EVERSHINE FILMS. P.LTD, MUMBAI V. ITO (TDS) 1(5), MUMBAI

ITA 2048/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2902 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 18-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHER SINGH
• Section: 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBAI BENCH E, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2048 & 2052/MUM/2013 ASSESSMENT YEARS: 2005- 05 & 2006-07 M/S EVERSHINE FILMS PVT. LTD. FLAT NO.4, BUILDING NO. 16, OSHIWARA MAHADA, ANDHERI (WEST), MUMBAI-400053. PAN: AABCE4466G VS. ITO (TDS)- 1(5), AYURVED PRACHAR SANSTHA BUILDING, CHARNI ROAD, MUMBAI-400012. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. REVENUE BY : SHRI SHER SINGH (D R) DATE OF HEARING : 18.05.2016 DATE OF ORDER : 24.06.2016 O R D E R PER PAWAN SINGH, JM: 1. THESE TWO APPEALS FILED BY ASSESSEE ARE DIRECTED AG AINST THE ORDER OF CIT(A), MUMBAI DATED 18.11.2008 FOR ASSESSMENT YEAR (AY) 20 05-06 & 2006-07 RESPECTIVELY. THE ASSESSEE HAS RAISED THE IDENTICAL GROUNDS OF APPEAL FOR BOTH THE AYS, HENCE, THE SAME WERE HEARD TOGETHER A ND ARE BEING DISPOSED OF BY COMMON ORDER. THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF ORDER U/S 201(1) DATED 15.01.2007 PASSED BY AO AND UPHELD BY THE CIT(A). 2. AS FACTS LEADING TO FILE THE PRESENT APPEALS ARE AL MOST IDENTICAL, SO WE ARE DISCUSSING THE FACT OF ITA NO. 2048/M/13 . IN NUT SHELL THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS PRODUCER OF FEATURE FILMS. A SURVEY U/S. 133A OF THE ACT WAS CONDUCTED AT THE PREMISES OF ASSESSEE ON 03 .08.2006 WHEREIN THE AO NOTICED THAT ASSESSEE HAS SHOWN CURRENT LIABILIT Y IN THE TRIAL BALANCE FOR THE PERIOD 01.04.2005 TO 31.03.2006 FOR AN AMOUNT O F RS. 2,68,476/- AS TDS LIABILITY. THE ASSESSEE WAS ASKED TO FURNISH THE DE TAILS OF THE AMOUNT 2 ITA NOS. 2048 & 2052/MUM/2013- M/S EVERSHINE FILMS PVT. LTD. DEDUCTED AND PAID THE DETAILS OF NON-DEDUCTION OF T DS. NO DETAIL WAS FURNISHED NOR THE ASSESSEE FILED TDS RETURN. THE AS SESSEE WAS HELD TO BE IN DEFAULT U/S 201(1) OF THE ACT. THE AO CALCULATED TA X LIABILITY U/S 201(1) AT RS. 7,75,764/- AND INTEREST OF RS. 2,00,136/- U/S 2 01(1A) OF THE ACT. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). 3. DURING THE APPELLATE PROCEEDING BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT ASSESSEE MADE PAYMENTS TO VARIOUS PERSONS/ARTI ST WHO WERE SUBJECT TO DEDUCTION OF TAX. THESE PAYMENTS MAINLY PAID TO REN OWNED ARTIST WHO ARE ASSESSED TO TAX ON WHICH TAX HAS BEEN PAID BY SUCH PERSONS. AS NO TDS CERTIFICATE WERE ISSUED BY THE ASSESSEE FOR NON-DED UCTION. THE AO HAS NOT GIVEN CREDIT IN RESPECT OF TAX DEDUCTED AT SOURCE A ND DEPOSITED TO THE CREDIT OF GOVERNMENT. ON THE CONTENTION OF ASSESSEE, THE A PPEAL WAS DISPOSED OF WITH THE DIRECTION TO VERIFY THE OBJECTION RAISED B Y THE ASSESSEE IN THE LIGHT OF BOOKS OF ACCOUNT MAINTAINED AND IN CASE, THE AO FIN D THAT CLAIM OF ASSESSEE IS CORRECT, THE AO CAN REDUCE THE AMOUNT OF TDS AS WELL AS INTEREST ACCORDINGLY. AGAINST THE ORDER OF CIT(A), ASSESSEE HAS APPROACHED US. 4. NONE APPEARED ON BEHALF OF ASSESSEE WHEN THE CASE W AS TAKEN UP FOR HEARING DESPITE REPEATED CALLS. WE HAVE HEARD LD. DR FOR RE VENUE AND CONSIDERED THE MATERIAL AVAILABLE ON RECORD. LD. DR OF THE REVENUE ARGUED THAT ASSESSEE WAS ALREADY GRANTED RELIEF AND NO FURTHER RELIEF CA N BE GRANTED TO THE ASSESSEE IN ABSENCE OF ANY EXPLANATION OFFERED BY ASSESSEE F OR NOT DEPOSITING THE DEDUCTED TDS. 5. WE HAVE CONSIDERED THE CONTENTIONS OF REVENUE AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE NOTICED THAT BEFORE TH E AO, THE ASSESSEE HAD ADMITTED THAT AMOUNT OF TDS DEDUCTED BUT STILL OUTS TANDING FOR PAYMENT TO THE REVENUE. DESPITE GIVING OPPORTUNITY THE ASSESSE E NOT PROVIDED THE INFORMATION CALL FOR TO DETERMINE THE TAX LIABILITY FOR VARIOUS YEARS. THE ASSESSEE RAISED OBJECTION BEFORE THE APPELLATE AUTH ORITY REGARDING THE WORKING OUT OF THE LIABILITY. BUT NO EXPLANATION AB OUT ITS OBJECTION OR ANY EVIDENCE TO SUBSTANTIATE HIS CONTENTION WAS FILED D ESPITE PROVIDING 3 ITA NOS. 2048 & 2052/MUM/2013- M/S EVERSHINE FILMS PVT. LTD. OPPORTUNITIES. HOWEVER STILL, LD. CIT(A) DIRECTED T HE AO TO VERIFY THE OBJECTION RAISED BY ASSESSEE IN THE LIGHT OF BOOKS OF ACCOUNT MAINTAINED BY ASSESSEE, AND REDUCE THE AMOUNT OF TDS AS WELL AS I NTEREST TO THAT EXTENT. THOUGH WE DO NOT FIND ANY MERIT IN THE GROUND OF AP PEAL RAISED BY ASSESSEE. HOWEVER, KEEPING IN VIEW THE PRINCIPLE OF NATURAL J USTICE, THE ASSESSEE IS FURTHER ALLOWED TO FILE THE RECORD OF THE PERSONS W HO HAVE PAID THE TAX IN THEIR RETURN OF INCOME IN RESPECT OF THE PAYMENT MA DE BY ASSESSEE. THE AO AFTER EXAMINING ALL THE RECORD SO PRODUCED BY ASSES SEE, AFTER DUE VERIFICATION REDUCE THE LIABILITY OF ASSESSEE ACCORDINGLY. WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSESSEE IS DISPOSED OF. 6. IN APPEAL NO. 2052/MUM/2013, THE IDENTICAL ISSUES ARE RAISED AND THE FACT OF THE CASE IS IDENTICAL TO THE ITA NO. 2048/MUM/2013, WHICH HAS BEEN RESTORED TO THE FILE OF AO, HENCE, THIS APPEAL IS ALSO DISPOSED WITH THIS SIMILAR DIRECTION. 7. IN THE RESULT, BOTH THE APPEALS FILED BY ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COUR T ON THIS 24 TH JUNE, 2016. SD/- SD/- (SANJAY ARAORA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 24/06/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/