PAN INDIA INFRASTRUCTURE P.LTD, MUMBAI V. DCIT (TDS) RG 2(1), MUMBAI

ITA 2731/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2581 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SARAVANAN
• Assessee Lawyers: HITENDRA BHANDARI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAMIT KOCHAR , AM ./ ITA NOS. 2730 & 2731/MUM/2014 ( / ASSESSMENT YEAR: 2009 - 10 ) PAN INDIA INFRASTRUCTURE P. LTD. / VS. DCIT (TDS), RANGE - 2(1) 135, CONTINENTAL BUILDING DR. ANNIE BESANT ROAD, WROLI MUMBAI 400018 SMT. K.G. MITTAL HOSPITAL BLDG. CHARNI ROAD, MUMBAI 400002 ./ PAN - AABCE7719E /APPELLANT / RESPONDENT / APPELLANT BY : SHRI HITENDRA BHANDARI / RESPONDENT BY : SHRI J. SARAVANAN / DATE OF HEARING : 13.10. 2015 / DATE OF PRONOUNCEMENT : 30 . 10 .2015 / O R D E R PER SHAILENDRA KUMAR YADAV, JM BOTH THESE APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDERS DATED 14.02.2014 ON SIMILAR ISSUE. THEREFORE THESE APPEALS ARE DISPOSED OF BY THE COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO. 2730/MUM/2014 REVENUE RAISED THE FOLLOWING G ROUNDS: - 1. THE LD. CIT (A) ERRED IN LAW AND FACTS IN UPHOLDING ORDER U/S 201 (1)! 201 (1A) WHEREIN DEMAND OF RS. 46,56.020/ - HAS BEEN RAISED BY NOT ADJUDICATING THE APPEAL ON MERITS THEREBY DENYING ASSESSEE PROPER OPPORTUNITY OF BEING HEARD WHICH IS AGAINST THE PRINC IPAL OF NATURAL JUSTICE AND PROVISIONS OF LAW. 2 ITA NO S . 2730 &2731 /MUM/2014 PAN INDIA INFRASTRUCTURE P. LTD. 2. THE LD. CIT (A) OUGHT TO HAVE ASKED FOR OR DIRECTED THE ASSESSING OFFICER TO DELIVER ORDER U/S 201 (1)/201 (1A) OF THE ACT AND DETAILS OF SHORT DEDUCTION / SHORT PAYMENT/ INTEREST CHARGED, BEFORE DISMISSING TH E APPEAL. 3. THE LD. CIT (A) OUGHT TO HAVE HELD THAT THE ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT U/S 201/201(1A) OF THE ACT AS THE ASSESSEE IN FACT HAS PAID THE ALLEGED SHORT/NON DEDUCTION OF TDS. 4. WITHOUT PREJUDICE TO THE ABOVE, FOR THE ALLEGED SHOR T DEDUCTION/ PAYMENT THE ASSESSEE RELIES ON HON'BLE APEX COURT DECISION IN CASE OF HINDUSTAN COCA COLA (293 ITR 226) HENCE WHERE THE DEDUCTEE/RECIPIENT HAS ALREADY PAID TAXES ON INCOME RECEIVED FROM ASSESSEE, THE DEPT. CANNOT AGAIN RECOVER TAX U/S 201 OF T HE ACT FROM DEDUCTOR ON THE SAME INCOME. 5. THE LD. CIT (A) ERRED IN LAW AND FACTS IN UPHOLDING DEMAND ON ACCOUNT OF INTEREST U/S 201(1A) OF THE ACT ON ABOVE REFERRED ALLEGED DEFAULTS WITHOUT CONSIDERING THE FACT THAT THE DEDUCTEES HAVE PAID TAXES ON DUE DATE ON THEIR INCOME. 3. ASSESSEE IS CLAIMED TO HAVE ENGAGED IN EPC INFRASTRUCTURES ACTIVITIES. TDS RETURN UNDER SECTION 200(3) IN FORM NO. 26Q FOR QUARTER 3 FILED ON 14.01.2009 PAYING TDS OF ` 86,21,122/ - . ASSESSEE RECEIVED NOTICE OF DEMAND UNDER SECTION 156 OF THE ACT SHOWING DEMAND OF ` 46,50,020/ - . ASSESSEE CLAIMS THAT SHE HAS NOT GIVEN PROPER OPPORTUNITY SO HE TOOK THE MATTER TO THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 4. AS PER PROVISIONS OF THE I.T. ACT ONLY ORDERS MENTIO NED IN SECTION 246A ARE APPEALABLE WITH THE COMMISSIONER OF APPEAL. AS IN THE INSTANT CASE NO ORDER U/S. 201 OF THE I.T. ACT APPEARS TO HAVE BEEN PASSED, AND ONLY A DEMAND NOTICE U/S. 156 HAS BEEN SERVED UPON THE ASSESSEE, NO APPEAL WOULD LIE BEFORE THE UN DERSIGNED. IN THE CIRCUMSTANCES, THE SAID APPEAL IS HELD TO BE NON - MAINTAINABLE AND HENCE, DISMISSED. 3 ITA NO S . 2730 &2731 /MUM/2014 PAN INDIA INFRASTRUCTURE P. LTD. 3.1 WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) ON TECHNICAL ASPECT BUT AT THE SAME TIME AS GROUNDS RAISED BEFORE US. WE FIND THAT ON TECHNIC AL ASPECT ASSESSEE WAS DENIED OPPORTUNITY OF BEING HEARD AT RELEVANT POINT OF TIME. WITHOUT PREJUDICE TO THE MAINTAINABILITY OF THE APPEAL WE ARE OF THE VIEW THAT ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY OF HEARING BY CONCERNED ASSESSING OFFICER AGAINST HIS GRIEVANCES AT RELEVANT POINT OF TIME . SO IN THE INTEREST OF JUSTICE WE RESTORE THE MATTER TO THE CONCERNED ASSESSING OFFICER WITH THE DIRECTION TO REDRESS THE GRIEVANCE OF ASSESSEE ON ISSUE AS PER THE FACTS AND LAW AFTER PROVIDING DUE OPPORTUN ITY OF HEARING TO THE ASSESSEE. ACCORDING TO US SUCH PROCEDURAL GRIEVANCES OF ASSESSEE SHOULD BE ADDRESSED BY CONCERNED REVENUE AUTHORITIES AT THE EARLIEST. SINCE WE ARE RESTORING THE MATTER TO THE ASSESSING OFFICER ON BROAD LEGAL PREPOSITION , WE ARE REFRA INING TO COMMENT ON THE MERITS OF THE ISSUE ON HAND. 4. SIMILAR ISSUE AROSE IN ITA NO. 2731/MUM/2014. FOLLOWING THE ABOVE REASONS THIS APPEAL IS ALSO RESTORED TO THE ASSESSING OFFICER WITH SIMILAR DIRECTION. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE . ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER , 2015. 30.10.2015 SD/ - SD/ - (RAMIT KOCHAR) ( SHAILENDRA KUMAR YADAV ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI , DATED 30 TH OCTOBER , 2015 4 ITA NO S . 2730 &2731 /MUM/2014 PAN INDIA INFRASTRUCTURE P. LTD. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) - 3 , MUMBAI 4. / THE CIT - (TDS) , MUMBAI 5. , , / DR, C BENCH ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER //TRUE COPY// /ASSTT. REGISTRAR) , /ITAT, MUMBAI