M/s. GlaxoSmithKline Consumer Healthcare Ltd., Gurgaon V. ACIT (TDS), New Delhi

ITA 2920/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7347 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 11-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: ROHIT JAIN; TEJASVI JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 201(1); 154

Judgement Text

ITA NO.-2920/DEL/2015. GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: F: NEW DELHI) BEFORE SHRI K.N. CHARY, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 2920/DEL/2015 ( ASSESSMENT YEAR: 2007-08) GLAXOSMITH KLINE CONSUMER, HEALTHCARE LIMITED, 24-25 FLOOR, ONE HORIZON CENTER, GOLF COURSE ROAD, DLF PHASE 5, GURGAON-122002, HARYANA. VS. ASSISTANT COMMISSIONER OF INCOME TAX, TDS CIRCLE 50(1), AAYAKAR BHAWAN, 5 TH FLOOR, DISTRICT CENTRE, LAXMI NAGAR, NEW DELHI. PAN NO: AACCS0144E APPELLANT RESPONDENT ASSESSEE BY : SHRI ROHIT JAIN, ADV. AND MS. TEJASVI JAIN, ADV. REVENUE BY : SHRI SURENDER PAL, SR. DR, ORDER PER ANADEE NATH MISSHRA, AM THIS APPEAL BY ASSESSEE IS FILED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-41, NEW DELHI, [LD. CIT(A) , FOR SHORT], DATED 19.02.2015, FOR ASSESSMENT YEAR 2007-08, ON THE FOLLOWING GROUNDS: 1 . THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT AP PRECIATING THAT THE IMPUGNED ORDER DATED 26.02.2012 UNDER SECTION 201(1 )/201(1A) OF THE ITA NO.-2920/DEL/2015. GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED. PAGE 2 OF 6 INCOME-TAX ACT, 1961 (THE ACT), HAVING BEEN PASSE D IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, IS ILLEGAL AND BAD I N LAW. 2. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT DIRECTING THE ASSESSING OFFICER TO DELETE THE INTEREST AMOUNTING TO RS. 88, 52,370 (INCLUDING RS. 1,23,710 TOWARDS INTEREST ON INTEREST) IMPOSED BY H IM UNDER SECTION 201(1A) OF THE ACT. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR VARY THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. (2) DURING THE COURSE OF APPELLATE PROCEEDINGS, THE A SSESSEE FILED PAPER BOOK CONSISTING OF THE FOLLOWING PARTICULARS: 1 . COPY OF THE JUSTIFICATION REPORT CONTAINING DETAILS OF THE ALLEGED SHORT DEDUCTION OF TAX AND INTEREST THEREON. 2. STATEMENT SHOWING DETAILS OF ALLEGED SHORT DEPOS IT OF TAX ALONGWITH THE REMARKS FOR ALLEGED DEFAULT BY THE APPELLANT. 3. COPY OF THE NINE CHALLANS EVIDENCING PAYMENT OF TDS AMOUNTS FOR THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION. 4. STATUS OF CHALLANS DEPOSITED BY THE APPELLANT AS REFLECTED IN THE DEPARTMENTS NSDL WEBSITE. 5. COPY OF CHALLAN DEPOSITED BY THE APPELLANTS GRO UP COMPANY UNDER THEIR TAN NO. DELG08746D FOR THE RELEVANT ASSESSMENT YEAR UND ER CONSIDERATION. 6. STATUS OF CHALLANS DEPOSITED BY THE APPELLANTS GROUP COMPANY AS REFLECTING IN THE DEPARTMENTS NSDL WEBSITE. 7. COPY OF THE ACKNOWLEDGMENT OF REVISED STATEMENT OF TDS DATED 14.05.2012 UNDER SECTION 200(3) OF THE INCOME TAX ACT, 1961 FO R THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION 8. COPY OF THE LETTER DATED 25.04.2012 FILED BEFORE THE ASSESSING OFFICER FOR OBTAINING THE JUSTIFICATION REPORT. 9. COPY OF THE RECTIFICATION APPLICATION DATED 19.0 5.2012 FILED BEFORE THE ASSESSING OFFICER UNDER SECTION 154 OF THE ACT. 10. COY OF SUBMISSION DATED 12.02.2015 FILED BEFORE CIT(A) 11. CIT VS. GUJARAT FLURO CHEMICALS : 358 ITR 291(S C) ITA NO.-2920/DEL/2015. GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED. PAGE 3 OF 6 (3) AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR ASSESSEE VEHEMENTLY CONTENDED THAT THE ASSESSING OFFICER (AO, FOR SHO RT) HAD PASSED THE ORDER DATED 26.12.2012 U/S 201(1)/201(1A) OF THE INCOME TAX ACT , WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FO R ASSESSEE DREW OUR ATTENTION TO THE LETTER DATED 25/04/2012 (PAGES 25-26 OF PAPER BOOK ), IN WHICH THE ASSESSEE HAS SUBMITTED AS UNDER: IT IS AT THE OUTSET, RESPECTFULLY SUBMITTED THAT TH E AFORESAID ORDER HAS BEEN PASSED BY YOUR HONOUR WITHOUT AFFORDING ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 201(1)/2 01(1A) OF THE ACT (AS MENTIONED IN THE SAID ORDER) WAS NEVER SERVED ON TH E ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT FILE ANY CORRECTION STATEMENT, I F ANY OR REPLY IN RESPONSE TO THE SAME. THAT APART THE JUSTIFICATION REPORT (ANNEXURE A) TO THE CAPTIONED ORDER CONTAINING THE ENTRY WISE DETAILS OF THE DEFAULTS (AS MENTIONE D IN THE SAID ORDER) HAS NOT BEEN SERVED ON THE ASSESSEE ALONGWITH AFORESAID ORDER PA SSED UNDER SECTION 201(1) OF THE ACT. IT MAY KINDLY BE APPRECIATED THAT WITHOUT THE NECES SARY JUSTIFICATION REPORT, THE ASSESSEE IS UNABLE TO FILE THE CORRECTION STATEMENT /RETURN TO RECTIFY THE DEFAULTS ALLEGED IN THE CAPTIONED ORDER FOR THE FINANCIAL YE AR 2006-07. (3.1) HE FURTHER DREW OUR ATTENTION TO STATUTORY PROVISI ON U/S 201(1)/201(1A) OF THE ACT, TO CONTENT THAT THE AO AND THE LD. CIT(A) WER E WRONG IN HOLDING THAT THE ASSESSEE WAS LIABLE TO PAY INTEREST ON INTEREST U/S 201(1)/201(1A) OF I.T. ACT. ITA NO.-2920/DEL/2015. GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED. PAGE 4 OF 6 (4) THE LD. DEPARTMENTAL REPRESENTATIVES (DR, FOR SH ORT) SUBMITTED THAT THE INTEREST ON INTEREST WAS NOT CHARGED U/S 201(1)/201 (1A) OF THE ACT, BUT U/S 220 OF I.T. ACT, IN ACCORDANCE WITH LAW. IN REJOINDER, THE LD. COUNSEL FOR ASSESSEE SUBMITTED THAT, ON PERUSAL OF THE ORDER DATED 26.12.2012 OF AO, IT IS NOT CLEAR WHETHER THE INTEREST ON INTEREST WAS CHARGED U/S 220 OF I.T. ACT OR U/S 201 (1)/201(1A) OF I.T. ACT. (5) WE HAVE HEARD BOTH SIDES CAREFULLY AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE HAVE CONSIDERED THE JUDICIAL PRECEDENTS WHICH WE RE BROUGHT TO OUR ATTENTION. ON PERUSAL OF THE RECORDS, WE FIND THAT, ALTHOUGH IN O RDER DATED 26.02.2012, THE AO HAS REFERRED TO A SHOW CAUSE NOTICE ISSUED TO THE ASSES SEE U/S 201(1A) OF I.T. ACT; THE ASSESSEE HAS DENIED HAVING RECEIVED ANY SUCH SHOW C AUSE NOTICE. IN ASSESSEES APPEAL BEFORE LD. CIT(A), THE ASSESSEE HAD TAKEN A GROUND OF APPEAL TO THE EFFECT THAT THE AO ERRED ON FACTS AND IN LAW IN PASSING ORDER WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, AGAINST THE PRINCIPLES OF NATURAL LAW OF JUSTICE. HOWEVER, THIS GROUND WAS DISMISSED BY THE LD. CIT(A), MERELY ON THE BASI S OF SHOW CAUSE NOTICE MENTIONED BY THE AO AFORESAID ORDER DATED 26.12.2012, DESPITE ASSESSEES CONTENTION THAT NO SUCH SHOW CAUSE NOTICE WAS SERVED ON THE ASSESSEE. WE F IND THAT THE ASSESSEE HAS DENIED RECEIVING ANY SUCH SHOW CAUSE NOTICE FROM THE AO AN D AS THERE IS NOTHING ON RECORD TO SHOW THAT THE SHOW CAUSE NOTICE ISSUED BY THE AO WA S SERVED ON THE ASSESSEE. IN VIEW OF THE ABOVE, WE DIRECT THE AO TO PASS A FRESH ORDE R, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, WE SE T ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE DISPUTED ISSUES TO THE FILE OF THE AO WITH THE DIRECTION TO THE AO TO PASS ITA NO.-2920/DEL/2015. GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED. PAGE 5 OF 6 A DENOVO ORDER, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE; AND AFTER CONSIDERING EVIDENCES FILED BY THE ASSESSEE. (6) IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/ 01/2019 SD/- SD/- (K.N. CHARY) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15.01.2019 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO.-2920/DEL/2015. GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED. PAGE 6 OF 6 DATE OF DICTATION 14/01/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 15/01/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER