Branch Manager, LIC Of India, Bhadrak Branch, Bhadrak V. ACIT- (TDS-2), Bhubaneswar

ITA 273/CTK/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7582 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 06-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNAKAR MOHANTY
• Keywords: Principle of natural justice; TDS
• Section: 201(1); 201; 274

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM . / ITA NO. 273 & 274 /CTK/201 9 (AY :20 07 - 20 08 ) (1 ST QUARTER) 26Q (AY:20 07 - 20 08 )( 2 ND QUARTER) 2 6 Q BRANCH MANAGER, LIC OF INDIA, BHADRAK BRANCH, BHADRAK VS. ACIT (TDS - II), BHUBANESWAR ./ PAN NO. : A AACL 0582 H ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SUNAKAR MOHANTY , ADV . /R EVENUE BY : SHRI SUBHENDU DATTA , DR / DATE OF HEARING : 27 / 01 /20 20 / DATE OF PRONOUNCEMENT : 28 / 01 /20 20 / O R D E R PER L.P.SAHU, AM : THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST SEPARATE ORDER P ASSED BY THE CIT(A), SAMBALPUR, BOTH DATED 09.05.2019 FOR THE ASSESSMENT YEAR 2007 - 2008 (1 ST QUARTER & 2 ND QUARTER). 2. THE COMMON GROUND RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE AS UNDER : - 1. FOR THAT THE ORDERS PASSED BY THE LEARNED FORUMS BELOW ARE ILLEGAL ARBITRARY, EXCESSIVE AND UNJUST IN THE FACTS AND CIRCUMSTANCES OF THE CASE, 2, FOR THAT THERE SHOULD NOT BE ANY PENALTY WHICH, IS AGAINST THE PRINCIPLE NATURAL JUSTICE AND THUS THE ORDER PASSED LIABLE TO BE QUASHED I APPEAL. ITA NO. 273 &274 /CTK/201 9 2 3. FOR THAT FOR UM BEFORE FAILED TO APPRECIATE THAT THERE WAS NO SHORT DEDUCTION OF TAX AT SOURCE U/S 201(1) OF FOE ACT, HENCE THE INTEREST CHARGED U/S 201 (A) IS BASELESS AND LIABLE TO BE QUASHED IN APPEAL 4 FOR THAT THE LEARNED AO HAS IMPOSED PENAL INTEREST WITHOUT PR OPER VERIFICATION OF RECORDS'. 5. FOR THAT OTHER GROUNDS, IF ANY, WILL BE URGED AT THE TIME OF HEARING OF APPEAL. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS A PUBLIC SECTOR UNDERTAKING AND FILED ITS QUARTERLY E - TDS STATEMENT IN FORM NO. 26Q FOR THE 1 ST QUARTER AND 2 ND QUARTER , RESPECTIVELY . THE AO AFTER ANALYZING OF THE TDS STATEMENT ON THE BASIS OF ENTRIES REPORTED BY THE DEDUCTOR(ASSESSEE) AND THE INFORMATION AVAILABLE AS PER THE BANK CHALLAN DETAILS, FOUND THAT THE ASSESSEE IS IN DEFA ULT FOR NON - PAYMENT OF TDS AMOUNT DEDUCTED. ACCORDINGLY, THE AO ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AND IT WAS ADVISED TO FILE THE CORRECTION STATEMENT TO RECTIFY THE DATA ENTRY ERRORS, HOWEVER, THE ASSESSEE DID NOT AVAIL THE OPPORTUNITY WITHIN THE PR ESCRIBED PERIOD PROVIDED IN THE SHOW CAUSE NOTICE. ACCORDINGLY, THE DEMAND WAS RAISED AND ORDER WAS PASSED U/S.201(1)/201(1A) OF THE ACT, 1961 FOR BOTH THE QUARTERS AS MENTIONED ABOVE. 4. FEELING AGGRIEVED FROM THE ORDER OF AO, THE ASSESSEE APPEALED BEFOR E THE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, UPHELD THE ORDER PASSED BY THE AO(ACIT - TDS). 5. AGGRIEVED FROM THE ORDER OF CIT(A), THE ASSESSEE IS IN FURTHER APPEALS BEFORE THE INCOME TAX APPELLATE TRIBUNAL. ITA NO. 273 &274 /CTK/201 9 3 6. LD. AR SUBMITT ED THAT THERE WAS NO SHORT DEDUCTION OF TAX AT SOURCE U/S.201(1) OF THE ACT AND, THEREFORE, THE INTEREST CHARGED U/S.201(1A) OF THE ACT IS BASELESS AND LIABLE TO BE DELETED. IT WAS FURTHER CONTENDED BY LD. AR THAT ALL THE TAX DUES HAVE BEEN PAID BY THE AS SESSEE . LD. AR ALSO SUBMITTED THAT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THAT ALL THE TAXES HAVE BEEN PAID TO THE REVENUE AND THERE IS NO LOSS OF REVENUE, THEREFORE, MATTER MAY BE RESTORED TO THE FILE OF AO FOR VERIFICATION. 7. LD.DR, ON THE OTHER HA ND, RELIED ON THE ORDER OF BOTH THE AUTHORITIES BELOW AND SUBMITTED THAT HE HAS NO OBJECTION IF THE ASSESSEE SHOWS BEFORE THE LOWER AUTHORITIES THAT THE CORRECT AMOUNT OF TDS HAS BEEN PAID AND THERE IS NO ANY LOSS TO THE REVENUE. 8. AFTER CONSIDERING BOTH THE SIDES AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD AS WELL AS THE REQUEST OF THE LD. AR OF THE ASSESSEE DURING THE COURSE OF HEARING THAT THE ASSESSEE HAS ALREADY PAID ALL THE DUE TAXES AND THERE IS NO LOSS OF REVENUE, WE ARE OF THE VIEW THAT T HE MATTER NEEDS VERIFICATION AT THE LEVEL OF AO (ACIT - TDS) FOR WHICH LD. DR HAS NO OBJECTION . ACCORDINGLY, WE REMIT THE ISSUE TO THE FILE OF AO(ACIT - TDS) FOR THE LIMITED PURPOSE TO VERIFY AS TO WHETHER THE ASSE SSEE HAS PAID ALL THE DUE TAXES . IF THERE IS NO SHORT DEDUCTION OF TAX AT SOURCE, THE ASSESSEE CANNOT BE HELD AT ASSESSEE - IN - DEFAULT U/S.201(1) OF THE ACT AND CONSEQUENTLY INTEREST CHARGED THERE O N U/S.201(1A) OF THE ACT ITA NO. 273 &274 /CTK/201 9 4 CANNOT BE LEVIED. NEEDLESS TO SAY, THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNI TY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO FILE THE DOCUMENTS BEFORE THE AO WITH REGARD TO PAYMENT OF TDS AS SUBMITTED BY THE LD. AR BEFORE US DURING THE COURSE OF HEARING AND SHALL NOT SEEK ANY UNNECESSARY ADJOUR N MENTS. THUS, GROUNDS OF APPEAL OF THE ASSESSEE IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 01 /20 20 . S D/ - ( C.M.GARG ) SD/ - (L.P.S AHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED 28 / 01 /20 20 PRAKASH KUMAR MISHRA, SR.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) ITAT CUTTACK BENCH, CUTTACK 1. / THE APPELLANT - BRANCH MANAGER, LIC OF INDIA, BHADRAK BRANCH, BHADRAK 2. / THE RESPONDENT - ACIT (TDS - II), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, C UTTACK 6. / GUARD FILE. //TRUE COPY//