M/s. Rukmani Infra Projects Pvt. Ltd., Bhubaneswar V. ACIT, TDS-1, Bhubaneswar

ITA 205/CTK/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5349 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-04-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 205 /CTK /20 1 7 ( / ASSESSMENT YEAR :201 2 - 201 3 ) M/S RUKMANI INFRA PRO JECTS PVT. LTD., 2 51 , DISTRICT CENTRE, CHANDRASEKHARPUR, BHUBANESWAR VS. ACIT, (TDS - 1), BHUBANESWAR ./ ./ PAN/GIR NO. : A A ECR 1585 L ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : NONE /REVENUE BY : SHRI D.K.PRADHAN, DR / DATE OF HEARING : 02 /0 4 /201 8 / DATE OF PRONOUNCEMENT 0 4 /0 4 /201 8 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINS T THE ORDER OF THE CIT(A) - 3, BHUBANESWAR, PASSED IN ITAPPEAL NO.03 73 /201 4 - 1 5 , DATED 29.03.2017 U/S. 271 C OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2012 - 2013. 2. THE SOLE SUBSTANTIAL GROUND RAISED BY THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIR MING THE IMPOSITION OF PENALTY U/S. 271 C OF THE ACT. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF INFRASTRUCTURE PROJECTS AND THE AO HAS PASSED ORDER U/S.201(1)/201(1A) OF THE ACT ON 19.12.2013 RAISING A DEMAND FOR NON - DE DUCTION OF TDS RS. 10,89,370/ - INCLUDING INTEREST U/S.201(1A) OF THE ACT OF RS.2,43,473/ - . THE DEMAND HAS A R ISEN I N RESPECT OF NON - DEDUCTION OF TDS OF ITA NO 205 /CTK/201 7 2 CONTRACTUAL AMOUNT U/S.194A OF THE ACT. SUBSEQUENTLY THE AO HAS ISSUED NOTICE FOR INITIATION OF PENALTY. S INCE THERE IS NO COMPLIANCE ON THE PART OF THE ASSESSEE AND THE AO BASED ON THE AVAILABILITY OF INFORMATION ON RECORD FOUND THAT THE ASSESSEE COULD NOT EXPLAIN THE DETAILS FOR NON - DEDUCTION OF TDS, THEREFORE LEVIED PENALTY AND PASSED THE ORDER U/S.271(1)(C ) OF THE ACT DATED 27.8.2014. 4. ON APPEAL, THE CIT(A) HAS CONFIRMED THE FINDINGS OF AO AND DISMISSED THE APPEAL OF THE ASSESSEE. 5. AT THE TIME OF HEARING, N ONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MATTER WAS CALLED FOR HEARING NOR ANY ADJOURNMENT APPLICATION WAS PLACED ON RECORD, THUS, THE BENCH PROCEEDED TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND ON THE SUBMISSIONS OF LD. DR. 6. WE HAVE HEARD SUBMISSIONS OF LD. DR AND CONSIDERED THE MATERIALS AVAILABLE ON RECORD. T HE ONLY DISPUTED ISSUE IS IN RESPECT OF LEVY OF PENALTY BY THE AO FOR NON - DEDUCTION OF TDS ON INTEREST PAYMENTS TO NBFCS WHE REAS T HE ASSESSEE HAS MADE THE PAYMENTS BY WAY OF EMI AND POST DATED CHEQUES (PDC) . THE CONTENTION OF THE ASSESSEE THAT A RECIPIENT H AS ALREADY OFFERED INCOME IN THEIR INCOME TAX RETURNS AND ASSESSEE IS NOT REQUIRED TO DEDUCT TDS AND RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PRIVATE LIMITED VS. CIT. WE FOUND THAT THE ASSESSEE IS IN THE BUSINESS OF INFRASTRUCTURE PROJECTS AND HAS NOT DEDUCTED TDS ON PAYMENTS MADE TO ITA NO 205 /CTK/201 7 3 NBFCS ON ACCOUNT OF INTEREST, THEREFORE, AO RAISED DEMAND U/S.201(1)/201(1A) OF THE ACT AGGREGATING TO RS. 10,89,370/ - AND ALSO PENALTY WAS ALSO LEVIED. WE FOUND THAT FOR T HE EARLIER ASSESSMENT YEAR 2011 - 2012 AND SUBSEQUENT ASSESSMENT YEAR 2013 - 2014, THE HONBLE TRIBUNAL HAS REMITTED THE MATTER TO THE FILE OF AO FOR VERIFICATION WHETHER THE RECIPIENT HAS OFFERED THIS INCOME IN THE IR ASSESSMENT S AND CERTIFICATE FROM CA HAS BE EN SUBMITTED. SIMILARLY IN THIS PRESENT ASSESSMENT YEAR WE ARE OF THE OPINION IF IN THE QUANTUM APPEAL FOR ASSESSMENT YEAR 2012 - 2013 THE ASSESSEE HAS PRODUCED THE INCOME TAX PARTICULARS AND THE DETAILS OF INTEREST INCOME HAS BEEN OFFERED BY THE RECIPIENT I N ITS ASSESSMENT THE AO MAY CONSIDER THE SAME IN THE PENALTY PROCEEDINGS. ACCORDINGLY, WE REMIT THE PENALTY APPEAL TO THE FILE OF AO AND THE ASSESSEE IS DIRECTED TO SUBMIT THE INFORMATION OF RECIPIENT OF INTEREST INCOME AND AO SHALL DECIDE THE CASE AFRESH AFTER GIVING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE GROUND S OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRO NOUNCED IN THE OPEN COURT ON THIS 04 / 0 4 /201 8 . SD/ - (N. S. SAINI) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 04 / 0 4 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY ITA NO 205 /CTK/201 7 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. APPELLANT - ASSESSEE M/S RUKMANI IN FRA PROJECTS PVT. LTD., 251, DISTRICT CENTRE, CHANDRASEKHARPUR, BHUBANESW AR 2. RESPONDENT - REVENUE ACIT, (TDS - 1), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//