Principal Maharana Pratap Degree College, Hardoi V. Income Tax Officer (TDS), Bareilly

ITA 256/LKW/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0549 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 11-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PUNEET KUMAR
• Keywords: Salary income; Opportunity of being heard
• Section: 201(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.256 & 257/LKW/2013 A. YRS.:2006 - 07 & 2008 - 09 & I.T.A. NO.258/LKW/2013 A.YR.2010 - 11 (24Q) IVTH QUARTER & I.T.A. NO.259/LKW/2013 A.YR.2010 - 11 (26Q) IVTH QUARTER PRINCIPAL MAHARANA PRATAP DEGREE COLLEGE, SITAPUR ROAD, MAHOLIA SHIVPURI, HARDOI. PAN:LKNMO6093D VS. INCOME TAX OFFICER(TDS), BAREILLY. (APPELLANT) (RESPONDENT) SHRI S. C. AGARWAL, ADVOCATE APPELLANT BY SHRI PUNEET KUMAR, D. R. RESPONDENT BY 01/04/2015 DATE OF HEARING 2 1 /04/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA: ALL THESE FOUR APPEALS ARE FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST A COMBINED ORDER OF CIT(A), BAREILLY DATED 27/12/2012 IN RESPECT OF FORM NO.24Q (IVTH QUARTER) FOR ASSESSMENT YEAR 2006 - 07 AND 2008 - 09, FORM NO.26Q (IVTH QUARTER) FOR ASSESSMENT YEAR 2010 - 11 AND FORM 24Q (IVTH QUARTER) FOR ASSESSMENT YEAR 2010 - 11. THE GRO UNDS RAISED BY THE ASSESSEE IN THESE APPEALS ARE AS UNDER: GROUNDS OF I.T.A. NO.256/LKW/2013 1. THAT THE APPELLANT IS NOT AN 'ASSESSEE IN DEFAULT' WITHIN THE MEANING OF SECTION 201(1)/201(A) OF INCOME TAX ACT, 1961 AND THE PROCEEDINGS ARE UNWARRANTED AND UNCALLED FOR. 2. THAT THE DEMAND OF RS. 48,060/ - AGAINST THE APPELLANT IS ARBITRARY AND AGAINST FACTS OF THE CASE. 2 3. THAT THE APPELLANT DID NOT RECEIVE NOTICE UNDER SECTION 201(1) OF INCOME TAX ACT, 1961 AND THE ORDER PASSED THERE UNDER IS UNTENABLE IN LAW. 4. THAT THE GROUND NO. 5 OF APPEAL TAKEN BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT GIVEN DUE CONSIDERATION RENDERING THE ORDERS ERRONEOUS AND BASED ON WRONG APPRECIATION OF FACTS. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) PASSED THE ORDER IN A MECHANICAL MANNER WITHOUT EXAMINING THE RECORDS OF THE CASE WHICH COULD HAVE EXPLAINED THAT THE ASSESSEE WAS NOT IN DEFAULT, LIABLE FOR ANY ACTION UNDER SECTION 201/201A OF INCOME TAX ACT, 1961. 6. THAT THE ORDERS UNDER QUESTIO N ARE BAD IN LAW AND AGAINST FACTS OF THE CASE AND ARE LIABLE TO BE SET ASIDE. GROUNDS OF I.T.A. NO.25 7 /LKW/2013 1. THAT THE APPELLANT IS NOT AN 'ASSESSEE IN DEFAULT' WITHIN THE MEANING OF SECTION 201(1)/201(A) OF INCOME TAX ACT, 1961 AND THE PROCEEDINGS ARE UNWARRANTED AND UNCALLED FOR. 2. THAT THE DEMAND OF RS. 610/ - AGAINST THE APPELLANT IS ARBITRARY AND AGAINST FA CTS OF THE CASE. 3. THAT THE APPELLANT DID NOT RECEIVE NOTICE UNDER SECTION 201(1) OF INCOME TAX ACT, 1961 AND THE ORDER PASSED THERE UNDER IS UNTENABLE IN LAW. 4. THAT THE GROUND NO. 5 OF APPEAL TAKEN BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT GIVEN DUE CONSIDERATION RENDERING THE ORDERS ERRONEOUS AND BASED ON WRONG APPRECIATION OF FACTS. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) PASSED THE ORDER IN A MECHANICAL MANNER WITHOUT EXAMINING THE RECORDS OF THE CASE WHICH COULD HAVE EXPLAINED THAT THE ASSESSEE WAS NOT IN DEFAULT, LIABLE FOR ANY ACTION UNDER SECTION 201/201A OF INCOME TAX ACT, 1961. 6. THAT THE ORDERS UNDER QUESTION ARE BAD IN LAW AND AGAINST FACTS OF THE CASE AND ARE LIABLE TO BE SET ASIDE. GROUNDS OF I.T.A. NO.25 8 /LKW/2013 1. THAT THE APPELLANT IS NOT AN 'ASSESSEE IN DEFAULT' WITHIN THE MEANING OF SECTION 201(1)/201(A) OF INCOME TAX ACT, 1961 AND THE PROCEEDINGS ARE UNWARRANTED AND UNCALLED FOR. 3 2. THAT THE DEMAND OF RS.12,75,810/ - (IVTH QUARTER 24Q) AGAINST THE APPELLANT IS ARBITRARY AND AGAINST FACTS OF THE CASE. 3. THAT THE APPELLANT DID NOT RECEIVE NOTICE UNDER SECTION 201(1) OF INCOME TAX ACT, 1961 AND THE ORDER PASSED THERE UNDER IS UNTENABLE IN LAW. 4. THAT THE GROUND NO. 5 OF APPEAL TAKEN BEF ORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT GIVEN DUE CONSIDERATION RENDERING THE ORDERS ERRONEOUS AND BASED ON WRONG APPRECIATION OF FACTS. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) PASSED THE ORDER IN A MECHANICAL MANNER W ITHOUT EXAMINING THE RECORDS OF THE CASE WHICH COULD HAVE EXPLAINED THAT THE ASSESSEE WAS NOT IN DEFAULT, LIABLE FOR ANY ACTION UNDER SECTION 201/201A OF INCOME TAX ACT, 1961. 6. THAT THE ORDERS UNDER QUESTION ARE BAD IN LAW AND AGAINST FACTS OF THE CASE AND ARE LIABLE TO BE SET ASIDE. GROUNDS OF I.T.A. NO.25 9 /LKW/2013 1. THAT THE APPELLANT IS NOT AN 'ASSESSEE IN DEFAULT' WITHIN THE MEANING OF SECTION 201(1)/201(A) OF INCOME TAX ACT, 1961 AND THE PROCEEDINGS ARE UNWARRANTED AND UNCALLED FOR. 2. THAT THE DEMAND OF RS.7,390/ - (IVTH QUARTER 26Q) AGAINST THE APPELLANT IS ARBITRARY AND AGAINST FACTS OF THE CASE. 3. THAT THE APPELLANT DID NOT RECEIVE NOTICE UNDER SECTION 201(1) OF INCOME TAX ACT, 1961 AND THE ORDER PASSED THERE UNDER IS UNTENABLE IN LAW. 4. THAT THE GROUND NO. 5 OF APPEAL TAKEN BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT GIVEN DUE CONSIDERATION RENDERING THE ORDERS ERRONEOUS AND BASED ON WRONG APPRECIATION OF FACTS. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) PASSED THE ORDER IN A MECHANICAL MANNER WITHOUT EXAMINING THE RECORDS OF THE CASE WHICH COULD HAVE EXPLAINED THAT THE 4 ASSESSEE WAS NOT IN DEFAULT, LIABLE FOR ANY ACTION UNDER SECTION 201/201A OF INCOME TAX ACT, 1961. 6. THAT THE ORDERS UNDER QUESTION A RE BAD IN LAW AND AGAINST FACTS OF THE CASE AND ARE LIABLE TO BE SET ASIDE. 2. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IN THE CASE OF THESE EMPLOYEES FOR WHICH THIS IS ALLEGED THAT TDS WAS SHORT DEDUCTED BY THE ASSESSEE, TDS WAS DEDUCTED BY EARLIER EMPLOYER OF THOSE EMPLOYEES AND THE SAME WAS NOT CONSIDERED BY THE AUTHORITIES BELOW FOR WORKING OUT THE AMOUNT OF SHORT DEDUCTION AND THEREFORE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AFTER EXAMINI NG THIS ASPECT. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER THE STATEMENT APPEARING ON PAGE 5 TO 7 OF THE PAPER BOOK, IN RESPECT OF FOUR EMPLOYEES I.E. DR . V. P. DWIVEDI, DR. MEENA SRIVASTAVA, DR. UDAI SHANKAR PANDEY AND DR. RAMANAND PRASAD , THERE IS ALLEGED SHORT DEDUCTION OF TDS OF RS.30,154/ - AND IT IS EXPLAINED BY THE ASSESSEE THAT IN RESPECT OF FIRST TWO EMPLOYEES, TDS WAS DEDUCTED BY EX - EMPLOYER AND I N RESPECT OF THIRD EMPLOYEE, AMOUNT WAS DEPOSITED BY THE EMPLOYEE HIMSELF THROUGH SELF ASSESSMENT TAX CHALLAN AND IN RESPECT OF 4 TH EMPLOYEE, TAX WAS DEDUCTED BY HIGHER EDUCATION DEPARTMENT. THESE CLAIMS OF THE ASSESSEE WERE NOT CONSIDERED BY THE AUTHORITIES BELOW AND UNDER THESE FACTS, WE FEEL IT PROPER THAT THE MATTER SHOULD GO BACK TO ASSESSING OFFICER FOR FRESH DECISION BECAUSE T HIS IS SETTLED POSITION OF LAW THAT IF THE TAX IS PAID BY THE DEDUCTEE, NO DEMAND CAN BE RAISED U/S 201 (1) ALTHOUGH THERE MAY BE LIABILITY OF INTEREST U/S 201 (1A) . HENCE, EVEN IN RESPECT OF THAT EMPLOYEE WHO PAID TAX U/S 140A, DEMAND U/S 201 (1) IS NOT PROPER IF THE ASSESSEE IS ABLE TO ESTABLISH SUCH PAYMENT BY THAT EMPLOYEE. IN RESPECT OF TDS BY EARLIER EMPLOYER, ADMITTEDLY, 5 THERE IS NO SHORT DEDUCTION OF TAX IF THE ASSESSEE IS ABLE TO ESTABLISH THAT AFTER CONSIDERING TOTAL SALARY INCOME OF THE EMPLOYEE FROM THIS ASSESSEE AND THE PREVIOUS EMPLOYER, TAX DEDUCTED BY THIS ASSESSEE AND EARLIER EMPLOYER IS NOT SHORT DEDUCTION. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) IN ALL THESE CASES AND RESTORE THE MATTER TO ASSESSING OFFICER FOR FRESH DECISION. THE ASSESSING OFFICER SHOULD EXAMINE THE VERACITY OF THE CLAIM OF THE ASSESSEE THAT THE TAX WAS DEDUCTED BY EX - EMPLOYER OR WAS DEPOSITED BY THE EMPLOYE E BY WAY OF SELF ASSESSMENT TAX CHALLAN BECAUSE IT IS SETTLED POSITION OF LAW THAT IF THE TAX HAS ALREADY BE EN REALIZED BY THE DEPARTMENT FROM THE PAYEE, NO DEMAND CAN BE RAISED U/S 201(1) ON THE DEDUCTOR FOR HIS FAILURE TO DEDUCT TDS. MOREOVER, IF TDS WAS ALREADY DEDUCTED BY EX - EMPLOYER THEN THERE IS NO SHORT DEDUCTION OF TAX BY THE PRESENT DEDUCTOR. ON ALL T HESE ASPECTS, VERIFICATION IS REQUIRED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 1 /04/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR