The Sr. Manager (Accounts), Kalinga Gramya Bank, Cuttack V. ITO TDS, Cuttack

ITA 228/CTK/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65195 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 13-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2012
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: P K MOHAPATRA
• Section: 194C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 228/CTK/2012 / ASSESSMENT YEAR 2008 - 09 THE SENIOR MANAGER (ACCOUNTS) , KALINGA GRAMYA BANK, MAHANADI VIHAR, CUTTACK 4 PAN: AAAAK 557 F - - - VERSUS - INCOME - TAX OFFI CER, TDS , CUTTACK. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.K.MOHAPATRA, AR / FOR THE RESPONDENT: / SHRI S.C.MOHANTY, DR / DATE OF HEARING: 13.12.2012 / DATE OF PRONOUNCEMENT: 21.12.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT.27.1.2012 CONFIRMING THE ORDER OF THE ITO(TDS) DT.31.3.2010 PASSED U/S.201(1) AND 201(1A) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2008 - 09. 2. WHILE PROCESSING THE E - TDS RETURNS/STATEMENTS FOR THE SECOND AND THIRD QUARTER OF F.Y. 2007 - 08, THE ITO(TDS) FOUND THE ASSESSEE TO HAV E DEDUCTED LESS TAX TOTALING 21,028, ON THE PAYMENTS TO DIFFERENT CONCERNS AS TABULATED IN HIS ORDER AS PROFESSIONAL FEES U/S.194A, WHICH HE CORRECTED AS U/S.194J. VIDE THE IMPUGNED ORDER, THE ITO(TDS) THEREFORE, DEMANDED THE TAX FOUND DEDUCTED SHORT OF 21,028 U/S.201 AND ALSO LEV IED INTEREST U/S.201(1A) OF THE I.T. ACT. 3. AGGRIEVED, THE ASSESSEE APPEALED BEFORE THE FIRST APPELLATE AUTHORITY. IT WAS CONTENDED BY THE ASSESSEE INTER ALIA THAT THE ASSESSEE HAD DEDUCTED TDS AT LOWER RATE OF 5% U/S.194J I.E., THE RATE OF EARLIER YEAR, ON THE PAYMENTS MADE TO 10 C.A.FIRMS. IT WAS ALSO CONTENDED THAT THE C.A.FIRMS HAVE FILED THEIR INCOME - TAX RETURNS FOR THE ASSESSMENT YEAR 2008 - 09 SHOWING THE AMOUNT RECEIVED FROM THE ASSESSEE AUDIT FEES. THEY HAVE ALSO I.T.A.NO. 228/CTK/2012 2 UTILISED THE TDS CERTIFICATES SO ISS UED BY THE ASSESSEE SHOWING DEDUCTION @5% OF THE PAYMENTS. BUT ON THE OBSERVATION THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE SUBSTANTIATING THE ABOVE CLAIM AND FOR THAT MATTER RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. CALCU TTA AGENCY LTD.,[ 19 ITR 191 (SC)], THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN DEMANDING THE SHORT DEDUCTION OF TAX AMOUNT U/S.201 ALONG WITH THE INTEREST THEREOF U/S.201(1A) OF THE I.T.ACT. HENCE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED COUNSEL OF THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE RAISED BEFORE THE LEARNED CIT(A) WHEREAS THE LEARNED DR SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES. IT IS NOT DISPUTED TH AT THE ASSESSEE HAS DEDUCTED TAX @5% ON THE ABOVE PAYMENTS I.E., AT THE RATE AS WAS APPLICABLE PRIOR TO 1. 6 .2007 WHEN SUCH RATE WAS SUBSTITUTED TO 10% BY FINANCE ACT,2007 W.E.F. 1.6.2007. BE THAT AS IT MAY, IT IS THE CONTENTION OF THE ASSESSEE THAT THE PA YEES BEING THE CHARTERED ACCOUNTANTS HAVE CERTIFIED TO HAVE RECEIVED THE AMOUNT PAID BY THE ASSESSEE WHICH THEY HAVE INCLUDED IN THEIR TOTAL INCOME OF THE FIRM, WHICH CERTIFICATES AND COPIES OF THE ACKNOWLEDGEMENTS FOR FILING OF RETURNS BY THE RESPECTIVE P ARTIES, SO OBTAINED HAVE BEEN PRODUCED BY THE LEARNED COUNSEL OF THE ASSESSEE BEFORE US AS OF NOW. HONBLE GUJARAT HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. RISHIKESH APARTMENTS CO - OPERATIVE HOUSING SOCIETY LTD. (2002) 253 ITR 310 (GUJ) , ON THE FACTS THAT THE ASSESSEE - SOCIETY DID NOT DEDUCT ANY AMOUNT OF TAX WHICH IT WAS REQUIRED TO DED UCT AS PER THE PROVISIONS OF SECTION 194C . PAYEE - CONTRACTOR HAD HOWEVER, PAID ADVANCE TAX AS WELL AS TAX ON SELF - ASSESSMENT WITH RESPECT TO THE AMOUNT RECEIV ED BY IT FROM THE ASSESSEE - SOCIETY . IN SUCH CIRCUMSTANCE, HONBLE HIGH COURT HAS HELD THAT T HERE IS NO QUESTION OF LEVYING ANY INTEREST ON THE ASSESSEE AS THE AMOUNT WHICH WAS PAYABLE TO THE REVENUE HAD BEEN DULY PAID . IN THE PRESENT CASE AT HAND, THE PAYE ES HAVE CERTIFIED TO HAVE RECEIVED THE AMOUNT PAID BY THE ASSESSEE AS PROFESSIONAL FEES AND INCLUDED IN THEIR INCOME - TAX RETURN GIVING THEIR RESPECTIVE PERMANENT ACCOUNT NUMBERS AND IF THAT BE SO , IN THE LIGHT OF THE ABOVE DECISION WHICH HAS ALSO BEEN CONF IRMED BY THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT [2007] 293 ITR 226 (SC) , THE DEMAND OF THE TAX SHORT I.T.A.NO. 228/CTK/2012 3 DEDUCTED BY THE ASSESSEE U/S.201 AND LEVY OF INTEREST U/S.201(1A) THERE UPON WOULD NOT BE JUSTIFIED , SINCE CO NSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THERE IS NO LOSS OF TAX TO THE REVENUE . HOWEVER, SINCE THE ASSESSEE HAS PRODUCED THE EVIDENCE SUBSTANTIATING ITS CLAIM FOR THE FIRST TIME BEFORE THE TRIBUNAL, WE FEEL IT PROPER TO SET ASIDE THE IMPUGNED ORD ER OF THE LEARNED CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECID ING THE ISSUE AFRESH IN THE LIGHT OF THE ABOVE DECISION OF HONBLE GUJARAT HIGH COURT UPON EXAMINING THE EVIDENCES PRODUCED BY THE ASSESSEE , AND PASS NECESSARY CO NSEQUENTIAL ORDER IN ACCORDANCE WITH LAW, OF COURSE EXTENDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO PRODUCE THE EVIDENCES IN SUPPORT OF ITS CLAIM BEFORE THE ASSESSING OFFICER AND COOPERATE WITH THE ITO(TDS) IN THIS MATTER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 21.12.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : THE SENIOR MANAGER (ACCOUNTS), KALINGA GRAMYA BANK, MAHANADI VIHAR, CUTTACK 4 2 / THE RESPONDENT: INCOME - TAX OFFICER, TDS , CUTTACK. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 17.12.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFOR E THE DICTATING MEMBER 18.12.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.12.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE A SSISTANT REGISTRAR FOR SIGNATURE ON THE ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.