Maharana Pratap College of Technology, Gwalior V. A.C.I.T. (TDS), Gwalior

ITA 265/AGR/2013

• Counselvise Citation: 26520314 RSA 2013
• Duration Of Justice: 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 24-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Opportunity of being heard
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 262, 263, 264 & 265/AGRA/2013 ASSTT. YEAR : 2008-09 MAHARANA PRATAP COLLEGE OF TECHNOLOGY, VS. A.C.I.T . (TDS), GWALIOR. 67, VIVEK VIHAR, MELA GROUND, GWALIOR. (PAN : AAATP 5148 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY WADJIKAR, C.A. RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 22.08.2013 DATE OF PRONOUNCEMENT OF ORDER : 22.08.2013 ORDER PER BHAVNESH SAINI, J.M.: ALL THE ABOVE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(A), GWALIOR DATED 18.04.2013 FOR SAME ASSES SMENT YEAR 2008-09. 2. IN ALL THE APPEALS, THE ASSESSEE CHALLENGED THE ORDERS PASSED U/S. 201(1)/201(1A) OF THE IT ACT BECAUSE THE AO HAS RAI SED DEMAND OF RS.49,110/-, RS.15,690/-, RS.45,590/- AND RS.3630/- BY TREATING THE ASSESSEE IN DEFAULT ON SHORT DEDUCTION OF TAXES. THE AO PASSED THE IMPUGNED ORDE RS FOR ALL THE FOUR QUARTERS FOR THE SAME ASSESSMENT YEAR 2008-09, ON WHICH SEPARATE APPEALS HAVE BEEN DECIDED BY THE LD. CIT(A). ITA NO. 262 TO 265/AGRA/2013 2 3. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THA T IT HAS PAID HONORARIUM TO CERTAIN PERSONS, WHO ARE NOT EMPLOYEES OF THE COLLE GE AND THERE IS NO RELATIONSHIP OF MASTER AND SERVANT. IN THE ABSENCE OF ANY RELATI ONSHIP OF MASTER AND SERVANT, THE HONORARIUM PAID TO THEM WAS NOT ASSESSABLE AS SALAR Y. THE HONORARIUM PAID IS CHARGEABLE TO TAX U/S. 56 OF THE IT ACT UNDER THE H EAD INCOME FROM OTHER SOURCES AND ALL THESE PERSONS HAVE FILED THEIR INDIVIDUAL R ETURNS SHOWING INCOME FROM OTHER SOURCES. THEY DID NOT PROVIDE ANY PROFESSIONAL SERV ICES TO THE ASSESSEE, THEREFORE, THE ASSESSEE WAS NOT LIABLE FOR DEDUCTION OF TAX U/ S. 192 ON SALARY OR U/S. 194-J ON PROFESSIONAL FEES. HOWEVER, AT THE ADVICE OF THE TA X COUNSEL BY WAY OF ABUNDANT CARE AND CAUTION, TAX WAS DEDUCTED AT SOURCE AND IT WAS INADVERTENTLY SHOWN AS TDS U/S. 194-J OF THE IT ACT, WHICH IS NOT APPLICAB LE IN THE CASE OF ASSESSEE. THE TAX WAS DEDUCTED @ 5% RIGHT FROM APRIL, 2007 ONWARD S AND IT WAS SO CONTINUED TO BE DEDUCTED, THOUGH IT WAS INCREASED TO 10% LATER O N. THE AO HAS RAISED ILLEGAL DEMAND BECAUSE THE ASSESSEE IS NOT LIABLE TO DEDUCT ANY TAX AND INADVERTENTLY TAX WAS DEDUCTED AT 5% AND NOT @ 10%. THE ASSESSEE ALSO RELIED UPON THE BOARDS CIRCULAR IN SUPPORT OF THE CONTENTION. IT WAS, THER EFORE, SUBMITTED THAT THE DEMAND SO RAISED BY THE AO MAY BE CANCELLED. ITA NO. 262 TO 265/AGRA/2013 3 4. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF TH E ASSESSEE PASSED THE BRIEF ORDER DISMISSING THE APPEALS OF THE ASSESSEE WITHOU T GIVING REASONS FOR THE DECISION. THE SAME IS REPRODUCED AS UNDER : I HAVE GONE THROUGH THE ORDER PASSED BY THE A.O., G ROUNDS OF APPEAL AND WRITTEN SUBMISSIONS FILED BY THE APPELLA NT. I DO NOT AGREE WITH THE APPELLANTS VIEW THAT THE APPELLANT WAS NO T REQUIRED TO DEDUCT TAX. I AM OF THE CONSIDERED OPINION THAT A.O . HAS RIGHTLY RAISED THE DEMAND U/S. 201(1) & 201(1A) AND ORDER OF THE A .O. NEEDS TO BE CONFIRMED. ACCORDINGLY, ORDER PASSED BY THE AO IS C ONFIRMED. THE SAME ORDER IS PASSED IN ALL THE APPEALS. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND SUBMITTED THAT ON HONORARIUM, THERE IS NO PROVISION UNDER THE ACT TO DEDUCT TDS. OTHERWISE ALSO, THE PERSONS WHO HAVE BEEN PAID HONORARIUM HAVE FILED THEIR RETURN OF INCOME DISCLOSING INCOME FROM OTHER SOURCES, THE DETAILS OF WHICH WERE FILED BEFORE THE AUTHORITIES BELOW AND S INCE, THERE IS NO LOSS TO THE REVENUE, THEREFORE, ON DOUBLE TAXATION, THE ASSESSE E SHOULD NOT BE PENALIZED FOR NON-DEDUCTION OF TDS. HE HAS SUBMITTED THAT THE SAM E DETAILS ARE FILED IN THE PAPER BOOK. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T(A). THE ASSESSEE HAS ITA NO. 262 TO 265/AGRA/2013 4 SPECIFICALLY PLEADED BEFORE THE LD. CIT(A) THAT HON ORARIUM HAVE BEEN PAID TO CERTAIN PERSONS, WHO ARE NOT EMPLOYEES OF THE ASSES SEE AND THEY HAVE ALSO NOT PROVIDED ANY PROFESSIONAL SERVICES TO THE ASSESSEE. IT WAS, THEREFORE, PLEADED THAT THE ASSESSEE IS NOT LIABLE FOR DEDUCTION OF TAX UND ER ANY OF THE PROVISIONS OF THE ACT. FURTHER, IT WAS PLEADED THAT ALL THESE PERSONS TO WHOM HONORARIUM HAVE BEEN PAID HAVE FILED THEIR RETURN OF INCOME SHOWING THE SAME HONORARIUM AS INCOME FROM OTHER SOURCES, AND ONCE TAXES HAVE BEEN PAID B Y THE INDIVIDUAL PERSONS, THE ASSESSEE WOULD NOT BE LIABLE TO BE TREATED AS ASSES SEE IN DEFAULT. THE LD. CIT(A) INSTEAD OF PASSING THE REASONED ORDER, DISCUSSING T HE MERITS OF THE CASE HAS DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING REASONS FOR DECISION. ACCORDING TO SECTION 250(6) OF THE IT ACT, THE LD. CIT(A) IS REQUIRED TO PASS REASONED ORDER DISCUSSING THE MERITS OF THE CASE. S INCE NO REASONED ORDERS HAVE BEEN PASSED ON MERITS, THEREFORE, THE MATTER REQUIR ES RECONSIDERATION AT THE LEVEL OF LD. CIT(A). WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO RE-DECIDE ALL THE APPEALS OF THE ASSESSEE BY GIVING REASONS FOR DECISION IN THE APPE LLATE ORDERS. THE LD. CIT(A) SHALL PASS THE ORDER ON MERITS AND SHALL GIVE HIS D ECISION ON ALL THE ASPECTS AND POINTS RAISED BY THE ASSESSEE REGARDING NON-APPLICA BILITY OF ANY OF THE PROVISIONS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND THAT WH EN THE TAXES HAVE BEEN PAID BY THE DEDUCTEE, WHETHER THE ASSESSEE WOULD BE LIABLE U/S. 201 OF THE IT ACT. THE LD. ITA NO. 262 TO 265/AGRA/2013 5 CIT(A) SHALL GIVE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE APPELLATE ORDERS. 7. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY