Deputy Commissioner of Income Tax, Jabalpur V. The General Manager MPRRDAPIU-1, Jabalpur

ITA 31/JAB/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1093 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 25-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2014
• Court: TRIBUNAL
• Department Lawyers: V B SARGOR
• Assessee Lawyers: PRANAV AGRAWAL
• 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.NOS.31 TO 33/JAB/2014 A.Y. : 2008-09 (26Q-4 TH ), 2009-10(26Q-3 RD ) & 2009-10 (26Q4TH) DY. CIT, TDS, JABALPUR VS GENERAL MANAGER, MPRRDA, PIU-I, PENCH IRRIGATION COLONY, CHHINDWARA APPELLANT RESPONDENT TAN NO. JBPG00921E APPELLANT BY : SHRI V.B.SARGOR, DR RESPONDENT BY : SHRI PRANAV AGRAWAL, ADV. DATE OF HEARING : 28 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 28 . 0 5 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AGA INST THE ORDERS OF CIT(A)-I, JABALPUR, DATED 15.07.2013. 2. THE ASSESSING OFFICER HAS PASSED THE ORDERS 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 PERTAINING TO FORM NO. 26Q (4 TH QUARTER) AND INTEREST THEREON ON NON PAYMENT OF TAX WAS CALCULATED AT RS. 29,99,5 50/- IN I.T.A.NO. 31/JAB/2014, RS.11,64,930/- IN I.T.A.NO. 32/JAB/2014 AND RS. 15,43,460/- IN I.T.A.NO. 33/JAB /2014. 3. THE MATTER CARRIED TO THE LD. CIT(A), WHO ALSO DID NOT CALL FOR REMAND REPORT FROM THE AO AND HE HAS ALLOW ED THE APPEALS WITHOUT GIVING PROPER REASONS AND WITHOUT V ERIFYING WHETHER THE ASSESSEE WAS LIABLE FOR TDS AND WHETHER THERE WAS ANY SHORT DEDUCTION OF TAX AT SOURCE AND WHETHE R THE ASSESSEE IS ENTITLED FOR PAYMENT OF INTEREST ON SUC H RATE OF TDS OR NOT. -: 3: - 3 4. 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 TI LL DATE OF ITS ACTUAL PAYMENT BY THE CONCERNED EMPLOYEE AND ALSO I N THE CASE OF M/S. HINDUSTAN COCA COLA BEVERAGE PVT. LTD. VS. CIT (2007) 293 ITR 226 (SC), WHEREIN, IT HAS BEEN HELD THAT WHEN THE TAX HAS BEEN PAID BY THE DEDUCTEE-ASSESSEE , THE TAX COULD NOT BE RECOVERED ONCE AGAIN FROM THE ASSE SSEE. ALL FACTS ARE NOT BORNE OUT FROM THE ASSESSMENT ORDERS AND THE LD. CIT(A) HAS ALSO NOT VERIFIED THE SAME. THEREFOR E, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS MATTER BACK TO THE FILE OF AO WITH THE DIRECTION THAT THE AO SH ALL VERIFY WHETHER THE PAYMENT SHOWN IN THE ASSESSMENT ORDER I S LIABLE FOR TDS OR NOT. SECONDLY, IF THERE IS ANY SH ORT DEDUCTION OF TAX OR NOT AND IF THERE IS ANY SHORT D EDUCTION -: 4: - 4 OF TAX THAN THE RECEIPT AND THE PAYEE HAS PAID THE TAX OR NOT AND THEY HAVE SHOWN IN THE RETURN OF INCOME HAS TO BE VERIFIED FROM THE CONCERNED ASSESSES. THEREFORE, TH IS ALL REQUIRES VERIFICATION AT THE END OF AO. THE AO AND LD. CIT(A) SHOULD HAVE VERIFIED THESE FACTS BEFORE MAKING THE ASSESSMENT AND LD. CIT(A) SHOULD HAVE ALSO DONE THI S EXERCISE. WE FOUND BOTH THE AUTHORITIES HAVE 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 AO IS DIR ECTED TO VERIFY WHETHER ANY SHORT DEDUCTION OF TAX OR NOT AN D WHETHER THE ASSESSEE IS LIABLE FOR INTEREST OR NOT AND WHETHER THE DEDUCTEE HAS PAID TAX OR NOT. THE ASSES SEE IS DIRECTED TO COOPERATE WITH THE AO AND HE MUST PRODU CE ALL THE RELEVANT EVIDENCE BEFORE THE AO AND THE AO IS F URTHER DIRECTED TO VERIFY THE SAME AND DECIDE THE MATTER A FRESH KEEPING IN MIND THE DECISIONS OF HON'BLE SUPREME CO URT IN THE CASE OF CIT VS. ELI LILLY & CO. (INDIA) (P) LTD AND HINDUSTAN COCA COLA BEVERAGE P. LTD. V. CIT (SUPRA) . -: 5: - 5 5. IN THE RESULT, ALL THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 28 TH MAY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :28 TH MAY , 2015. CPU*