M/s. Sri Lakshmi Venkateshwara Minerals, Hospet V. The Deputy Commissioner Of Income Tax, Central Circle-2(1), Bengaluru

ITA 2345/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7045 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 13-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SRINIVASAN A DVOCTE
• Keywords: TDS; Set aside
• Section: 143(3); 234B; 201; 22; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH ES : C , BANGALORE BEFORE SHRI N.V.VASUDEVAN, VICE PRESIDENT AND S HRI B.R.BASK A R A N, A CCOUNTANT MEMBER ITA NO. 2 3 4 5 ( BANG)/ 20 1 9 ( ASSESSMENT YEAR : 20 11 - 12 ) M/S SRI LAKSHMI VENKATESHWARA MINERALS, 21 ST WARD, BELLARY ROAD CIRCLE, OPP: LUCKY TYRES, HO S PET - 583 201 PAN NO. A BHFS8469H APPELLANT VS THE D EPUTY COMMISSIONER OF INCOME TAX , CIRCLE - 6(1)(2), BANGALORE RESPONDENT APPELLANT BY : S HRI V. SRINIVASAN, A DVOCTE RE VENUE BY : SHRI PRADEEP KUMAR, C IT DATE OF HEARING : 2 9 - 0 1 - 20 20 DATE OF PRONOUNCEMENT : 05 - 02 - 2020 O R D E R PER SHRI N.V.VASUDEVAN, VICE PRESIDENT : THIS IS AN APPEAL BY THE AS S ESSEE A GAINST THE ORDER DATED 30 - 08 - 2019 OF CIT(A) - 11, BENGALURU RELATING TO ASSESSMENT YEAR 2011 - 12. 2. THE ASSESSEE IS A PARTNERSHIP FIRM E NGAGED IN THE BUSINESS OF TRADING IN IRON ORE. FOR THE ASSESSMENT YEAR 2011 - 12 A N ASSESSMENT U/S 143(3) R.W.S.153C OF THE INCOME TAX ACT, 1961 ( ACT ) WAS PASSED ON 31 - 03 - 2013. AG AINST THE ADDITIONS MADE IN TH E A FORESAID ORDER OF ASSESSMENT T HE ASESSSEE PREFERRED APPEAL BEFORE TH E CIT(A) . T HE CIT(A) BY ORDER DATED 16 - 12 - 2014 DISMIS S ED THE APPEAL OF THE ASSESSEE IN LIMINE ON THE GROUND THAT AS ITA NO.2 345( BANG/201 9 2 PER SEC.249 (4)(A) OF THE ACT, THE ASSESSEE WAS REQUIRED TO PAY TAXES DUE ON THE INCOME DECLARED BY IT IN THE RETURN OF INCOME FOR THE RELEVANT AS SES S MEN T YEAR A ND SINCE THE ASSESSEE DID NOT PAY TAXES AS SO REQUIRED , APPEAL TO THE CIT(A) WAS NOT MAINTAINABLE AND ACCORDINGLY, THE SAME WAS DISMISSED. TH E ASSESSEE PREFERRED APPEAL AGAINST THE AFORESAID ORDER OF CIT(A) DATED 16 - 12 - 2014 BEFORE THE HONBLE ITAT. THE HONBLE ITAT IN ITA NO.478(B)/2015 DATED 24 - 08 - 2017 DIRECTED CIT(A) TO VERIFY THE CLA I M OF THE ASSESSEE THAT A SUM OF RS.5.00 CRORES RECOVERED FROM LAKSHMI VILAS BANK ACCOUNT BELONGING TO M/S BHAKTA MARKANDESHWARA MINERALS, A GROUP CONCERN OF THE ASSESSEE WAS AVAILABLE FOR ADJUSTMENT AGAINST THE TAX DUE ON THE INCOME DECLARED BY THE ASSESSEE IN ITS RETURN OF INCOME. 3. IN THE SET ASIDE PROCEEDINGS BEFORE THE CIT(A), TH E CIT(A) CALLED FOR COMMENTS FROM THE AO REGARDING AVAILABILITY OF A SUM OF RS.5.00 C RORES RECOVERED FROM LAKSHMI VILAS BANK ACCOUNT BELONGING TO M/S BHAKTA MARKANDESHWARA MINERALS, A GROUP CONCERN OF THE ASSESSEE WAS AVAILABLE FOR ADJUSTMENT AGAINST THE TAX DUE ON THE INCOME DECLARED BY THE ASSESSEE IN ITS RETURN OF INCOME. THE AO VIDE L ETTER DATED 27 - 03 - 2018 REPORTED THAT NO A MOUNT SEIZED IN THE CASE OF M/S BHAKTA MARKANDESHWARA MINERALS, A GROUP CONCERN OF THE ASSESSEE W A S AVAILABLE FOR SET OFF. BASED ON THE A BOVE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AS UN - ADMITTED AS TAX ON T HE INCOME DECLARED IN THE RETURN OF INCOME HAS NOT BEEN PAID BY THE ASSESSEE. AGAINST THE AFORESAID ORDER OF THE CIT(A) T HE A SSESSEE HAS PREFERRED THIS PRESENT APPEAL BEFORE THE TRIBUN A L. 4 . WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD.COUNSEL FO R THE A SSESSEE BOUGHT TO OUR NOTICE THAT T A X PAY A BLE ON THE RETURNED INCOME AFTER ADVANCE TAX AND PREPAID TAX WAS A SUM OF RS.41,45,000/ - . HE BROUGHT TO OUR NOTICE THE TDS TRACES FILED BEFORE US, WHICH SHOWS THE FOLLOWING PAYMENTS BY THE ASSESSEE NAMELY A SUM OF RS.2,50,377/ - , RS.49,443/ - AND RS.30,506/ - ON 16 - 03 - 2018. HE ALSO BROUGHT TO OUR NOTICE PAYMENTS OF RS.7,24,000/ - ,RS.9.00 ITA NO.2 345( BANG/201 9 3 LAKHS , RS.9.00 LAKHS AND RS.1,50,000/ - AND ANOTHER SUM OF RS.1,50,000/ - ON 22 - 02 - 2018. ACCORDING TO HIM, THE AFORES AID PAYMENTS WHICH TOTALS A SUM OF RS.25,24,000/ - +RS.1,50,000+ 3, 30, 32 6/ - AND ANOTHER PAYMENT OF RS.11,20,000/ - ON 23 - 03 - 2018 AND RS.21,000/ - ON 06 - 04 - 2018 WOULD COMP LETELY DISCHARGE T AXES PAYABLE ON THE INCOME DECLARED IN THE RETURN OF INCOME AND THEREFORE , THE APPEAL OF THE ASSESSEE OUGHT TO BE ADMITTED AND THE CIT(A) HAS TO BE DIRECTED TO HEARD AND DECIDE THE APPEAL ON MERITS TREATING THE APPEAL AS VALIDLY INSTITUTED. THE LEARNED DR SUBMITTED THAT THE CLAIM OF THE ASSESSEE REQUIRES VERIFICATION. 5 . W E HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE POSITION OF TAXES FILED BY THE ASSESSEE AS PER TDS TRACES AS FOLLOWS; INCOME RETURNED RS.3,01,29,440 TAX LIABILITY ON THE ABOVE R S. 93,09,997 LESS: ADVANCE TAX & TDS RS. 60,86,494 RS. 32,23,503 ADD: INTEREST U/S 234A, 234B & 234C RS. 9,21,498 SELF ASSESSMENT PAYABLE U/S 140A RS. 41,45,000 LESS: ADJUSTED IN LAKSHMI VILAS BANK BELONGING TO SRI RAM MINERALS AFTER SEVERAL REQUESTS (7,24,000 + 9,00,000 + 9,00,000 ) ON 03 - 10 - 2017 RS. 25,24,000 RS. 16,21,000 LESS : PAID ON 22/02/2018 RS. 1,50,000 RS. 14,71,000 LESS: RECOVERED FROM BANKS ON 05/03/2018 RS. 3,30,326 RS. 11,40,674 RS. 11,20,000 LESS: PAID ON 05/04/2018 RS. 20,674 RS. 21,000 BALANCE PAYABLE RS. NIL 6. WE ARE OF THE VIEW THAT IF THE TAX DUE ON RETURNED INCOME AS CLAIMED BY THE ASSESSEE HAS BEEN PAID , THEN THE APPEAL SHOULD BE ADJUDICATED ON MERITS. WE THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE CIT(A) TO VERIFY THE CLAIM OF THE ASSESSEE AND IF FOUND CORRECT DIRECT THE CIT(A) TO ITA NO.2 345( BANG/201 9 4 ADMIT THE APP E AL AND ADJUDICATE VARIOUS G R OUNDS RAISED BEFORE HIM ON MERITS AFTER DUE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPE A L OF THE A SSESSEE IS T REATED A S ALLOWED FOR STATISTICAL PURPOSE S . O RD ER PRONOUNCED IN THE OPEN COURT ON 5 TH FEBRUARY, 2020. SD/ - SD/ - ( B .R.BASK A RAN ) ( N.V.VASUDEVAN ) ACCOUNTANT MEMBER VIC E PRESIDENT DATED: 05 - 02 - 2020 *AM COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5. DR 6. ITO (TDS) 7.GUARD FILE BY ORDER ASST. REGISTRAR