NSE IT LTD, MUMBAI V. DCIT 8(2), MUMBAI

ITA 2741/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1167 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-09-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MOHANDA S
• Keywords: Principle of natural justice
• Section: 143(3); 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I .T.A. NO. 2741 /MUM/201 2 ( / ASSESSMENT YEAR : 2 00 5 - 06 ) M/S NSEIT LIMITED, TRADE GLOBE, GROUND FLOOR, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI - 400059 / VS. DY.COMMISSIONER OF INCOME TAX 8(2), MUMBAI. ./ PAN : AABCN0159P / APPELLANT BY NONE / RESPONDE NT BY SHRI K MOHANDAS / DATE OF HEARING : 1.2.2017 / DATE OF PRONOUNCEMENT : 12. 4 . 2017 / O R D E R PER RAJESH KUMAR , A M THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 1.2. 201 2 , PASSED BY THE COMMISSIONER OF INCOME TAX (A) , MUMBAI U/S 143(3) R.W.S.147 OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2 00 5 - 06 . 2. AT THE OUTSET, WE WOULD LIKE TO MENTION THAT NEITHER THE ASSESSEE NOR ANY AUTHO RIZED REPRESENTATIVE APPEARED AT THE TIME OF HEARING OF THE APPEAL. THEREFORE, WE PROCEED TO DECIDE THE APPEAL EX - PARTE IN ABSENCE OF 2 I .T.A. NO. 2741 /MUM/201 2 THE ASSESSEE AND AFTER HEARING LD.DR AND ON THE BASIS OF MATERIAL AVAILABLE BEFORE US. 3. THE ONLY ISSUE RAISED BY THE A SSESSEE IN ALL THE GROUNDS OF APPEAL IS AGAINST THE CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234C OF THE ACT BY IGNORING THE FACTS THAT THE TDS PAID OF RS.3,89,643/ - AND DID NOT ADJUDICATE THE GROUND RELATING TO INCOME TAX DEMAND AND DID NOT AL LOWED TDS. 4. THE FACTS OF THE CASE ARE THAT THE ASSESSEE CLAIMED CREDIT FOR TDS RS. RS.1,37,67,427/ - AND IN NOTE NO.8 TO COMPUTATION OF TOTAL INCOME IT WAS STATED THAT ASSESSEE HAS NOT RECEIVED TDS CERTIFICATES AGGREGATING TO RS.3,89,643/ - FROM VARIOUS DETECTORS WHICH SHALL BE SUBMITTED AS AND WHEN RECEIVED FROM THE DEDUCTORS. THE AO DURING THE COURSE OF HEARING AND AT THE TIME OF PASSING ORDER UNDER SECTION 143(3) R.W.S.147 , DENIED THE CREDIT OF RS.3,89,643/ - ON ACCOUNT OF NON - AVAILABILITY OF TDS C ERTIFICATE AND CHARGED INTEREST UNDER SECTIONS 234A, 234B AND 234C OF THE ACT DUE NON AVAILABILITY OF TDS CERTIFICATES . AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, WHO ALSO DID NOT ADJUDICAT E THE ISSUE RAISED BY THE ASSESSEE. FURTHER AGGRIEVED BY THE ORDER OF THE FAA, THE ASSESSEE HAS FILED THIS APPEAL BEFORE THIS TRIBUNAL. 3 I .T.A. NO. 2741 /MUM/201 2 5 . THE LD.DR REITERATED THE FACTS OF THE CASE AND RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 6 . AFTER HEARING TH E LD.DR AND ON PERUSAL OF THE RECORDS, WE FIND THAT THE ISSUE OF CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234C REQUIRES TO BE CONSIDERED AFRESH AFTER EXAMINATION OF THE DOCUMENTS AND TDS CERTIFICATES OF RS.3,89,643/ - AND RS.22,564/ - TO BE FURNI SHED BY THE ASSESSEE. IT IS A TRITE LAW THAT INTEREST UNDER SECTION 234A, 234B AND 234C CANNOT BE CHARGED EVEN WHEN THE TDS LIABLE TO BE DE D UC T ED WAS NOT DEDUCTED OR AFTER DEDUCTION NOT DEPOSITED . WE THEREFORE, RESTORE THE ISSUE BACK TO THE FILE OF THE AO TO EXAMINE THE ISSUE AFRESH OF CHARGING OF INTEREST UNDER SECTION 234A, 234B AND 234V AFTER ALLOWING THE CREDIT OF RS.3,89,643/ - AND RS.22,564/ - AND AFTER FURNISHING FAIR AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE ACCORDING TO THE PRINCIP LE OF NATURAL JUSTICE ACCORDINGLY TO OUR OBSERVATIONS ABOVE . 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 12. 4 .2 01 7 . SD SD ( MAHAVIR SINGH ) ( RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 12. 4 . 2017. SR.PS:SRL: 4 I .T.A. NO. 2741 /MUM/201 2 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RE SPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI