The Secretary, Ernakulam V. The ITO(TDS), Cochin

ITA 19/COCH/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8591 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LAXMIBHAI
• Assessee Lawyers: P G RAJITH KUMARCA
• Keywords: Reasonable cause
• Section: 12

Judgement Text

ITA NO S. 1 8 TO 21/C/2016 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO S 18 TO 21/COCH/2016 . ( A SST YEAR S 2008 - 09 TO 2011 - 12 ) THE SECRETARY POOTHRIKKA GRAM PANCHAYATH POOTHRIKKA ERAKULAM DIST VS THE INCOME TAX OFFICER(TDS) KOCHI ( APPELLANT) (RESPONDENT) PAN NO. CHMPO1216F ASSESSEE BY SH P G RAJITH KUMAR,CA REVENUE BY SMT LAXMIBHAI, SR DR DATE OF HEARING 30 TH MAY 2016 DATE OF PRONOUNCEMENT 2ND JUNE 2016 OR D ER PER BENCH : THESE APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) DATED 27 TH NOV 2015. THE ORDER OF THE CIT(A) ARISES OUT OF THE ORDER PASSED U/S 206C(7) OF THE I T ACT. THE RELEVANT ASSESSMENT YEARS ARE 2008 - 09 TO 2011 - 12. 2 THE SOLIT ARY ISSUE THAT ARISES FOR OUR CONSIDERATION IS WHETHER THE CIT(A) IS JUSTIFIED IN D ISMISSING THE APPEALS IN LIMINE, WITHOUT CONDONING THE DELAY IN FILING THE APPEAL. ITA NO S. 1 8 TO 21/C/2016 2 3 BRIEFLY STATED THE FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS A GOVERNMENT LOC AL AUTHORITY. DURING THE ASSESSMENT YEARS 2008 - 09 TO 2011 - 12, THE ASSESSEE HAD COLLECTED TAX AT SOURCE ON SALE OF RIVER SAND. THE TAX COLLECTED AT SOURCE WAS BELATEDLY REMITTED TO THE GOVERNMENT ACCOUNT. THE ENTIRE TAX COLLECTED AT SOURCE FOR THE AYS 2008 - 09 TO 2011 - 12 WAS REMITTED TO THE GOVERNMENT ACCOUNT ON 14.9.2012. T HE INCOME TAX OFFICER (TDS) PASSED ORDER U/ S 206C(7) OF THE I T ACT FOR LEVYING INTEREST , SINCE THE TAXES COLLECTED AT SOURCE WERE BELATED REMITTED TO THE GOVERNMENT ACCOUNT. THE INTERE ST LEVIED U/S 206C(7) FOR THE AYS 2008 - 09 TO 2011 - 12 ARE AS FOLLOWS: 2008 - 09 RS. 62,043/ - 2009 - 10 RS 64,405/ - 2010 - 11 RS. 49,338/ - 2011 - 12 RS 97,149/ - 4 AGGRIEVED BY THE ABOVE ORDER S PASSED BY THE INCOME TAX OFFICER (TDS), THE ASSESSEE PREFERRED APPEALS TO THE FIRST APPELLATE AUTHORITY. THE APPEALS WERE FILLED BELATED AND THE ASSESSEE HAD FILED CONDONATION PETITION BEFORE THE CIT(A). THE CIT(A) REJECTED THE CONDONATION PETITION FILED BY THE ASSESSEE AND DISMISSED T HE APPEALS IN LIMINE WITHOUT GOI NG INTO THE ISSUE ON MERITS. 5 THE ASSESSEE , BEING AGGRIEVED , IS IN APPEAL BEFORE US. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEALS OF THE ASSESSEE IN LIMINE. IT WAS SUBMITTED THAT T HE CIT(A) OUGHT NO T TO HAVE DISMISSED THE MERITORIOUS CASE WITHOUT CONSIDERING THE PRINCIPLES LAID DOWN BY ITA NO S. 1 8 TO 21/C/2016 3 THE HONBLE SUPREME COURT IN THE CASE OF THE COLLECTOR , LAND ACQUISITION VS MST KATIJI REPORTED IN (1981) 66 STC 228 . THE LD COUNSEL ALSO RELIED ON THE JUDGMENTS OF THE HONBLE SUPREME COURT IN THE CASE OF ORIENTAL AROMA CHEMICAL INDUSTRIES LTD VS GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION REPORTED IN (2010) 5 SCC 459 AND IN THE CASE OF R B RAMALINGAM VS R B BHUVANESHWARI REPORTED IN (2009) 1 RCR (CIVIL) 892. IT WAS FUR THER CONTENDED BY THE LD COUNSEL THAT THE ASSESSEE WAS NOT LIABLE TO COLLECT TAX AT SOURCE U/S 206C OF THE I T ACT , ON SALE OF RIVER S AND , HENCE, THE INTEREST LEVIED FOR THE DELAY IN REMITTANCE OF TAX WHICH IS NOT LEGALLY DUE, IS UNJUSTIFIED. THE LD DR PRESENT WAS DULY HEARD. 6 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLITARY ISSUE THAT ARISES FOR OUR CONSIDERATION IS WHETHER THE CIT ( A) IS JUSTIFIED IN DISMISSING THE APPEALS IN LIMINE. THE REASONS STATED FOR THE DELAY IN FILING THE APPEALS BEFORE THE CIT(A) ARE AS FOLLOWS: WE HAVE RECEIVED THE ORDER AND NOTICE OF DEMAND FROM THE AO ON15.12.2012. WE HAVE FILED HE ABOVE APPEAL ONLY ON 6.6.2013 WHEREAS THE DUE DATE FOR FILING THE APPEAL FALLS ON 14.1.2013 RESULT ING A DELAY FOR MORE THAN 130 DAYS. THE DELAY ON THE PART OF THE APPLICANT, WAS ON ACCOUNT OF SEEING EXPERT OPINIONS FROM PROFESSIONALS AND LEGAL EXPERTS AND TO OBTAIN GUIDELINES AND VARIOUS DOCUMENTARY EVIDENCES IN THE FORM OF DIRECTIONS/PRONOUNCEMENTS IN THIS MATTER. AS THE CASE IS A RARE NATURE, IT TOOK TIME FOR A SOLUTION. AFTER GETTING THE ADVICE FROM THE EXPERT, THE APPLICANT LOST NO TIME IN FILING THE APPEAL. IN THE LIGHT OF THE ABOVE MENTIONED FACTS, I RESPECTFULLY SUBMIT THAT THE DELAY IS DUE TO THE CIRCUMSTANCES BEYOND OUR CONTROL AND HENCE YOUR ITA NO S. 1 8 TO 21/C/2016 4 GOOD SELF MAY BE KIND ENOUGH TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE DUE DATE AND TO ACCEPT THE APPEAL. 7 THE ABOVE REASONS STATED BY THE ASSESSEE, AS RIGHTLY POINTED OUT BY THE CIT(A) , A RE VAGUE AND NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE ASSESSEE MERELY STATES THAT THE DELAY OF 1 5 0 DAYS OCCURRED ON ACCOUNT OF OBTAINING THE PROFESSIONAL LEGAL OPINION. THE ASSESSEE HAS NOT STATED AS TO WHAT IS THE LEGAL OPINION THAT IT HAD SOUGHT AN D WHEN TH E LEGAL OPINION IS RECEIVED. THE TAX WAS COLLECTED AT SOURCE FOR THE AYS 2008 - 09 TO 2011 - 12 AND THE SAME WAS RETAINED WITH THE ASSESSEE TILL IT WAS REMITTED TO GOVERNMENT ACCOUNT ON 14.9.2012. THEREFORE, THE ASSESSEE HAD THE BENEFIT OF UTILIZATIO N OF GOVERNMENT MONEY . WE ARE OF THE VIEW THAT T HE REASONS STATED IN THE AFFIDAVIT FILED BY THE ASSESSEE IS NOT A REASONABLE CAUSE FOR CONDONING THE DELAY IN FILING THE APPEALS BELATEDLY AND THE CIT(A) IS JUSTIFIED IN DISMISSING THE APPEALS OF THE ASSESS EE IN LIMINE. 8 BEFORE CONCLUDING , IT IS NECESSARY TO ADDRESS THE ASSESSEES CONTENTION THAT IT IS NOT LIABLE FOR COLLECTION OF TAX AT SOURCE U/S 206C OF THE ACT. UNDER SECTION 206C(1), SALE OF CERTAIN PRODUCE, IS SUBJECTED TO THE TAX COLLEC TION AT SOUR CE . THE SAND IS NOT A PRODUCE MENTIONED IN ITEMS ENUMERATED U/S 206C(1) HOWEVER, U/S 206C(IC) ENUMERATE MINING AND QUARRYING. THEREFORE, IF THE ASSESSEES RECEIVE ANY AMOUNT FROM A CONTRACTOR FOR MINING RIGHTS OF SAND, NECESSARILY TAX HAS TO BE COLLECT ED AT SOURCE ON TH O SE RECEIPTS . IN THE INSTANT ITA NO S. 1 8 TO 21/C/2016 5 CASE, THERE IS NOTHING ON RECORD TO PROVE THAT THE AMOUNTS ARE RECEIVED BY THE ASSESSEE ON ACCOUNT OF SALE OF SAND PER - SE OR ON THE OTHER HAND AMOUNTS ARE RECEIVED FOR MINING RIGHTS FOR EXTRACTING SAND. THER EFORE , WE CANNOT BE COME TO A DEFINITE CONCLUSION AS TO THE APPLICABILITY OR NON APPLICABILITY OF SECTION 206C(IC) IN THE INSTANT CASE. FOR THE AFORESAID REASONS, WE ARE OF THE VIEW THAT THE CIT(A) IS JUSTIFIED IN DISMISSING THE APPEALS OF THE ASSESSEE A ND WE UPHOLD THE SAME AS CORRECT AND IN ACCORDANCE WITH LAW. IT IS ORDERED ACCORDINGLY. 9 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE ARE DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF JUNE 2016. SD/ - SD/ - ( B P JAIN) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 2 ND JUNE 2016 RAJ* ITA NO S. 1 8 TO 21/C/2016 6 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT, 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN