M/s MANGAL BUILDCON (P) LTD., Indore V. The ITO TDS-II, Indore

ITA 251/IND/2014

• Counselvise Citation: 25122714 RSA 2014
• Duration Of Justice: 1 year(s) 2 month(s) 5 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: 2009-2010
• Appeal Filed On: 03-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA

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.250 TO 252/IND/2014 A.Y. : 2008-09 TO 2010-11 M/S.MANGAL BUILDCON (P) LIMITED, INDORE. ITO TDS II INDORE. VS APPELLANT RESPONDENT PAN NO. : AADCM1950B APPELLANT BY : SHRI MANOJ GUPTA AND SHRI PANKAJ SHAH 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 THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 7.12.2007 FOR THE ASSESSMENT YEAR 2 008-09 TO 2010-11. 2. THE ASSESSEE COMPANY IS DOING BUSINESS OF EXHIBITIN G FILMS AND ALLIED ACTIVITIES, MULTIPLEX THEATRE. THE ASSESSEE ACQUIRED LAND FROM I.D.A. ON LEASE. THE ASSESSEE HA S PAID THE RENT, BUT NO TDS HAS BEEN DEDUCTED. THEREFORE, THE AO HELD THAT THE ASSESSEE IS LIABLE TO DEDUCT THE TAX AT SO URCE U/S 1904A AND RAISED THE DEMAND OF TDS WITH INTEREST FO R THE ASSESSMENT YEARS 2008-09 TO 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* 9116