THE COLLECTOR LAND ACQUISITION, SRINAGAR V. INCOME TAX OFFICER, (TDS) , SRINAGAR

ITA 300/ASR/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9832 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-11-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 133(6); 201(1); 201; 194L

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. N.K.CHOUDHRY, JUDICIAL MEMBER AND DR. A.L.SAINI, ACCOUNTANT MEMBER ITA NO. 300/ASR/2017 ASSESSMENT YEAR: 2011-12 THE COLLECTOR LAND ACQUISITION, PHE CIRCULAR ROAD PROJECT, GOVT. SAFA KADAL, SRINAGAR, KASHMIR. VS. INCOME TAX OFFICER, WARD-TDS, SRINAGAR. [PAN:AMRC1 1370C] (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSIO NS RESPONDENT BY: SH. CHARAN DASS (LD. DR) DATE OF HEARING: 28.11.2019 DATE OF PRONOUNCEMENT: 30.12.2019 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 17.01.2017 PASSED BY THE LD. CIT(A)-J&K, JAMMU U/S 250(6) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER CALLED AS THE ACT). 2. AS PER INFORMATION U/S 133(6) OF THE ACT, THE COMPENSATION/ENHANCED COMPENSATION HAS BEEN PAID BY THE COLLECTOR, LAND ACQUISITION, SRINAGAR FOR ACQUISITION O F LAND DURING THE FINANCIAL YEAR: 2010-11 RELEVANT FOR THE ASST. YEAR 20 11-12. IT WAS OBSERVED BY THE ASSESSING OFFICER THAT IN SOME OF THE CASES PERMANENT ACCOUNT NUMBERS (PAN'S) WERE NOT FURNISHED AND THE TAX WAS DEDUCTED @ 10.2% INSTEAD OF 20%, THEREFORE, THE A SSESSEE WAS ITA N0.300/ASR/ 2017 (A.Y.2011-12) THE COLLECTOR LAND ACQUI SITION VS. ITO 2 TREATED AS ASSESSEE IN DEFAULT WITHIN THE MEANING OF SEC. 201 R.W. SEC.201 (IA) AND SEC. 194L OF THE I.T. ACT, 1961 QUA P ERSONS MENTIONED IN THE LIST ENCLOSED WITH THE ASSESSMENT ORDER AND CONSEQUENTLY A DEMAND OF RS.46,59,578/- WAS RAISED U/S 2 01 OF THE ACT ALONG WITH INTEREST OF RS.9,37,989/- U/S 201(1) OF THE ACT. 3. AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED THE FIRST APPEAL BEFORE THE LD. CIT(A) WH O VIDE IMPUGNED ORDER AFFIRMED THE ACTION OF THE AO, THEREAFTER, ON AGGRIEVED , THE ASSESSEE PREFERRED THE INSTANT APPEAL. 4. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS CLAIMED THAT T HE ASSESSEE/PR IS A GOVERNMENT DEPARTMENT OF J&K GOVERNMENT AND DURING THE FINANCIAL YEAR HAS COMPULSORY ACQUIRED LAND AND BUILDING FROM VARIOUS RESIDENTS FOR THE PUBLIC PURPOSE. THE PR W HILE GRANTING COMPENSATION FOR COMPULSORY ACQUISITION HAS DEDUCTED TDS @ 10.2% ON THE TOTAL AMOUNT PAID TO 42 PERSONS. THE COMPLETE D ETAILS IN THE FORM OF NAME, ADDRESS, PAN, AMOUNT PAID, TDS DEDUCTED OF ALL THE PERSONS TO WHOM COMPENSATION WAS GRANTED IS ENCLOSED, (LIST ENCLOSED). THE ITO-WARD TDS HAS MADE THE ADDITION OF RS. 46, 59,578.00 BY LEVYING TDS @ 20% FOR NON-AVAIL ABILITY OF PAN,S , WHICH IS NOT CORRECT , AS THE DEPARTMENT HAS OBTAINED CO PY OF PAN,S FROM ALL PERSONS TO WHOM COMPENSATION HAS BEEN PAID. TH E ASSESSE COULD NOT SUBMIT THE COPY OF PAN,S BEFORE ITO-WARD TDS DURING TDS PROCEEDINGS DUE TO THE FACTS, THAT THE OFFICERS WORKING I N THE DEPARTMENT AT THE TIME OF TDS DEDUCTION AND AT THE T IME OF SUBMISSION OF INFORMATION BEFORE ITO-WARD TDS WERE DIF FERENT, WHICH TOOK SOME TIME, MEANWHILE THE ITO- TDS HAS COMPLETED THE ITA N0.300/ASR/ 2017 (A.Y.2011-12) THE COLLECTOR LAND ACQUI SITION VS. ITO 3 ASSESSMENT. THE PR HAS COLLECTED THE COPY OF PAN,S FROM THE PERSON TO WHOM COMPENSATION HAS BEEN GRANTED/PAID. THE PR HAS ALSO FILED THE QUARTERLY TDS RETURN, WHICH ITSELF IS CONCLUSIVE, THA T THE PR HAS COLLECTED PAN AT THE TIME OF DEDUCTION OF TDS, EXCEPT F OR A FEW PERSONS OF WHOSE PAN CARDS WERE NOT AVAILABLE. IT IS APPARENT TO MENTION, THAT TDS IS NOT A TAX, BUT MEANS OF COLLECTING TAX, THEREFORE THERE IS NO BENEFIT AT ALL T O THE PR IN NON- DEDUCTION/LESS DEDUCTION OF TDS. THE ASSESSEE IS A GOVERNMEN T DEPARTMENT AND EMPLOYEES DEALING WITH SUCH FILES GENER ALLY ARE NOT ONE, BUT GET TRANSFERRED OFTEN. THE PR THOUGH HIS COUNSEL SUBMITTED COMPLETE DETAILS OF PERSONS TO WHOM COMPENSATION OF COMPULSORY ACQUISITION WAS GRANTE D ALONG WITH COPY OF PAN,S OF THE PERSONS, HOWEVER THE LD. CIT (APPEAL) HAS NOT CONSIDERED THE SAME, WHILE FRAMING THE APPEAL ORDE R, THEREFORE HAS NOT ACTED FAIRLY AND NOT DONE JUSTICE WITH THE P R. 4.1 CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES AS THE ASSESSEE IS GOVT. OFFICER AND HAD NO PERSONAL INTEREST IN N OT SUBMITTING THE PAN WHOM COMPENSATION HAS BEEN PAID AND IT IS ALSO A FACT THAT OFFICER WORKING IN THE DEPARTMENT AT THE TI ME OF TDS DEDUCTION AND AT THE TIME OF SUBMISSION OF INFORMATION BEFORE ITO- WARD TDS WERE DIFFERENT, WHICH RESULTED INTO LAPSE OF TIME. THOUGH IT IS CLAIMED BY THE ASSESSEE THAT THE DETAILS HAVE BEEN SUBMI TTED IN THE FORM OF ANNEXURES BEFORE THE LD. CIT(A), HOWEVER, FR OM THE IMPUGNED ORDER, IT DOES NOT REFLECT SO. CONSIDERING THE PECULIAR FACTS AND THE CIRCUMSTANCES AND THE INTRICACIES INVOLVED AND FO R THE JUST DECISION OF THE CASE AND FOR THE END OF LITIGATION, WE ARE INCLINED TO SET ASIDE THE ORDERS PASSED BY THE AUTHORITIES BELOW AND REM IT THIS ISSUE ITA N0.300/ASR/ 2017 (A.Y.2011-12) THE COLLECTOR LAND ACQUI SITION VS. ITO 4 QUA NON-SUBMISSION OF PAN,S TO THE ASSESSING OFFICER FOR DE CISION AFRESH WHILE TAKING INTO CONSIDERATION THE DETAILS ALRE ADY SUBMITTED OR TO BE SUBMITTED BY THE ASSESSEE, SUFFICE TO SAY WHILE AFFOR DING PROPER AND REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSE SSEE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /12/2019. SD/- SD/- (DR. A.L.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 30/12/2019. /PK/ PS. COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THEN CIT(APPEALS) 5. SR DR, I.T.A.T. AMRITSAR 6. GUARD FILE TRUE COPY BY ORDER