J.P tobaco Products Pvt. ltd., V. Assistant Commissioner of income tax,

ITA 229/JAB/2015

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 7992 (ITAT-JABALPUR)
• Duration Of Justice: 3 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 30-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment; TDS
• Section: 194C; 201(1); 195; 201; 192; 194J; 194A; 6

Judgement Text

I.T.A. NO. 229 /JAB/201 5 I.T.A. NO. 230/JAB/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO S . 229 & 230 /JAB/201 5 F. Y . :20 07 - 08 & 2008 - 09(26Q - 4 TH QTR) ASSESSMENT YEAR S 2008 - 09 & 2009 - 10 J.P. TOBACCO PRODUCTS PVT. LTD., PATHARIA PHATAK, DAMOH. (M.P.) [ T AN : JPBJ 00523F ] V S. A SSISTANT C OMMISSIONER OF I NCOME T AX (TDS) , JABALPUR (APPELLANT) (RESPONDENT) O R D E R P ER S ANJAY ARORA, A M : THIS IS A SET OF TWO A PPEAL S BY THE A SSESSEE , ARISING OUT OF A COMMON O RDER U NDER SECTION 250( 6 ) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE L D. COMMISSIONER OF INCOME TAX ( APPEALS ) - 1, JABALPUR ( CIT (A ) FOR SHORT) DATED 12 .0 8 . 201 5 , DISMISSING THE ASSESSEES APPEALS CONTESTING THE ORDER S U/S S. 201(1) & 201(1A) BY THE ASSESSING OFFICER (AO) FOR F INANCIAL YEAR S ( F . Y S . ) 2007 - 0 8 AND 2008 - 09 OF EVEN DATE , I.E. , 30.03.2011. 2. ADVERTING TO ANNEXURE - A TO THE ASSESSMENT ORDERS UNDER REFERENCE , UPON PLACING COPIES THEREOF ON RECORD, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, SHRI PROHIT, SR. ADVOCATE, THAT THE SAME ARE IN RESPECT OF ALL EGED APPELLANT BY SHRI G.N. PUROHIT, SR. ADVOCATE RESPONDENT BY SHRI I.B. KHANDEL, SR. DR DATE OF HEARING 10 /12/2019 DATE OF PRONOUNCEMENT 24 /12/2019 I.T.A. NO. 229 /JAB/201 5 I.T.A. NO. 230/JAB/2015 2 DEFAULT/S IN DEPOSITING TAX DEDUCTED AT SOURCE IN MAY, 2008 AND MAY, 2009, I.E., FOR F.Y. 2007 - 08 AND 2008 - 09 RESPECTIVELY, ON SUMS PAID BY THE ASSESSEE TO THE RESPECTIVE CREDITORS (PAYEES) ON THE LAST DAY OF THE RELEVANT PREVIOUS YEAR/S, I.E., 31.03. 2008 AND 31.03.2009. THE SAME IN FACT IS ALSO THE DATE/S OF CREDIT TO THE ACCOUNT OF THE SAID CREDITORS, AS APPARENT FROM THE S TATEMENT OF F ACTS FILED BY THE ASSESSEE ALONG WITH THE MEMO OF THE RESPECTIVE APPEALS PREFERRED BEFORE THE FIRST APPELLATE AUTH ORITY. THE TIME FOR PAYMENT OF TAX DEDUCTED AT SOURCE IN SUCH A CASE IS UP TO TWO MONTHS FROM THE DATE OF THE CREDIT, I.E., 31 ST DAY OF MAY OF THE FOLLOWING YEAR, OR , 31.5.2008 AND 31.5.2009 FOR F.YS. 2007 - 08 AND 2008 - 09 RESPECTIVELY (RULE 30 (1) ( B)(I)(1)), WHILE THE TDS, AS AGAIN MANIFEST FROM THE ANN. A, HAS BEEN FOR BOTH THE YEARS DEPOSITED ON 28 TH MAY AND, THUS, WITHIN TIME. THERE WAS THEREFORE NO BASIS FOR THE IMPUGNED DEMANDS. TAKING US THROUGH THE SAID RULE, HE EXPLAINED THAT THE SAME WAS AM ENDED BY I.T. ( F IRST A MENDMENT) RULES, 2010, WITH RETROSPECTIVE EFFECT FROM 01.4.2009, REDUCING THE TIME PERIOD FOR THE DEPOSIT/PAYMENT OF THE TAX DEDUCTED AT SOURCE TO THE CREDIT OF THE CENTRAL GOVERNMENT IN SUCH A CASE TO ONE WEEK, WHICH WOULD THEREFORE HAVE NO APPLICATION FOR THE YEARS UNDER REFERENCE, BEING PRIOR TO 01/4/2009.THE LD. SR. DR COULD NOT DISPUTE THE STATED POSITION, EITHER ON FACTS OR IN LAW. 3 . WE HAVE HEARD THE PARTIES , AND PERUSED THE MATERIAL ON RECORD. RULE 30 (1) (B)(I)(1) OF THE INCOME TAX RULES , 1962(THE RULES HEREINAFTER), AS IT STOOD PR IOR TO AMENDMENT BY I.T. ( F IRST A MDT . ) RULE S 2010, READS AS UNDER: 30. TIME AND MODE OF PAYMENT TO GOVERNMENT ACCOUNT OF TAX DEDUCTED AT SOURCE OR TAX PAID UNDER SUB - SECTION (1A) OF SECTION 192 - (1) ALL SUMS DEDUCTED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 192 TO 194, SECTION 194A. SECTION 194B, SECTION 194BB, SECTION 194C, SECTION 194D , SECTION 194E, SECTION 194EE, SECTION 194F, SECTION 194G, SECTION 194H, SECTION 194I, SECTIO N 194J, SECTION 194K, SECTION 194LA, SECTION 195, SECTION 196A, SECTION 196B, SECTION 196C AND SECTION 196D SHALL BE PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT I.T.A. NO. 229 /JAB/201 5 I.T.A. NO. 230/JAB/2015 3 (A) IN THE CASE OF DEDUCTION BY OR ON BEHALF OF THE GOVERNMENT, ON THE SAME DAY; (B) IN TH E CASE OF DEDUCTION BY OR ON BEHALF OF PERSONS OTHER THAN THOSE MENTIONED IN CLAUSE (A), (I) IN RESPECT OF SUMS DEDUCTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 193, SECTION 194A, SECTION 194C, SECTION 194D, SECTION 194E, SECTION 194G 194H, SECTION 194 - I, SECTION 194J, SECTION 195, SECTION 196A, SECTION 196B, 196C AND SECTION 196D (1) WHERE THE INCOME BY WAY OF INTEREST ON SECURITIES REFERRED TO IN SECTION 193 OR THE INCOME BY WAY OF INTEREST REFERRED TO IN SECTION 194A OR THE SUM REFERRED TO IN SECTION 194C OR THE INCOME BY WAY OF INSURANCE COMMISSION REFERRED TO IN SECTION 194D OR THE PAYMENT TO NON - RESIDENT SPORTSMEN OR SPORTS ASSOCIATIONS REFERRED TO IN SECTION 194E OR THE INCOME BY WAY OF COMMISSION, REMUNERATION OR PRIZE ON SALE OF LOTTERY T ICKETS REFERRED TO IN SECTION 194G OR THE INCOME BY WAY OF COMMISSION OR BROKERAGE REFERRED TO IN SECTION 194H OR THE INCOME BY WAY OF RENT REFERRED TO IN SECTION 194 - I OR THE INCOME BY WAY OF FEES FOR PROFESSIONAL OR TECHNICAL SERVICES REFERRED TO IN SECT ION 194J OR THE INTEREST OR ANY OTHER SUM REFERRED TO IN SECTION 195 OR THE INCOME OF A FOREIGN COMPANY REFERRED TO IN SUB - SECTION (2) OF SECTION 196A OR THE INCOME FROM UNITS REFERRED TO IN SECTION 196BO R THE INCOME FROM FOREIGN CURRENCY BONDS OR SHARES O F AN INDIAN CO MPANY REFERRED TO IN SECTION 196C OR THE INCOME OF FOREIGN INSTITUTIONAL I NVESTORS FROM SECURITIES REFERRED TO IN SECTION 196D IS CREDITED BY A PERSO NTO THE ACCOUNT OF THE PAYEE AS ON THE DATE UP TO WHICH THE ACCOUNTS OF SUCH PERSON ARE MADE, WITHIN TWO MONTHS OF THE EXPIRATION OF THE MONTH IN WHICH DATE FALLS . (2) IN ANY OTHER CASE, WITHIN ONE WEEK FROM THE LAST DAY OF THE MONTH IN WHICH THE DEDUCTION IS MADE; AND (II) IN RESPECT OF SUMS DEDUCTED IN ACCORDANCE WITH T HE OTHER PROVISIONS WITHIN ONE WEEK FROM THE LAST DAY OF THE MONTH IN WHICH THE DEDUCTION IS MADE. PROVIDED THAT THE ASSESSING OFFICER MAY, IS SPECIAL CASES, .. (EMPHASIS, BY ITALICS, OURS) THE ASSESSEE PER THE STATEMENT OF FACTS BEFORE THE FIRST APPELL ATE AUTHORITY HAS CLAR IFIED THAT THE CREDIT S TO THE RESPECTIVE ACCOUNTS OF THE PAYEES,FOR BOTH THE YEARS, WERE ON THE LAST DAY OF THE ACCOUNTING YEAR, WHICH STATEMENT HAS NOT BEEN REFUTED OR REBUTTED , INCLUDING BEFORE US . THERE IS IN FACT NOTHING TO DOUBT THE SAME . IT IS, THUS, ABUNDANTLY CLEAR THAT THE ASSESSEE WAS REQUIRED TO DEPOSIT THE TAX DEDUCTED AT SOURCE U/S S. 194A, 194C, 194H AND 194J , I.E. , THE SECTION S I.T.A. NO. 229 /JAB/201 5 I.T.A. NO. 230/JAB/2015 4 UNDER WHICH THE PAYMENTS SUBJECT TO TAX DEDUCTION AT SOURCE F E LL IN THE INSTANT CASE, BY 31 / 5 / 2 008 AND 31/5/2009 FOR CREDITS ON 31/3/ 20 08 AND 31/3/200 9 RESPECTIVELY. THE DEPOSIT OF TAX DEDUCTED AT SOURCE FOR BOTH THE YEARS UNDER REFERENCE AS PER ANNEXURE - A SUPRA AND , THUS, ADMITTEDLY , I S ON 2 8 TH MAY OF THE FOLLOWING YEAR , I . E., BEFORE THE DUE DATE/S. THE ASSESSEE COULD NOT POSSIBLY BE RE GA RDED AS IN DEFAULT FOR THE SAME. NO DEMAND U/S . 201(1) ,AND CONSEQUENTLY TOWARD INTEREST U/S . 201(1A) , WOULD ARISE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE IMPUGNED DEMAND S ARE ACCORDINGLY DIRECTED FOR CANCELLA TION. WE DECIDE ACCORDINGLY. 4 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COU RT ON DECEMBER 24 , 2019 SD/ - SD/ - (B HAVNESH SAINI ) (S ANJAY A RORA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 24 /12/2019 AKS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT : J.P. TOBACCO PRODUCTS PVT. LTD.,PATHARIAPHATAK,DAMOH. (M.P.) 2. THE RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TAX (TDS),JABALPUR 3. THE CIT CONCERNED 4. THE CIT(A) - 1, JABALPUR 5. THE SR. D.R., I.T.A.T.