M/s IDEB Projects Pvt Ltd, Bengaluru V. Income Tax Officer, Ward-3(1)(1), Bengaluru

ITA 264/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0131 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-03-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 31-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R NARAYANA
• Keywords: Opportunity of being heard; Principle of natural justice; TDS; Set aside
• Section: 154

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 264 / BANG/201 8 ASSESSMENT YEAR : 2 0 1 0 - 1 1 M/S. IDEB PROJECTS PRIVATE LIMITED, 9 TH & 10 TH FLOOR, DELTA TOWERS, SIGMA SOFT TECH PARK, VARTHURKODI, BANGALORE 560 066. PAN: AAACI5570N VS. THE INCOME TAX OFFICER, WARD 3 (1) (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE R EVENUE BY : SHRI K.R. NARAYANA, JCIT (DR) DATE OF HEARING : 21 .0 3 .2019 DATE OF PRONOUNCEMENT : 29. 0 3 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-3, BANGALORE DATED 28.11.2017 FOR ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE AUTHORITIES IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, FACTS, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED AUTHORITIES BELOW ERRED IN REJECTING THE PETITION FILED BY THE APPELLANT, CLAIMING THE TDS TO THE EXTENT OF RS. 62,59,744/- WHICH WAS NOT CLAIMED AT THE TIME OF FILING THE RETURN DUE TO NON-AVAILABILITY OF TDS CERTIFICATES AND SUBSEQUENTLY CLAIMED U/S 155(14) OF THE INCOME TAX ACT, 1961. 3. THE LEARNED AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE FIRST ITA NO.264/BANG/2018 PAGE 2 OF 4 RECTIFICATION APPLICATION U/S 155(14) WAS MADE ON 21.08.2012 WHICH IS WITHIN THE TIME LIMIT PRESCRIBED U/S 155(14) OF THE INCOME TAX ACT, 1961. 4. THE LEARNED AUTHORITIES BELOW ERRED IN ARRIVING AT CONCLUSION THAT SEC 155(14) DOES NOT PROVIDE FOR ANY FRESH CLAIM OF TDS. THE LEARNED AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE SECTION SPECIFICALLY EMPOWERS THE ASSESSING OFFICER TO GIVE CREDIT OF TDS IN ACCORDANCE WITH SEC 199, WHICH WAS NOT AVAILABLE TO THE APPELLANT ON THE GROUND THAT THE CERTIFICATE U/S 203 WAS NOT FILED WITH THE RETURN OF INCOME. THIS WOULD MEAN THAT UPON THE CERTIFICATE BEING MADE AVAILABLE THE APPELLANT IS ENTITLED TO CLAIM THE TDS AMOUNT. 5. THE LEARNED AUTHORITIES BELOW ERRED IN NOT CONSIDERING THE FACT THAT THE INCOME CORRESPONDING TO THE TDS CREDIT HAS BEEN OFFERED TO TAX AND HENCE, THE APPELLANT IS ELIGIBLE TO TAKE CREDIT OF THE SAME UNDER PREPAID TAXES. 6. THE LEARNED AUTHORITIES BELOW FAILED TO APPRECIATE THAT AS PER THE PROVISIONS OF SEC 199 OF INCOME TAX 1961 READ WITH RULE 37 BA (3)(I) OF INCOME TAX RULES 1962, CREDIT FOR TDS SHALL BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH THE INCOME IS ASSESSABLE. IF THE TDS CLAIM IS NOT ALLOWED FOR THE ASSESSMENT YEAR 2010-11 THE APPELLANT WILL LOSE THE BENEFIT OF THE SAID AMOUNT WHICH WOULD RESULT IN UNJUST ENRICHMENT TO THE REVENUE. 7. WITHOUT PREJUDICE, THE LEARNED AUTHORITIES BELOW ERRED IN REJECTING THE CLAIM U/S 155(14) IGNORING THE FACT THAT THE LEARNED AO HAS POWER TO AMEND ANY ORDER UNDER THE PROVISIONS OF SECTION 154 AND HENCE THE CLAIM IS A VALID CLAIM BASED ON FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE LEARNED CIT(A) HAD ACCEPTED IN HIS ORDER THAT THE APPELLANT COULD HAVE FILED A RECTIFICATION APPLICATION BEFORE THE AO. THE APPELLANT MOVED A RECTIFICATION APPLICATION ON 21.08.2012 WHICH IS WITHIN THE TIME PERIOD U/S 155(14) AND HENCE, THE APPELLATE ORDER IS INVALID WHICH ENABLES A REFUND OF RS. 62,59,744/-. 9. THE HON'BLE CIT(A) MISUNDERSTOOD THE FACTS OF THE CASE AND HAS DISPOSED THE APPEAL ASSUMING THAT THE APPEAL IS AGAINST THE GRIEVANCE PETITION AS AGAINST THE FACT THAT THE APPEAL IS AGAINST THE REJECTION OF CLAIM U/S 155(14) MADE BY THE APPELLANT BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE LEARNED AUTHORITIES BELOW ERRED IN LAW AND ON FACTS IN PASSING THE ORDERS BY GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE ORDER. THIS ACTION OF BOTH THE BELOW AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE THE ORDERS DESERVES TO BE QUASHED. ITA NO.264/BANG/2018 PAGE 3 OF 4 11. WITHOUT PREJUDICE, THE LEARNED AUTHORITIES BELOW ERRED IN IGNORING THE FACT THAT THE APPELLANT WOULD FACE UNDUE HARDSHIP AND THERE WOULD BE TREMENDOUS LOSS IN THE EVENT OF NOT ADMITTING THE CLAIM MADE BY THE APPELLANT. FURTHER, THE REVENUE WOULD BE UNJUSTLY ENRICHED WHICH IS IMPERMISSIBLE IN LAW. 12. THE LEARNED AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE FIRST APPLICATION HAS BEEN MADE ON 21.08.2012, WHICH IS WITHIN THE TIME LIMIT ENDED 31.03.2013, WHICH THE LEARNED CIT(A) ALSO HAVE BEEN ACCEPTED IN HIS ORDER. 13. THE LEARNED AUTHORITIES BELOW ERRED IN PASSING THE ORDER STATING THAT THE CLAIM OF THE APPELLANT WOULD NOT FALL WITHIN THE SCOPE OF 155(14) IGNORING THAT THE SAID PROVISIONS ARE INSERTED TO ENABLE THE TAXPAYERS FOR A SPECIFIC CLAIM IN RELATION TO TAX CREDIT. 14. THE LEARNED AUTHORITIES BELOW HAVE ERRED IN NOT CONSIDERING THE SETTLED LAW THAT APPROACH OF THE TAX AUTHORITIES SHOULD BE JUSTICE ORIENTED SO AS TO ADVANCE CAUSE OF JUSTICE ON THE BASIS OF LAW AND ON FACTS, CIRCUMSTANCES OF THE CASE. 15. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE, CHANGE, DELETE ANY OF THE GROUNDS OF APPEAL. 16. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEALS MAY BE ALLOWED AND JUSTICE RENDERED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE ALSO POINTED OUT THAT ONLY ONE DATE OF HEARING WAS FIXED BY LD. CIT(A) I.E. ON 17.11.2017. HE SUBMITTED THAT THIS IS TRUE THAT ON THIS DATE OF HEARING, THE ASSESSEE COULD NOT APPEAR BUT IN THE INTEREST OF JUSTICE, LD. CIT (A) SHOULD HAVE PROVIDED SOME MORE OPPORTUNITIES. HE SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. DR OF REVENUE SUBMITTED THAT SINCE THE ASSESSEE DID NOT APPEAR ON THE DATE OF HEARING FIXED BY CIT(A), NO FURTHER OPPORTUNITY SHOULD BE PROVIDED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER THE IMPUGNED ORDER OF CIT(A), ONE DATE OF HEARING WAS FIXED BY HIM I.E. ITA NO.264/BANG/2018 PAGE 4 OF 4 17.11.2017 AND IT IS NOTED BY HIM IN THE IMPUGNED ORDER THAT NOBODY HAS ATTENDED ON THIS DATE OF HEARING. HE ALSO NOTED AND REPRODUCED THE EVIDENCE REGARDING SERVICE OF NOTICE OF HEARING ON THE ASSESSEE. HENCE THIS IS NOT IN DISPUTE THAT THE NOTICE OF HEARING WAS DULY SERVED ON ASSESSEE AND ASSESSEE DID NOT APPEAR BEFORE LD. CIT(A). BUT STILL IN THE INTEREST OF JUSTICE, WE SET ASIDE THIS ORDER OF CIT(A) AND RESTORE THIS MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 29 TH MARCH, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.