Project Director National Highways Authority of India(NHAI), V. Assistant Commissioner of Income Tax, TDS, Jabalpur

ITA 285/JAB/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1102 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 31-12-2013
• Court: TRIBUNAL
• Department Lawyers: V B SARGOR
• Assessee Lawyers: ABHIJEET SHRIVASTAVA
• Keywords: TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.285/JAB/2013 A.Y. : 2011-12 PROJECT DIRECTOR, NATIONAL HIGHWAYS AUTHORITY OF INDIA(NHAI), PROJECT IMPLEMENTATION UNIT, SAGAR VS ACIT, TDS, JABALPUR APPELLANT RESPONDENT TAN NO. : JBP000193E APPELLANT BY : SHRI ABHIJEET SHRIVASTAVA, ADV. RESPONDENT BY : SHRI V.B.SARGOR, DR DATE OF HEARING : 2 9 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 29 . 0 5 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, JABALPUR, DATED 20.09.2013 FOR THE ASS ESSMENT YEAR 2011-12. 2. THE ASSESSING OFFICER HAS PASSED THE ORDER U/S 201(1)/201(1A) OF THE INCOME-TAX ACT, 1961, HOLDING THAT THE ASSESSEE IS IN DEFAULT FOR SHORT PAYMENT/NON-PAYMEN T OF TDS. THE DEFAULT OF SHORT DEDUCTION OF TDS AND INTEREST CHARGED U/S 201(1A) IS CALCULATED AS UNDER : SHORT DEDUCTION AMOUNT PAID TO FOREIGN COMPANY 9,93,32,991/ - AMOUNT OF DEFAULT @ 42.23% OF RS. 9,93,32,991/- 4,19,48,321/ - LESS : TDS ALREADY DEDUCTED 24,83,325/ - BALANCE AMOUNT OF DEFAULT OF SHORT DEDUCTION 3,94,64,996/ - INTEREST U/S 201(1A) ON THE DEFAULT @ 1% P.M. FROM APRIL 2010 TO MARCH 2012 I.E. 24 MONTHS 94,71 ,599/ - TOTAL AMOUNT PAYABLE 4,89,36,595/ - 3. -: 3: - 3 4. THE MATTER CARRIED TO THE LD. CIT(A), WHO PASSED O RDER U/S 249(3) OF THE INCOME-TAX ACT, 1961. THE APPEAL WAS FILED ON 12.08.2013. THE IMPUGNED ORDER DATED 29.3.2012 W AS SERVED IN THE OFFICE OF ASSESSEE ON 4.4.2012. THE W AS TIME BARRED BY 466 DAYS. THE LD. CIT(A) DISMISSED THE AP PEAL ON THIS GROUND. 5. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER HE ARING THE RIVAL SUBMISSIONS AND GOING THROUGH THE ORDERS OF T HE TAX AUTHORITIES, WE NOTED THAT THE CASE OF THE ASSESSEE IS DULY COVERED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILLY & CO. (INDIA) (P) LTD. (2 009) 312 ITR 225 (SC), WHEREIN, IT HAS BEEN HELD THAT THE PERIOD OF DEFAULT STARTS FROM DATE OF DEDUCTIBILITY OF TAX TILL DATE OF ITS ACTUAL PAYMENT BY THE CONCERNED EMPLOYEE AND ALSO IN THE C ASE OF M/S. HINDUSTAN COCA COLA BEVERAGE PVT. LTD. VS. CIT (2007) 293 ITR 226 (SC), WHEREIN, IT HAS BEEN HELD THAT WH EN THE TAX HAS BEEN PAID BY THE DEDUCTEE-ASSESSEE, THE TAX COU LD NOT BE RECOVERED ONCE AGAIN FROM THE ASSESSEE. ALL FACTS A RE NOT BORNE OUT FROM THE ASSESSMENT ORDERS AND THE LD. CI T(A) HAS -: 4: - 4 ALSO NOT VERIFIED THE SAME. THEREFORE, IN THE INTER EST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS MATTER BACK TO THE F ILE OF AO WITH THE DIRECTION THAT THE AO SHALL VERIFY WHETHER THE PAYMENT SHOWN IN THE ASSESSMENT ORDER IS LIABLE FOR TDS OR NOT. SECONDLY, IF THERE IS ANY SHORT DEDUCTION OF T AX OR NOT AND IF THERE IS ANY SHORT DEDUCTION OF TAX THAN THE REC EIPT AND THE PAYEE HAS PAID THE TAX OR NOT AND THEY HAVE SHOWN I N THE RETURN OF INCOME HAS TO BE VERIFIED FROM THE CONCER NED ASSESSES. THEREFORE, THIS ALL REQUIRES VERIFICATION AT THE END OF AO. THE AO AND LD. CIT(A) SHOULD HAVE VERIFIED THES E FACTS BEFORE MAKING THE ASSESSMENT AND LD. CIT(A) SHOULD HAVE ALSO DONE THIS EXERCISE. WE FOUND BOTH THE AUTHORITIES H AVE FAILED TO DO SO. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE BACK THIS ISSUE TO THE FILE OF AO AND THE A O IS DIRECTED TO VERIFY WHETHER ANY SHORT DEDUCTION OF TAX OR NOT AND WHETHER THE ASSESSEE IS LIABLE FOR INTEREST OR NOT AND WHETHER THE DEDUCTEE HAS PAID TAX OR NOT. THE ASSESSEE IS D IRECTED TO COOPERATE WITH THE AO AND HE MUST PRODUCE ALL THE R ELEVANT EVIDENCE BEFORE THE AO AND THE AO IS FURTHER DIRECT ED TO VERIFY THE SAME AND DECIDE THE MATTER AFRESH KEEPING IN MI ND THE -: 5: - 5 DECISIONS OF HON'BLE SUPREME COURT IN THE CASE OF C IT VS. ELI LILLY & CO. (INDIA) (P) LTD AND HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT (SUPRA). 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH MAY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :29 TH MAY , 2015. CPU* 156