Deputy Commissioner of Income Tax, TDS, Jabalpur V. Jabalpur Municipal Corporation, Jabalpur

ITA 249/JAB/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1073 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 6 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 27-11-2013
• Court: TRIBUNAL
• Department Lawyers: V B SARGAR
• Assessee Lawyers: NEERAJ AGRAWAL; PRANAV AGRAWAL
• Keywords: TDS
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NOS. 247, 248 & 249/JAB/2013 A.YS. : 2010-11, 2011-12 & 2012-13 DY. CIT,(TDS), JABALPUR VS. JABALPUR MUNICIPAL CORPORATION, INDORE. APPELLANT RESPONDENT PAN NO. : AAALN0404B APPELLANT BY : SHRI V.B.SA R GAR, DR RESPONDENT BY : SHRI NEERAJ AGRAWAL AND SHRI PRANAV AGRAWAL DATE OF HEARING : 28 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 28 . 0 5 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THESE THREE APPEALS OF THE REVENUE ARE DIRECTED AGA INST THE CONSOLIDATED ORDER PASSED BY THE CIT(A)-I, JABA LPUR, DATED 29 TH AUGUST, 2013, RELATE TO ASSESSMENT YEARS 2010-11 T O 2012-13. 2. COMMON GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN ALL THESE APPEALS EXCEPT CHANGE IN AMOUNT. HOWEVER, FOR THE BREVITY, WE ARE REPRODUCING THE GROUNDS TAKEN IN I. T.A.NO. 247/JAB/2013 . 1) THE LD. CIT(A) ERRED IN FACTS AND IN LAW IN GRANTIN G RELIEF OF RS. 16,78,38,558/- RAISED U/S 201(1) AND INTEREST THEREON AT RS. 7,21,70,592/- U/S 201(1A). 2) THE LD. CIT(A) ERRED IN FACTS AND IN LAW IN ADMITTI NG FRESH EVIDENCES IN APPELLATE PROCEEDINGS IN VIOLATI ON OF RULE 46A OF INCOME TAX RULES,1962, WHEN SUFFICIENT OPPORTUNITY WAS PROVIDED TO THE ASSESSEE IN COURSE OF PROCEEDINGS U/S 201(1)/201(1A). 3. THE LD. CIT(A) AND THE AO HAVE NOT VERIFIED WHETHER THE AMOUNT OF TDS SHORT DEDUCTED AT SOURCE WAS THER E OR NOT. -: 3: - 3 THE AO HAS ALSO NOT VERIFIED WHETHER THERE IS SHORT DEDUCTION OF TAX ON THE PAYMENTS WHICH ARE SHOWN IN THE ASSES SMENT ORDERS AND WITHOUT VERIFYING THE SAME, THE AO HELD THAT THE ASSESSEE WAS IN DEFAULT U/S 201(1)/201(1A) OF THE I NCOME-TAX ACT, 1961. 4. THE MATTER CARRIED TO THE LD. CIT(A), WHO ALSO DID NOT CALL FOR REMAND REPORT FROM THE AO AND HE HAS ALLOW ED THE APPEAL WITHOUT GIVING PROPER REASONS AND WITHOUT VE RIFYING WHETHER THE ASSESSEE WAS LIABLE FOR TDS AND WHETHER THERE WAS ANY SHORT DEDUCTION OF TAX AT SOURCE AND WHETHE R THE ASSESSEE IS ENTITLED FOR PAYMENT OF INTEREST ON SUC H RATE OF TDS OR NOT. 5. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUS ED THE MATERIAL AVAILABLE ON RECORD. AFTER HEARING TH E RIVAL SUBMISSIONS AND GOING THROUGH THE ORDERS OF THE TAX AUTHORITIES, WE NOTED THAT THE CASE OF THE ASSESSEE IS DULY COVERED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILLY & CO. (INDIA) (P) LTD. (2 009) 312 ITR 225 (SC), WHEREIN, IT HAS BEEN HELD THAT THE PERIOD OF DEFAULT STARTS FROM DATE OF DEDUCTIBILITY OF TAX TILL DATE OF ITS ACTUAL -: 4: - 4 PAYMENT BY THE CONCERNED EMPLOYEE AND ALSO IN THE C ASE OF M/S. HINDUSTAN COCA COLA BEVERAGE PVT. LTD. VS. CIT (2007) 293 ITR 226 (SC), WHEREIN, IT HAS BEEN HELD THAT WH EN THE TAX HAS BEEN PAID BY THE DEDUCTEE-ASSESSEE, THE TAX COU LD NOT BE RECOVERED ONCE AGAIN FROM THE ASSESSEE. ALL FACTS A RE NOT BORNE OUT FROM THE ASSESSMENT ORDERS AND THE LD. CI T(A) HAS ALSO NOT VERIFIED THE SAME. THEREFORE, IN THE INTER EST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS MATTER BACK TO THE F ILE OF AO WITH THE DIRECTION THAT THE AO SHALL VERIFY WHETHER THE PAYMENT SHOWN IN THE ASSESSMENT ORDER IS LIABLE FOR TDS OR NOT. SECONDLY, IF THERE IS ANY SHORT DEDUCTION OF T AX OR NOT AND IF THERE IS ANY SHORT DEDUCTION OF TAX THAN THE REC EIPT AND THE PAYEE HAS PAID THE TAX OR NOT AND THEY HAVE SHOWN I N THE RETURN OF INCOME HAS TO BE VERIFIED FROM THE CONCER NED ASSESSES. THEREFORE, THIS ALL REQUIRES VERIFICATION AT THE END OF AO. THE ASSESSEE IS JABALPUR MUNICIPAL CORPORATION AND IT IS A SEMI-GOVERNMENT INSTITUTION AND THE AO AND LD. CI T(A) SHOULD HAVE VERIFIED THESE FACTS BEFORE MAKING THE ASSESSMENT AND LD. CIT(A) SHOULD HAVE ALSO DONE THIS EXERCISE. WE FOUND BOTH THE AUTHORITIES HAVE FAILED TO DO SO. THEREFOR E, IN THE -: 5: - 5 INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE BACK THIS ISSUE TO THE FILE OF AO AND THE AO IS DIRECTED TO VERIFY WHE THER ANY SHORT DEDUCTION OF TAX OR NOT AND WHETHER THE ASSES SEE IS LIABLE FOR INTEREST OR NOT AND WHETHER THE DEDUCTEE HAS PAID TAX OR NOT. THE ASSESSEE IS DIRECTED TO COOPERATE W ITH THE AO AND HE MUST PRODUCE ALL THE RELEVANT EVIDENCE BEFOR E THE AO AND THE AO IS FURTHER DIRECTED TO VERIFY THE SAME A ND DECIDE THE MATTER AFRESH KEEPING IN MIND THE DECISIONS OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILLY & CO . (INDIA) (P) LTD AND HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT (SUPRA). 6. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 28 TH MAY , 2015. CPU*126 -: 6: - 6