M/s Sri Seetharama Constructions ., Srikakulam V. The DCIT, Central Circle-1., Visakhapatnam

ITA 194/VIZ/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2819 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 26-04-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Assessee Lawyers: C V S MURTHY
• Keywords: TDS; Set aside
• Section: 143(3); 143(1); 154

Judgement Text

PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.194/VIZAG/2006 ASSESSMENT YEAR: 2001-02 M/S SRI SEETHARAMA CONSTRUCTIONS, RAJAM VS. DCIT, CENTRAL CIRCLE-1, VISAKHAPATNAM (APPELLANT) (RESPONDENT) PAN NO. AANPS 7555 D APPELLANT BY: SHRI C.V.S. MURTHY, CA RESPONDENT BY: SHRI B. JAYAKUMAR, DR ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 20-02-2006 PASSED BY THE LD. CIT (A)-I, HYDERABAD AND IT RELAT ES TO THE ASSESSMENT YEAR 2001- 02. 2. THE ONLY ISSUE THAT EMERGES OUT OF THE GROUNDS R AISED BY THE ASSESSEE IS WHETHER THE LD. CIT (A) IS JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN WITHDRAWING THE INTEREST GRANTED U/S 244A(1) OF THE ACT. 3. THE FACTS ARE STATED IN BRIEF. THE ASSESSEE FILE D HIS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.14,60,000/-. WHILE P ROCESSING THE RETURN U/S 143(1) TDS AMOUNT TO THE EXTEND OF RS.11,10,448/- RELATING TO 4 TDS CERTIFICATES WAS NOT GIVEN CREDIT, AS THE AO NOTICED CERTAIN DEFECTS IN THE SAID TDS CERTIFICATES. SUBSEQUENTLY THE ASSESSMENT WAS COMPLETED U/S 143(3 ) ON 25-04-2003. IN THAT ORDER ALSO TDS CREDIT CITED ABOVE WERE NOT GIVEN. T HEREAFTER, ON SUBMISSION OF THE CORRECTED TDS CERTIFICATES, THE AO PASSED AN ORDER U/S 154 OF THE ACT ON 30.04.2003 PAGE 2 OF 3 GIVING CREDIT OF RS.11,10,448/-. IN THAT ORDER, THE AO GRANTED INTEREST U/S 244A(1) AMOUNTING TO RS.1,90,692/-. THEREAFTER BY AN ORDER DATED 09.08.2005 PASSED U/S 154 OF THE ACT, THE AO WITHDREW THE INTEREST GRANTE D U/S 24A(1), AS ACCORDING TO THE AO, THE ENTIRE DELAY IN GRANTING THE REFUND WAS ATT RIBUTABLE TO THE ASSESSEE ONLY AND HENCE IN TERMS OF SEC.244, THE ASSESSEE IS NOT ENTI TLED TO ANY INTEREST. THE LD CIT (A) ACCEPTED THE VIEW OF THE AO AND ACCORDINGLY DIS MISSED THE APPEAL FILED BY THE ASSESSEE. HENCE THE ASSESSEE IS IN APPEAL BEFORE US . 4. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE RECORD. SEC. 244A(2) PROVIDES THAT IF THE PROCEEDINGS RESULTING IN THE R EFUND ARE DELAYED FOR THE REASONS ATTRIBUTABLE TO THE ASSESSEE, WHETHER WHOLLY OR IN ANY PART, THE PERIOD OF THE DELAY SO ATTRIBUTABLE TO HIM, SHALL BE EXCLUDED FROM THE PERIOD, FOR WHICH THE INTEREST IS PAYABLE. IN THE INSTANT CASE THE ASSESSEE HAD ENCLO SED THE IMPUGNED TDS CERTIFICATES ALONG WITH HIS RETURN OF INCOME. SINC E THE AO FOUND CERTAIN DEFECTS IN THE TDS CERTIFICATES, THE SAME WERE RETURNED FOR CO RRECTION. THE ASSESSEE HAS RESUBMITTED THE CORRECTED TDS CERTIFICATES BACK TO THE AO, AFTER GETTING IT CORRECTED. THE TDS CERTIFICATE IS A DOCUMENT PREPARED AND ISSU ED BY THE TAX DEDUCTOR UNDER HIS SIGNATURE. HENCE THE CORRECTION, IF ANY, CAN ONLY BE CARRIED OUT BY THE SAID DEDUCTOR. IN THE INSTANT CASE, THE ASSESSEE HAS SU BMITTED THE TDS CERTIFICATES GIVEN TO HIM ALONG WITH THE RETURN OF INCOME. HENCE, TH ERE IS NO ROLE FOR THE ASSESSEE IN THE MATTER OF CORRECTION OF TDS CERTIFICATES. IT I S NOT THE CASE OF THE AO THAT THE ASSESSEE DID NOT FILE THE TDS CERTIFICATE AT ALL. HENCE IT CANNOT BE SAID THAT THE REFUND GOT DELAYED FOR THE REASONS ATTRIBUTABLE TO THE ASSESSEE. THE LD AR HAS PLACED HIS RELIANCE ON THE DECISION OF ITAT MUMBAI IN THE CASE OF ETERNIT EVEREST LTD., VS. DY.COMMISSIONER OF INCOME TAX (2007) (12 SOT 40) (MUMBAI). IN THAT CASE THE ASSESSEE THEREIN FILED PHOTO COPIES OF TDS CERTIFICATE ALONG WITH RETURN OF INCOME AND FILED ORIGINAL TDS CERTIFICATE SUBSEQUEN TLY. THE AO GRANTED INTEREST FROM THE DATE OF FILING OF THE ORIGINAL CERTIFICATE. THE TRIBUNAL HELD THAT THE DELAY IN FURNISHING THE ORIGINAL TDS CERTIFICATE COULD NOT B E TREATED AS A DELAY IN RESPECT OF PROCEEDINGS RESULTING IN REFUND AND ACCORDINGLY HEL D THAT THE ASSESSEE WAS ENTITLED TO INTEREST FROM 1 ST DAY OF THE RELEVANT ASSESSMENT YEAR TO THE DATE OF SENDING OF THE REFUND VOUCHER. THOUGH THE FACTS OF THIS CASE ARE S LIGHTLY DIFFERENT, YET THE IMPORTANT POINT IS THAT THE ASSESSEE HEREIN HAS SUBMITTED THE ORIGINAL TDS CERTIFICATES AND THE PAGE 3 OF 3 DELAY IN FURNISHING THE CORRECTED TDS CERTIFICATES IS BEYOND THE CONTROL OF THE ASSESSEE AND HENCE IT CAN NOT BE TREATED AS DELAY O F PROCEEDINGS RESULTING IN REFUND. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD CIT (A) AND CANCEL THE DEMAND RAISED BY THE AO IN THE ORDER PASSED ON 09.0 8.2005 U/S 154 OF THE ACT. 5. THE IMPUGNED INTEREST WAS GRANTED IN THE ORDER DATED 30-4-2003. THE TOTAL REFUND GRANTED INCLUDING THE IMPUGNED INTEREST WAS RS.12,74,198/-. HOWEVER, WHILE PASSING THE ORDER 18.3.2005 U/S 143(3) R.W.S. 147, THE ENTIRE AMOUNT OF REFUND OF RS.12,74,228/- WAS WITHDRAWN, WHICH MEANS THE IMPUG NED INTEREST GRANTED EARLIER WAS ALSO WITHDRAWN. IN THAT SAID ORDER, AFTER SO WITHDRAWING THE REFUND, A DEMAND OF RS.2,79,685/- WAS RAISED ON WHICH INTEREST U/S 2 34D WAS ALSO COLLECTED. IN THAT CASE, THE ORDER DATED 9-8-2005 PASSED U/S 154 FOR W ITHDRAWING INTEREST IS SUPERFLUOUS. ON THAT GROUND ALSO, THE SAID ORDER I S LIABLE TO BE QUASHED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCED IN THE OPEN COURT ON 3.12.2009. SD/ - SD/ - (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, 3 RD DECEMBER,2009. COPY TO 1 M/S. SRI SEETHARAMA CONSTRUCTIONS, TIRUMALA COMPLEX , MAI N ROAD, RAJAM, SRIKAKULAM DISTRICT 2 DCIT, CENTRAL CIRCLE - 1, VISAKHAPATNAM . 3 THE CIT (APPEALS) - I, HYDERABAD 4 THE CIT (CENTRAL0, HYDERABAD 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM