Mackintosh Burn Ltd., Kolkata V. ITO, WD-58(3), TDS, KOLKATA, Kolkata

ITA 306/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1244 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: SAHELI DUTT
• Keywords: Opportunity of being heard; Additional evidence; Revised return
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.306/KOL/2016 ( [ [ / ASSESSMENT YEAR: 2010-11) MACKINTOSH BURN LTD. D-1/1, GILLANDER HOUSE, KOLKATA 1. VS. I.T.O, WARD- 58(3), TDS, KOL 10B, MIDDLETON ROW, KOLKATA 700016. ./ ./PAN/GIR NO. :CALMO0584D (ASSESSEE) .. (RESPONDENT) ASSESSEE BY : SMT. SAHELI DUTT RESPONDENT BY :SHRI ARINDAM BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 18/01/2018 /DATE OF PRONOUNCEMENT : 23/03/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2010-11, IS DIRECTED AGAINST AN ORDER PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS)-24, KOLKATA, DATED 02.12.2015, WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER(TDS) UNDER SECTION 201(1) & 201(1A) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 16.03.2012. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON FACTS AS WELL AS ON LAW, THE ORDER UNDER SECTION 250 PASSED BY THE LEARNED CIT(APPEAL) IS ARBITRARY, PERVERSE, BAD IN LAW AND IS LIABLE TO BE QUASHED. 2. THAT ON FACTS AS WELL AS ON LAW THE LD CIT(APPEAL) HAS ERRED IN NOT GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD AND PASSING THE ORDER EX-PARTIE. 3. THAT ON FACTS AS WELL AS ON LAW, THE LD.CIT(APPEAL) HAS ERRED IN CONFORMING THE ORDER OF THE ASSESSING OFFICER (TDS) AND IN CONSIDERING SHORT DEDUCTION OF TDS WITHOUT UNDERSTANDING THAT THERE WAS SOME MISTAKE IN ENTERING THE AMOUNT MACKINTOSH BURN LTD. ITA NO.306/KOL/2016 PAGE | 2 PAID/CREDITED BY THE ASSESSEE IN THE TDS RETURN IN FORM 26Q WHICH HAS GENERATED THE SHORT DEDUCTION REPORT. 4. THAT ON FACTS AS WELL AS ON LAW, THE LD.CIT(APPEAL) HAS ERRED IN CONFORMING THE ORDER OF THE ASSESSING OFFICER (TDS) AND HAS THEREBY ERRED IN LEVYING INTEREST ON THE ALLEGED SHORT DEDUCTION OF TDS WHEN IN REALITY THERE WAS NO SHORT DEDUCTION OF TDS BY THE ASSESSEE AND THE SHORT DEDUCTION SHOWN BY THE REPORT GENERATED BY THE INCOME TAX DEPARTMENT WAS ONLY DUE TO SOME TECHNICAL MISTAKE IN THE TDS RETURN FILED BY THE ASSESSEE. 5. THAT YOUR ASSESSEE BEGS TO URGE ANY ADDITIONAL GROUND OF APPEAL OR MODIFY ANY GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3.THE BRIEF FACTS APROPOS THIS ISSUE ARE THAT ASSESSEE HAS FILED E-TDS STATEMENT AND CORRECTION STATEMENT AND THE SAID TDS STATEMENT HAS BEEN ANALYZED BY INCOME TAX OFFICER (TDS) ON THE BASIS OF ENTRIES, REPORTED BY THE DEDUCTOR (ASSESSEE). FOR THE PURPOSE OF ANALYSIS, THE INCOME TAX OFFICER (TDS) ALSO USED THE INFORMATION AVAILABLE IN BANK CHALLANS OF TDS DETAILS. THE ANALYSIS REVEALED DEFAULTS I.E., NON-PAYMENT OF TDS AMOUNT DEDUCTED. THE NET DEFAULT NOTICED AFTER THE EXPIRY OF STIPULATED PERIOD OF FILING THE CORRECTION STATEMENTS WERE AS PER THE JUSTIFICATION REPORT WHICH FORMEDPART OF ANNEXURE A OF THE ORDER OF INCOME TAX OFFICER (TDS). IN VIEW OF THE DEFAULTS AS PER ANNEXURE A, THE DEDUCTOR (ASSESSEE)WAS DECLARED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF AMOUNT OF RS.28,22,780/-. 4. ON APPEAL, THE LD CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. NOT BEING SATISFIED WITH THE ORDER OF LD CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US.THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE COMPANY, M/S MACKINTOSH BURN LTD IS ENGAGED IN THE BUSINESS OF CIVIL AND STRUCTURALCONSTRUCTION WORK MAINLY ON BEHALF OF THE GOVERNMENT OF WEST BENGAL. THE LD COUNSEL POINTED OUT THAT THE ASSESSEE HAD COMMITTED SOME MISTAKES INTHE TDS RETURN OF THE FOUR QUARTERS OF FINANCIAL YEAR 2009-2010, WHICH HAD LEAD TO A HUGE DEMAND. THE ASSESSEE, ENGAGES CONTRACTORS AND SUB-CONTRACTORS FOR CARRYING ON CIVILCONSTRUCTION WORK. AS PER THE NORMS OF OPERATION IN THIS LINE OF BUSINESS, A CERTAINPERCENTAGE OF THE CONTRACT VALUE IS GIVEN AS ADVANCE. SINCE AS PER THE MACKINTOSH BURN LTD. ITA NO.306/KOL/2016 PAGE | 3 INCOME TAX ACT, THETDS IS TO BE DEDUCTED AT THE TIME OF PAYMENT OR CREDIT WHICHEVER IS EARLIER. THE ASSESSEE RIGHTLY DEDUCTED TAX AT SOURCE AT THE PRESCRIBED PERCENTAGE FROM THE ADVANCEAMOUNT. AT THE TIME OF MAKING FINAL PAYMENT ON ARRIVAL OF THE INVOICE, THE ASSESSEE DEDUCTS TAX AT SOURCE FROM THE BALANCE AMOUNT. THE LD COUNSEL SUBMITTED THAT THE ASSESSEE, WHILE FILING THE TDS RETURN IN FORM 26Q HAS MADE A MISTAKEINADVERTENTLY. AT THE TIME OF MAKING ADVANCE PAYMENT, THEASSESSEE HAS DEDUCTED TAX AT SOURCE. LN THE TDS RETURN IT HAS SHOWN THE ADVANCEAMOUNT AS PAYMENT AND SHOWED THE TDS THEREON. LATER, THE ASSESSEE, ON RECEIVING THEINVOICE MADE FINAL PAYMENT AND DEDUCTED TAX AT SOURCE FROM THE BALANCE AMOUNT.HOWEVER, IN THE TDS RETURN, INSTEAD OF SHOWING THE BALANCE AMOUNT, AS AMOUNT PAID, ITHAS SHOWN THE FULL VALUE OF THE INVOICE, AS AMOUNT PAID.HENCE, THE AMOUNT PAID/CREDITED HAS BEEN INADVERTENTLY SHOWN MORE THAN THE ACTUALAMOUNT PAID AND HAS LEAD THE DEPARTMENT TO CONCLUDE THAT THERE IS SHORT DEDUCTION OF TAX. THE ASSESSEE HAS SINCE FILED REVISED TDS RETURN FOR MAKING THE SAID CORRECTION. COPIESOF ACKNOWLEDGEMENTS EVIDENCING FILING OF THE REVISED TDS RETURN OF THE FOUR QUARTERS OFFINANCIAL YEAR 2009-2010 WERE FILED BY THE LD COUNSEL, BEFORE US. THE SAID REVISED TDS RETURNS HAVE ALSO BEEN PROCESSED BY THE INCOME TAXDEPARTMENT AND FROM THE TRACES WEBSITE DEFAULT IS SEEN FOR ONLY 2 QUARTERS, THAT IS, FOR QUARTER-2AND QUARTER-4. THE COPIES OF THE DEFAULT SUMMARY OF QUARTER 2 AND QUARTER-4 WERE ALSO FILED BY THE LD COUNSEL BEFORE US.FROM THE SAID DEFAULT SUMMARY IT MAY BE SEEN THAT FOR QUARTER 2, THERE IS A DEMAND OF RS12820, CONSISTING RS 6393 DUE TO SHORT DEDUCTION AND RS 6426 DUE TO INTEREST ON SHORT DEDUCTION. THE LD COUNSEL SUBMITTED THAT THE SHORT DEDUCTION IS DUE TO THE FACT THATTAX AT SOURCE HAS BEEN CORRECTLY DEDUCTED UNDER SECTION 194C FROM PAYMENT MADE TO OTIS ELEVATOR CO (LNDIA) LTD FOR MAINTENANCE OF LIFT AT THE ASSESSEE'S PREMISES BUT IT WAS WRONGLY DEPOSITED UNDER SECTION 194J AND HAS ALSO BEEN SHOWN IN THE TDS RETURNAS DEDUCTION UNDER SECTION 194J OF THE ACT.HOWEVER, THE CORRECTION OF THE TDS SECTION IN THERETURN IS NOT PERMISSIBLE THEREFORE, THE ASSESSEE HAS FILED A LETTER FOR CORRECTION OF THE SAME WITHTHE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE- MACKINTOSH BURN LTD. ITA NO.306/KOL/2016 PAGE | 4 2 (TDS), AS SUCH CORRECTION CAN ONLYBE MADE BY THE TDS OFFICER. THE COUNSEL SUBMITTED THE COPY OF THE SAID LETTER BEFORE THE BENCH. 5. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER(TDS), WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 6. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, WE NOTE THAT SINCE THE ASSESSEE HAS FILED REVISED TDS RETURN FOR MAKING THE CORRECTION IN THE TDS AMOUNT AND THE LD COUNSEL FOR THE ASSESSEE HAS FILED BEFORE US,THE COPIESOF ACKNOWLEDGEMENTS EVIDENCING FILING OF THE REVISED TDS RETURN OF THE FOUR QUARTERS OFFINANCIAL YEAR 2009-2010. WE NOTE THAT ASSESSEE HAS NEITHER SUBMITTED THE CORRECTION STATEMENT AND REVISED TDS RETURN BEFORE THE LD CIT(A) NOR BEFORE THE LD ASSESSING OFFICER THEREFORE IT IS AN ADDITIONAL EVIDENCE BEFORE US WHICH NEEDS TO BE EXAMINED BY THE ASSESSING OFFICER. 6.1 WE NOTE THAT, AS LD COUNSEL FOR THE ASSESSEE, SUBMITTED BEFORE US THAT THE SAID REVISED TDS RETURNS HAVE ALSO BEEN PROCESSED BY THE INCOME TAXDEPARTMENT AND FROM THE TRACES WEBSITE DEFAULT IS SEEN FOR ONLY 2 QUARTERS, THAT IS, FOR QUARTER-2AND QUARTER-4. THE COPIES OF THE DEFAULT SUMMARY OF QUARTER 2 AND QUARTER-4 WERE ALSO FILED BY THE LD COUNSEL BEFORE US. FROM THE SAID DEFAULT SUMMARY IT MAY BE SEEN THAT FOR QUARTER 2, THERE IS A DEMAND OF RS12,820/-,( THAT IS, RS 6,394/- DUE TO SHORT DEDUCTION + RS 6,426/- DUE TO INTEREST ON SHORT DEDUCTION). 6.2 WE NOTE THAT AS PER ASSESSMENT ORDER MADE BY INCOME TAX OFFICER(TDS), THE TOTAL AMOUNT OF TDS PAYABLE BY ASSESSEE COMES TO THE TUNE OF RS.28,22,780/- AND SINCE THE ASSESSEE HAS RECTIFIED THE MISTAKE, BY FILING REVISED TDS RETURN AND CORRECTION STATEMENTS, AS DISCUSSED ABOVE, THEREFORE TOTAL TDS PAYABLE BY THE ASSESSEE COMES TO THE TUNE OF RS. 12,860/-. WE ARE OF THE VIEW THAT THESE DOCUMENTS AND CORRECTION STATEMENT SHOULD BE EXAMINED BY THE ASSESSING OFFICER, THEREFORE, WE DIRECT THE ASSESSING OFFICER TO MACKINTOSH BURN LTD. ITA NO.306/KOL/2016 PAGE | 5 EXAMINE THE CORRECTION STATEMENT, TRACES AND REVISED RETURN OF TDS FILED BY THE ASSESSEE AND ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW. WE ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE THE ASSESSING OFFICER DILIGENTLY AND PARTICIPATE IN THE ASSESSMENT PROCEEDINGS AND PURSUE THE APPEAL IN ACCORDANCE TO LAW. 6.3 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE, IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23/03/2018. SD/ - (A. T. VARKEY) SD/ - (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED 23/03/2018 ( RS, SPS) / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE ASSESSEE- MACKINTOSH BURN LTD. 2. / THE RESPONDENT- I.T.O, WARD- 58(3), TDS, KOL 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE.