M/s APPLE INTERNATIONAL LTD., Indore V. The ITO TDS-II, Indore

ITA 236/IND/2014

• Counselvise Citation: 23622714 RSA 2014
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S DESHPANDE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NOS. 236 TO 238/IND/2014 A.Y. : 2008-09 TO 2010-11 M/S.APPLE INTERNATIONAL LIMITED, INDORE VS. ITO TDS II, INDORE. APPELLANT RESPONDENT PAN NO. : AAMFA3199A APPELLANT BY : SHRI S.S.DESHPANDE, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 09 . 0 6 .201 5 DATE OF PRONOUNCEMENT : 09 . 0 6 .201 5 -: 2: - 2 O R D E R PER BENCH THESE THREE APPEALS ARE FILED BY THE ASSESSEE AGAIN ST THE ORDERS OF CIT(A)-II, INDORE, ALL DATED 31.12.2013 FOR THE ASSESSMENT YEARS 2008-09 TO 2010-11. 2. THE ASSESSEE IS A PARTNERSHIP FIRM DOING THE BUSINE SS OF ENTERTAINMENT ARCADE AND ALLIED ACTIVITIES. THE FIRM IS REGULARLY FILING ITS RETURNS FOR LAST MANY YEARS. T HE FIRM HELD A PIECE OF LAND ACQUIRED FROM IDA ON LEASE. THE ASSES SEE HAS PAID LEASE RENT TO IDA, BUT NO TDS WAS DEDUCTED. TH EREFORE, THE AO HAS RAISED THE DEMAND OF TDS WITH INTEREST F OR ASSESSMENT YEARS 2008-09 , 2009-10 AND 2010-11. 3. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) DISMISSED THE APPEALS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON REC ORD. WE FOUND THAT THE LD. CIT(A) DISMISSED THE APPEALS AND THE AND THE ASSESSING OFFICER HAS ALSO NOT VERIFIED WHETHE R THE -: 3: - 3 AMOUNTS OF TDS SHORT DEDUCTED AT SOURCE WAS THERE O R NOT. THE AO HAS ALSO NOT VERIFIED WHETHER THERE IS ANY S HORT DEDUCTION OF TAX ON THE PAYMENTS WHICH ARE SHOWN IN THE ASSESSMENT ORDERS AND WITHOUT VERIFYING THE SAME, T HE AO HELD THAT THE ASSESSEE WAS IN DEFAULT U/S 201(1)/20 1(1A) OF THE INCOME-TAX ACT, 1961. AFTER HEARING THE RIVAL SUBMISSIONS, WE NOTED THAT THE CASE OF THE ASSESSEE IS DULY COVE RED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. ELI LILLY & CO. (INDIA) (P) LTD. (2009) 312 ITR 225 (SC ), WHEREIN, IT HAS BEEN HELD THAT THE PERIOD OF DEFAULT STARTS FRO M DATE OF DEDUCTIBILITY OF TAX TILL DATE OF ITS ACTUAL PAYMEN T BY THE CONCERNED EMPLOYEE AND ALSO IN THE CASE OF M/S. HIN DUSTAN COCA COLA BEVERAGE PVT. LTD. VS. CIT (2007) 293 ITR 226 (SC), WHEREIN, IT HAS BEEN HELD THAT WHEN THE TAX HAS BEE N PAID BY THE DEDUCTEE-ASSESSEE, THE TAX COULD NOT BE RECOVER ED ONCE AGAIN FROM THE ASSESSEE. ALL FACTS ARE NOT BORNE OU T FROM THE ASSESSMENT ORDERS. THEREFORE, IN THE INTEREST OF JU STICE AND FAIR PLAY, WE RESTORE THIS MATTER BACK TO THE FILE OF AO WITH THE DIRECTION THAT THE AO SHALL VERIFY WHETHER THE PAYM ENT SHOWN IN THE ASSESSMENT ORDER IS LIABLE FOR TDS OR NOT. S ECONDLY, IF -: 4: - 4 THERE IS ANY SHORT DEDUCTION OF TAX OR NOT AND IF T HERE IS ANY SHORT DEDUCTION OF TAX THAN THE RECEIPT AND THE PAY EE HAS PAID THE TAX OR NOT AND THEY HAVE SHOWN IN THE RETURN OF INCOME HAS TO BE VERIFIED FROM THE CONCERNED ASSESSES. THE REFORE, THIS ALL REQUIRES VERIFICATION AT THE END OF AO. THE AO SHOULD HAVE VERIFIED THESE FACTS BEFORE MAKING THE ASSESSMENT A ND SHOULD HAVE ALSO DONE THIS EXERCISE. WE FOUND THAT THE AO HAS FAILED TO DO SO. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE BACK THIS ISSUE TO THE FILE OF AO AND THE A O IS DIRECTED TO VERIFY WHETHER ANY SHORT DEDUCTION OF TAX OR NOT AND WHETHER THE ASSESSEE IS LIABLE FOR INTEREST OR NOT AND WHETHER THE DEDUCTEE HAS PAID TAX OR NOT. THE ASSESSEE IS D IRECTED TO COOPERATE WITH THE AO AND HE MUST PRODUCE ALL THE R ELEVANT EVIDENCE BEFORE THE AO AND THE AO IS FURTHER DIRECT ED TO VERIFY THE SAME AND DECIDE THE MATTER AFRESH KEEPING IN MI ND THE DECISIONS OF HON'BLE SUPREME COURT IN THE CASE OF C IT VS. ELI LILLY & CO. (INDIA) (P) LTD AND HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT (SUPRA). -: 5: - 5 5. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATISTI CAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 9 TH JUNE, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 9 TH JUNE, 2015. CPU* 910