE WAS DELAY IN DEPOSITING THE TDS. AS PER INCOME TAX RULES, THE DUE DATE FOR REMITTING THE TDS DEDUCTED IN A PARTICULAR MONT H IS 7 TH DAY OF THE SUCCEEDING MONTH. THE LD A.R SUBMITTED THAT THE ASSESSEE HAS DEPOSITED THE CHEQUE TOWARDS REMIT TANCE OF TDS FOR THE MONTH OF AUGUST, 2009 AND SEPTEMBER, 2008 RESPECTIVELY ON 6.9.2008 AND 7.10.2008, BUT THE SAM E WAS REALIZED BY THE BANKER LATE AND HENCE THERE WAS PER CEIVED DELAY OF 2 TO 3 DAYS. THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAS DEPOSITED THE CHEQUE WITHIN THE DUE DA TE PRESCRIBED UNDER INCOME TAX RULES AND HENCE IT CANN OT BE SAID THAT THE ASSESSEE HAS DELAYED IN MAKING THE PA YMENT OF TDS. HE SUBMITTED THAT, AS PER THE CIRCULAR ISS UED BY CBDT, THE DATE OF DEPOSIT OF CHEQUE IS DEEMED TO BE THE DATE OF REMITTANCE OF TDS. ACCORDINGLY, HE SUBMITTE D THAT THERE WAS NO DELAY IN REMITTING THE TDS AMOUNT AND HENCE THE INTEREST LEVIED U/S 201(1A) OF THE ACT AND CONS EQUENT ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE PAGE 3 OF 7 INTEREST LEVIED U/S 220(2) OF THE ACT SHOULD BE DEL ETED. THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION RENDE RED BY THE COORDINATE BENCH IN THE CASE OF MOODYS ANALYTI CS KNOWLEDGE SERVICES (INDIA) (P) LTD. VS. ITO (TDS CIR CLE-2(1) (2020) 113 TAXMANN.COM 448 (BANGALORE TRIB.). 3. ON THE CONTRARY, LD. D.R. SUPPORTED THE ORDER PA SSED BY LD. CIT(A). 4. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE COORDINATE BENCH HAS CONSIDERED THE ISSUE OF DELAY OCCURRED IN REMITTING TDS AMOUNT ON ACCOUNT OF DELAY IN PROCESSING OF PAYMENT IN THE BANKING CHANNEL IN THE CASE OF MOODYS ANALYTIC S KNOWLEDGE SERVICES (INDIA) (P) LTD. (SUPRA). FOR T HE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE ABOVE SAID ORDER: ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE PAGE 4 OF 7 ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE PAGE 5 OF 7 ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE PAGE 6 OF 7 5. IN THE INSTANT CASE, IT IS THE SUBMISSION OF THE ASSESSEE THAT IT HAS DEPOSITED CHEQUES INTO THE BAN K ACCOUNT WITHIN THE DUE DATE, BUT THE SAME WAS REALI ZED LATER. THE CIRCULAR NO.261 DATED 8.8.1979 ISSUED B Y CBDT MAKES IT CLEAR THAT THE DATE OF PRESENTATION OF THE CHEQUE SHALL BE DEEMED TO BE THE DATE OF PAYMENT. THE DEC ISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF K.SARASWATHY VS. P.S.S. SOMASUNDARAM CHETTIAR (1989 )(4 SCC 527) ALSO SUPPORTS THE CASE OF THE ASSESSEE. I N THE ABOVE SAID CASE, THE HON'BLE SUPREME COURT, AFTER CONSIDERING THE PROVISIONS OF SEC.10 AND 82 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881, HAS HELD THAT THE PAYMENT BY CHEQUE SHOULD BE TAKEN TO BE DUE PAYMENT IF CHEQUE IS ENCASHED SUBSEQUENTLY IN THE ORDINARY COU RSE. WE NOTICE THAT THE LD CIT(A) HAS NOT CONSIDERED THE ABOVE SAID DECISION RENDERED BY HON'BLE SUPREME COURT. ITA NO.1841/BANG/2019 M/S. GMR ENTERPRISES PVT. LTD., BANGALORE PAGE 7 OF 7 6. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THA T THE INTEREST LEVIED UPON THE ASSESSEE U/S 201(1A) OF THE ACT AND THE CONSEQUENTIAL INTEREST LEVIED U/S 220(2) OF THE ACT IS NOT JUSTIFIED. ACCORDINGLY, WE SET ASIDE THE ORDER PAS SED BY THE LD. CIT(A) ON THIS ISSUE AND DIRECT THE A.O. TO DEL ETE THE DEMAND RAISED UPON THE ASSESSEE U/S 201(1A) & 220(2 ) OF THE ACT FOR THE YEAR UNDER CONSIDERATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.3.2020 SD/- (BEENA PILLAI) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 13 TH MARCH, 2020. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.