Pansuli High School, Burdwan V. I.T.O.Ward-4(2), TDS, Burdwan

ITA 2068/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0739 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 05-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI ROY
• Assessee Lawyers: S P DA TTA
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 200A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA D BENCH, KOLKATA [VIRTUAL COURT HEARING] (BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT, KZ & SHRI SATBEER SINGH GODARA, HONBLE JUDICIAL MEMBER) ITA NO. 2068 & 2069/KOL/2019 ASSESSMENT YEARS: 2010-11 & 2011-12 PANSULI HIGH SCHOOL......................................................................APPELLANT NUTANDANGA BURDWAN- 713381 WEST BENGAL [PAN : AAALP 1806 D] VS. INCOME TAX OFFICER, WARD-4(2),TDS, BURDWAN.............................RESPONDENT APPEARANCES BY: SHRI S.P. DATTA, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI DHRUBAJYOTI ROY, JCIT D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 11 TH , 2020 DATE OF PRONOUNCING THE ORDER : JUNE 11 TH , 2020 ORDER PER P.M. JAGTAP, VP, KZ:- THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BURDWAN, (HEREINAFTER THE LD.CIT(A)), PASSED EX-PARTE, BOTH DT. 10/05/2019, DISMISSING THE APPEALS OF THE ASSESSEE FILED AGAINST INTIMATIONS U/S 200A OF THE INCOME TAX ACT, 1961 (ACT) FOR THE ASSESSMENT YEAR 2010-11 & 2011-12, FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE FILED THE TDS RETURNS/STATEMENTS FOR THE FINANCIAL YEAR 2009-10 AND 2010-11. FROM THE PERUSAL OF THE SAME, THE ASSESSING OFFICER FOUND THAT THERE WAS A SHORT DEDUCTION OF TAX AT SOURCE TO THE EXTENT OF RS.1,630/- AND SHORT PAYMENT OF TAX DEDUCTED AT SOURCE TO THE EXTENT OF RS.10,000/- DURING THE FINANCIAL YEAR 2009-10. HE ACCORDINGLY ISSUED AN INTIMATION U/S 200A OF THE ACT, SHOWING THE AMOUNT PAYABLE BY THE ASSESSEE FOR THE FINANCIAL YEAR 2009-10 I.E. ASSESSMENT YEAR 2010-11 TO THE TUNE OF RS.18,120/- INCLUDING INTEREST OF RS.6,490/-. HE ALSO NOTICED A SIMILAR DEFAULT ON THE PART OF THE ASSESSEE IN SHORT PAYMENT OF TAX DEDUCTED AT SOURCE (TDS) TO THE EXTENT OF RS.2,82,920/- INCLUDING INTEREST OF RS.53,380/- FOR ASSESSMENT YEAR 2011-12 AND ACCORDINGLY ISSUED INTIMATION U/S 200A OF THE ACT, FOR THE SAME. 2.1. AGAINST THE INTIMATIONS ISSUED BY THE ASSESSING BOTH THE YEARS UNDER CONSIDERATION, APPEALS WERE PREFERRED BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM , FIXING THE APPEALS FOR HEARING FROM T DISMISSED THE APPEALS OF THE ASSESSEE VIDE APPELLATE ORDERS DT. 10/05/2019, PASSED EX-PARTE. AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS O MATERIAL AVAILABLE ON RECORD. AT THE OUTSET IT IS NOTED THAT THERE IS A DELAY OF 38 DAYS ON THE PART OF THE ASSESSEE IN FILING THESE APPEALS BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN AFFID AUTHORISED REPRESENTATIVE OF THE ASSESSEE STATING THAT HE WAS NOT WELL AT THE RELEVANT TIME DUE TO WHICH THE APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED TIME LIMIT. KEEPING IN VIEW THE SAME, WE ARE SATI DELAY OF 38 DAYS ON THE PART OF THE ASSESSEE TRIBUNAL. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS ACCORDINGLY CONDONED AND THESE APP MERIT. 3.1. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THERE WAS NO DEFAULT ON THE PART OF THE ASSESSEE IN SHORT DEDUCTION OF TDS OR SHORT PAYMENT OF TDS, AS ALLEGED BY THE ASSESSING OFFICER IN THE IN ASSESSMENT YEARS UNDER CONSIDERATION. HE HAS CONTENDED THAT NO OPPORTUNITY, HOWEVER, WAS GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE TO PRODUCE THE RELEVANT CHALLANS, IN ORDER TO SUPPORT AND SUBSTANTIAT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(A) ALSO DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE DISMISSING THE APPEALS OF THE ASSESSEE FOR NON PROSECUTION VIDE HIS IMPUGNED ORDERS PASSED MATTERS MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING THE ASSESSEE AN OPPORTUNITY TO SHOW THAT THERE IS NO CASE OF ANY SHORT DEDUCTION OF TDS BY THE ASSESSEE AS ALLEGED BY THE ASSESSING OFFICER. KEEPING IN VIEW A CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO ACCEPT TH 2 ITA NO. ASSESSMENT YEARS: 2010 AGAINST THE INTIMATIONS ISSUED BY THE ASSESSING OFFICER U/S 200A OF THE ACT FOR BOTH THE YEARS UNDER CONSIDERATION, APPEALS WERE PREFERRED BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES , FIXING THE APPEALS FOR HEARING FROM T IME TO TIME, THE LD. CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE VIDE APPELLATE ORDERS DT. 10/05/2019, PASSED AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS WE HAVE HEARD THE ARGUMENTS O F BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSET IT IS NOTED THAT THERE IS A DELAY OF 38 DAYS IN FILING THESE APPEALS BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN AFFID AVIT OF ADVOCATE SRI SIDDHARTHA PRATIM DATTA, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE STATING THAT HE WAS NOT WELL AT THE RELEVANT TIME DUE TO WHICH THE APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED TIME LIMIT. KEEPING IN VIEW THE SAME, WE ARE SATI SFIED THAT THERE WAS A SUFFICIENT CAUSE ON THE PART OF THE ASSESSEE IN FILING OF THESE APPEALS BEFORE THE TRIBUNAL. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY IS ACCORDINGLY CONDONED AND THESE APP EALS OF THE ASSESSEE ARE BEING DISPOSED OFF ON THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THERE WAS NO DEFAULT ON THE PART OF THE ASSESSEE IN SHORT DEDUCTION OF TDS OR SHORT PAYMENT OF TDS, AS ALLEGED BY THE ASSESSING OFFICER IN THE IN TIMATIONS ISSUED U/S 200A OF THE ACT, FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION. HE HAS CONTENDED THAT NO OPPORTUNITY, HOWEVER, WAS GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE TO PRODUCE THE RELEVANT IN ORDER TO SUPPORT AND SUBSTANTIAT E ITS CASE AND EVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(A) ALSO DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE DISMISSING THE APPEALS OF THE ASSESSEE FOR NON PROSECUTION VIDE HIS IMPUGNED ORDERS PASSED EX-PARTE. HE HAS URGED THAT THESE MATTERS MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING THE ASSESSEE AN OPPORTUNITY TO SHOW THAT THERE IS NO CASE OF ANY SHORT DEDUCTION OF TDS BY THE ASSESSEE AS ALLEGED BY THE ASSESSING OFFICER. KEEPING IN VIEW A LL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO ACCEPT TH IS CONTENTION OF THE LD. COUNSEL ITA NO. 2068 & 2069/KOL/2019 ASSESSMENT YEARS: 2010 -11 & 2011-12 PANSULI HIGH SCHOOL OFFICER U/S 200A OF THE ACT FOR BOTH THE YEARS UNDER CONSIDERATION, APPEALS WERE PREFERRED BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES IME TO TIME, THE LD. CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE VIDE APPELLATE ORDERS DT. 10/05/2019, PASSED AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS F BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSET IT IS NOTED THAT THERE IS A DELAY OF 38 DAYS IN FILING THESE APPEALS BEFORE THE TRIBUNAL. IN THIS REGARD, SRI SIDDHARTHA PRATIM DATTA, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE STATING THAT HE WAS NOT WELL AT THE RELEVANT TIME DUE TO WHICH THE APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED TIME LIMIT. SFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE IN FILING OF THESE APPEALS BEFORE THE TRIBUNAL. EVEN THE LD. D/R, HAS NOT RAISED ANY OBJECTION IN THIS REGARD. THE SAID DELAY EALS OF THE ASSESSEE ARE BEING DISPOSED OFF ON THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THERE WAS NO DEFAULT ON THE PART OF THE ASSESSEE IN SHORT DEDUCTION OF TDS OR SHORT PAYMENT OF TDS, AS ALLEGED BY TIMATIONS ISSUED U/S 200A OF THE ACT, FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION. HE HAS CONTENDED THAT NO OPPORTUNITY, HOWEVER, WAS GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE TO PRODUCE THE RELEVANT E ITS CASE AND EVEN PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE LD. CIT(A) ALSO DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE DISMISSING THE APPEALS OF THE ASSESSEE FOR NON - HE HAS URGED THAT THESE MATTERS MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING THE ASSESSEE AN OPPORTUNITY TO SHOW THAT THERE IS NO CASE OF ANY SHORT DEDUCTION OF TDS BY THE LL THE FACTS AND OF THE LD. COUNSEL FOR THE ASSESSEE. EVEN THE LD. D/R HAS NOT RAISED ANY OBJECTION IN THIS REGARD AND SUBMITTED THAT THESE MATTERS CAN GO BACK TO THE ASSESSING OFFICER FO VERIFICATION. THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) PASSED THE ASSESSMENT YEARS UNDER CONSIDERATION ARE ACCORDINGLY SET ASIDE AND THE MATTERS ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH A GIVING THE ASSESSEE AN OPPORTUNITY TO PRODUCE THE RELEVANT THAT THERE WAS NO SHORT PAYMENT OF TDS, IN BOTH THE ASSESSMENT YEARS CONSIDERATION. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED F STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SD/- [S.S. GODARA] JUDICIAL MEMBER DATED : 11.06.2020 {SC SPS}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