GRAVISS HOSPITALITY LTD, MUMBAI V. ASST CIT (TDS) 3(1), MUMBAI

ITA 2110/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2475 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 10-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 27-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 2110 /MUM/2014 & 2111/MUM/2014 ( / ASSESSMENT YEAR : 2009-10) M/S GRAVISS HOSPITALITIES LIMITED , 135, NETAJI SUBHASH ROAD, CHURCHGATE, MUMBAI-400 020 / V. ASSISTANT COMMISSIONER OF INCOME TAX(TDS)-3(1) CHARNI ROAD, MUMBAI ./ PAN :AAACT0048E & TAN MUMT09738B ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI JITENDRA JAIN R E SPONDENT BY : NONE / DATE OF HEARING : 10-11-2015 / DATE OF PRONOUNCEMENT : 18-11-2015 !' / O R D E R PER BENCH : THESE TWO APPEAL, FILED BY THE ASSESSEE COMPANY, BE ING ITA NO. 2110 /MUM/2014 & 2111/MUM/2014 , ARE DIRECTED AGAINST THE ORDERS BOTH DATED 28-01-2014 PASSED BY THE COMMISSIONER OF INCO ME TAX(APPEALS) - 40, MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE A SSESSMENT YEAR 2009-10. THERE IS A COMMON ISSUE IN BOTH THE APPEALS AND HEN CE THE SAME ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE AND BREVITY. 2. FIRST WE SHALL TAKE THE APPEAL ITA NO. 2110/MUM/ 2014 FOR THE ASSESSMENT YEAR 2009-10 AND OUR DECISION IN THIS APPEAL SHALL APPLY MUTATIS MUTANDIS ITA 2110/MUM/2014 AND ITA 2111/MUM/201 4 2 TO THE APPEAL NO ITA NO. 2111/MUM/2014 FOR THE ASSE SSMENT YEAR 2009-10 AS IDENTICAL ISSUES ARE INVOLVED IN BOTH THE APPEAL S. 3. THE ASSESSEE COMPANY IS MAINLY AGGRIEVED BY THE ORDERS DATED 11 TH AUGUST 2011 PASSED U/S 201 AND 201(1A) OF THE INCOME TAX ACT,1961(HEREINAFTER CALLED THE ACT) BY THE ASSESSING OFFICER (HEREINA FTER CALLED THE AO) RAISING DEMAND U/S 201 OF THE ACT OF RS. 7,41,880/- TOWARDS NON DEPOSIT OF TAX DEDUCTED AT SOURCE (HEREINAFTER CALLED TDS) TO TH E CREDIT OF CENTRAL GOVERNMENT WHICH WAS DEDUCTED BY THE ASSESSEE COMPA NY FOR THE 2 ND QUARTER OF FINANCIAL YEAR 2008-09 ON PAYMENTS MADE TO PROFESSIONALS (SEC.194J), CONTRACTORS(SEC.194C), RENT(SEC.194I), COMMISSIONS(SEC.194H) ETC I.E. OTHER THAN SALARY(SEC.192B) PAYMENTS AND INTER EST OF RS.3,17,600/- U/S 201(1A) OF THE ACT FOR NON DEPOSIT OF TDS AMOUNT WH ICH IS CONSEQUENTIAL , THUS AN AGGREGATE DEMAND OF RS.10,59,480/- IS RAISE D BY REVENUE AGAINST THE ASSESSEE COMPANY VIDE ORDERS DATED 11-08-2011 PASSE D BY THE REVENUE WHICH WAS CONFIRMED BY THE CIT(A) VIDE ORDERS DATED 28-01-2014 WHILE THE ASSESSEE COMPANY IS CONTENDING THAT THE TDS AMOUNTS ARE DULY PAID BY IT TO THE CREDIT OF CENTRAL GOVERNMENT AND NO DEMAND CAN BE RAISED AGAINST THE ASSESSEE COMPANY FOR NON DEPOSIT OF TDS DEDUCTED BY IT TO THE CREDIT OF CENTRAL GOVERNMENT. THERE IS NO APPEARANCE FROM REV ENUE DESPITE THE BENCH ALSO MAKING EFFORT THROUGH REGISTRY TO CALL FOR THE REPRESENTATIVE FROM THE OFFICE OF REVENUE TO ARGUE THE APPEAL BUT NONE APPE ARED FOR REVENUE. WE ARE PROCEEDING WITH THE APPEAL. 4. THE MAIN DISPUTE IN THIS APPEAL FILED BY THE ASS ESSEE COMPANY BEFORE US IS REGARDING NON DEPOSIT OF TDS OF RS.7,41,878/- TO TH E CREDIT OF CENTRAL GOVERNMENT WHICH WAS IN THE OPINION OF REVENUE WAS DEDUCTED BY THE ASSESSEE ON PAYMENTS MADE TO PROFESSIONALS (SEC.194 J), CONTRACTORS(SEC.194C), RENT(SEC.194I), COMMISSIONS( SEC.194H) ETC I.E. OTHER THAN SALARY(SEC.192B) PAYMENTS FOR QUARTER 2 OF FIN ANCIAL YEAR 2008-09 FOR ITA 2110/MUM/2014 AND ITA 2111/MUM/201 4 3 WHICH TDS RETURN IN FORM NO 26Q WAS FILED BY THE AS SESSEE COMPANY WITH REVENUE ON 13-10-2008 VIDE ACKNOWLEDGEMENT NUMBER 0 70383500400345 UNDER THE NAME OF THE DEDUCTOR GRAVISS HOSPITALIT Y LIMITED WITH TAN NUMBER MUMT09738B BUT AS PER REVENUE THE TDS AMOU NT OF RS.7,41,878/- WAS NOT DEPOSITED TO THE CREDIT OF CE NTRAL GOVERNMENT AND HENCE THE DEMAND U/S 201 AND 201(1A) OF THE ACT WAS RAISED ON ACCOUNT OF NON DEPOSIT OF THE AFORE-STATED TDS AMOUNT AND INTE REST BEING CONSEQUENTIAL IN NATURE ALTHOUGH TDS WAS DEDUCTED BY THE ASSESSEE COMPANY. IT IS PERTINENT TO MENTION THAT THE ASSESSEE COMPANY HAS FILED TDS RETURN UNDER THE NEW REGIME OF ELECTRONIC FILING SYSTEM. 5. THE ASSESSEE COMPANY CONTENDED THAT THE ASSESSEE COMPANY HAS DULY PAID TDS OF RS.7,41,878/- TO THE CREDIT OF CENTRAL GOVER NMENT AND THE ASSESSEE PRODUCED CHALLANS AGGREGATING TO RS.7,41,878/- BEF ORE US WHICH ARE PLACED AT PAPER BOOK AT PAGE NUMBERS 14-27 WHICH WE HAVE O BSERVED ARE PAID UNDER THE TAN NUMBER MUMT09975A FOR ASSESSMENT YEAR 200 9-10 UNDER THE NAME OF DEDUCTOR THE G L HOTELS LIMITED WHILE THE ASSESSEE COMPANY HOLDS TAN NUMBER MUMT09738B ALLOTTED BY THE REVENUE IN THE NAME OF THE ASSESSEE COMPANY GRAVISS HOSPITALITY LIMITED AND ALSO THE ASSESSEE COMPANY FILED TDS RETURN FOR QUARTER 2 OF ASSESSMEN T YEAR 2009-10 ON 13- 10-2008 IN FORM NO 26Q VIDE ACKNOWLEDGEMENT NUMBER 070383500400345 UNDER TAN NUMBER MUMT09738B UNDER THE NAME OF THE DEDUCTOR GRAVISS HOSPITALITY LIMITED WHICH IS PLACED AT PAGE NUMBER 1 OF PAPER BOOK. WE HAVE ALSO OBSERVED THAT ONE MORE TDS RETURN FOR QUARTER 2 OF ASSESSMENT YEAR 2009-10 IN FORM NO 26Q UNDER TAN NUMBER MUMT09975A UNDER THE NAME OF THE DEDUCTOR THE G L HOTELS LIMITED WAS FILED WITH REVENUE ON 21-01- 2009 VIDE ACKNOWLEDGEMENT NUMBER 070385100430050 CL AIMING CREDIT OF TDS PAYMENT OF RS.7,41,878/-. THE REVENUE HAS RAISE D AN AGGREGATE DEMAND OF RS.10,59,480/- AGAINST THE ASSESSEE VIDE ORDERS DATED 11.08.2011 U/S 201/201(1A) OF THE ACT AGAINST THE TAN NUMBER MUMT 09738B BECAUSE THE ITA 2110/MUM/2014 AND ITA 2111/MUM/201 4 4 PAYMENT OF TDS HAS BEEN MADE TO THE CREDIT OF CENTR AL GOVERNMENT AGAINST TAN NUMBER MUMT09975A AND THE TAN NUMBER MUMT097 38B UNDER WHICH RETURN IN FORM NO 26Q IS FILED IS DIFFERENT W HICH HAS LED TO MISMATCH UNDER ELECTRONIC SYSTEM OF FILING OF TDS RETURN WHE REBY PROCESSING OF THE RETURNS ARE DONE ELECTRONICALLY . THE ASSESSEE COMP ANY IS CONTENDING THAT THE SAID TWO TAN REPRESENTS TWO DIVISIONS OF THE ASSESS EE COMPANY BUT FACTS AS EMERGING FROM THE RECORDS SHOWS THAT THESE TWO TAN S ARE ALLOTTED TO TWO DIFFERENT COMPANIES NAMELY THE G L HOTELS LIMITED AND THE ASSESSEE COMPANY NAMELY GRAVISS HOSPITALITY LIMITED . THE ASSESSEE COMPANY ALSO CONTENDED THAT THE REVISED TDS RETURN FILED ON 21-0 1-2009 IS ACCEPTED BY THE REVENUE AND NO DEMAND IS RAISED BY THE REVENUE WHI CH IS FOR OBVIOUS REASONS THAT UNDER THE ELECTRONIC PROCESSING OF TDS RETURNS WHERE THE TAN NUMBER MENTIONED IN THE TDS RETURN WILL MATCH WITH TAN NUMBER IN TDS PAYMENTS CHALLANS WITH BANK, THE SYSTEM WILL ACCEPT THE SAME AND THE CREDIT MUST HAVE BEEN ALSO GIVEN TO THE DEDUCTEE BY THE RE VENUE FOR RS.7,41,878. THE ASSESSEE IS CONTENDING THAT THE THESE TWO TAN N UMBERS ARE ALLOTTED TO TWO DIVISIONS OF THE SAME COMPANY BUT PERUSAL OF TH E RECORDS SHOWS THAT THESE TWO TAN NUMBERS ARE ALLOTTED TO TWO DIFFERENT COMPANIES THEN THERE IS EVERY POSSIBILITY THAT THERE IS A CHANGE IN THE NAM E OF THE COMPANY OR RECONSTITUTION ETC OF THESE TWO COMPANIES NAMELY THE G L HOTELS LIMITED AND THE ASSESSEE COMPANY NAMELY GRAVISS HOSPITALI TY LIMITED BUT THIS SPECIAL FACT IS WITHIN THE KNOWLEDGE OF THE ASSESSE E COMPANY WHICH HAS NOT BEEN BROUGHT ON RECORD BY THE ASSESSEE COMPANY BEFO RE US OR BEFORE THE AUTHORITIES BELOW . 6. AFTER PERUSING THE MATERIAL ON RECORD , HEARING THE ASSESSEE COUNSEL AND BASED ON OUR DISCUSSIONS IN PRECEDING PARAS, WE A RE OF THE CONSIDERED VIEW THAT THE INTEREST OF JUSTICE WILL BE MET , IF THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT THE ER ROR , IF BONA-FIDE, MADE BY THE ASSESSEE COMPANY IN FILING THE TDS RETURN BE CORREC TED KEEPING IN VIEW THE ITA 2110/MUM/2014 AND ITA 2111/MUM/201 4 5 INTEREST OF THE REVENUE THAT THERE IS NO DOUBLE CRE DIT OF THE AMOUNT OF TDS OF RS.7,41,878/- TO THE DEDUCTEES ONCE THROUGH THE AS SESSEE COMPANY VIDE RETURN FILED ON 13-10-2008 AND AGAIN THROUGH G L H OTELS LIMITED VIDE TDS RETURN FILED ON 21-01-2009 . THE ASSESSEE COMPANY I S DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER AND SUBMIT COGENT EVI DENCES TO SUBSTANTIATE IN SUPPORT OF ITS CONTENTIONS WHICH SHALL BE ADMITTED BY THE ASSESSING OFFICER WHO SHALL CONSIDER THE SAME ON MERITS. NEEDLESS TO SAY THAT PROPER OPPORTUNITY OF HEARING SHALL BE GIVEN TO THE ASSESS EE COMPANY IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE. WE ORDER AC CORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE COMPANY IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. OUR DECISION IN ITA NO. 2110/MUM/2014 SHALL APPL Y MUTATIS MUTANDIS TO THE APPEAL NO ITA NO 2111/MUM/2014 AS IDENTICAL ISS UES ARE INVOLVED IN BOTH THESE APPEALS. WE ORDER ACCORDINGLY. 9. IN THE RESULT, THE BOTH THE APPEALS FILED BY THE ASSESSEE COMPANY ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH NOVEMBER, 2015. !' # $% &! ' ( ) SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ 8 MUMBAI ; &! DATED 18.11.2015 [ PS: POOJA K ITA 2110/MUM/2014 AND ITA 2111/MUM/201 4 6 ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. 9 / CIT- CONCERNED, MUMBAI 5. <=( >>?@ , ?@ , $ 8 / DR, ITAT, MUMBAI G BENCH 6. (BC D / GUARD FILE. ' / BY ORDER, < > //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 8 / ITAT, MUMBAI