District Health Society, Hardoi V. Income Tax Officer (TDS), Bareilly

ITA 312/LKW/2014

• Counselvise Citation: 31223714 RSA 2014
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-09-2014
• Assessment Year: 2011-2012
• Appeal Filed On: 24-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: S C AGRAWAL
• Keywords: Opportunity of being heard
• Section: 6; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO S . 312&313/LKW/2014 ASSESSMENT YEAR S : 2011 - 12 & 2012 - 13 DISTRICT HEALTH SOCIETY THROUGH CHIEF MEDICAL OFFICER HARDOI V. INCOME TAX OFFICER ( TDS ) BAREILLY PAN /PAN : LHND06402E (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. S. C. AGRAWAL, ADVOCATE RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 25 09 2014 DATE OF PRONOUNCEMENT: 15 10 2014 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON COMMON GROUNDS. FOR THE SAKE OF REFERENCE, THE GROUNDS IN I.T.A. NO.312/LKW/2014 ARE EXTRACTED HEREUNDER: - 1 . THAT THE LD. CIT ( APPEAL) IS WRONG IN PASSING EX - PARTE ORDER DEPRIVING THE APPELLANT OPPORTUNITY OF BEING HEARD. 2 . THAT THE LD. CIT (APPEAL) IS WRONG IN PASSING THE IMPUGNED ORDER WITHOUT SERVICE OF NOTICE TO THE APPELLANT RENDERING THE ORDER INVALID. 3 . THAT THE APPELLANT DID N OT RECEIVE THE SO CALLED NOTICE DATED 20.12.2013 SAID TO HAVE BEEN ISSUED FOR HEARING OF APPEAL ON 09.01.2014 BY THE LD. CIT (APPEAL). 4 . THAT THE TAX AUTHORITIES ARE WRONG IN HOLDING THAT THE APPELLANT PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : SOCIETY WAS LIABLE TO DEDUCT TAX U/S 194J OF THE INCOME TAX ACT ON THE PAYMENT MADE TO EMPLOYEES. 5 . THAT THE TAX AUTHORITIES ARE WRONG IN REJECTING THE CLAIM OF APPELLANT THAT AS THE PAYMENT WAS MADE TO THE PERMANENT EMPLOYEES SECTION 194J OF THE INCOME TAX ACT WAS NOT APPLICABLE IN THE CASE OF APPELLANT . 6 . THAT SE CTION 201 (1) OF THE INCOME TAX ACT WAS WRONGLY INVOKED BY THE TAX AUTHORITIES IGNORING THE FACT THAT APPELLANT WAS NOT LIABLE TO DEDUCT TAX U/S 194J OF THE INCOME TAX ACT AND IS NOT AN ASSESSEE IN DEFAULT. 7 . THAT LEVY OF TAX RS.19,93,288/ - AS AMOUNT OF ALLE GED SHORT DEDUCTION OF TAX IN RESPECT OF PAYMENT MADE U/S 194J IS UNJUSTIFIED AND UNCALLED - FOR. 8 . THAT LEVY OF INTEREST U/S 201 (1) (A) RS.2,98,992/ - IS WRONG INASMUCH AS THE APPELLANT WAS NOT LIABLE TO DEDUCT TAX AT SOURCE U/S 201 (1) OF THE INCOME TAX ACT. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISMISSED THE APPEALS OF THE ASSESSEE WITHOUT AFFORDING PROPER OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN AFFIDAVIT OF THE ASSESSEE STATING THEREIN THAT THE NOTICE DATED 20.12.2013 SAID TO HAVE BEEN ISSUED BY THE LD. CIT(A) WAS NEVER SERVED OR REFUSED IN THE OFFICE OF THE ASSESSEE - SOCIETY. IT WAS ALSO CONTENDED THAT THE LD. CIT(A) HAS ADJUDICATED THE ISSUES SUMMARILY WITHOUT ADJUDICATING THE SAME ON MERIT. 3 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) WITH THE SUBM ISSION THAT THE LD. CIT(A) HAS AFFORDED PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND WHEN THE ASSESSEE DID NOT APPEAR DESPITE SERVICE OF NOTICE OF HEARING, THE LD. CIT(A) HAS DECIDED THE APPEAL EX - PARTE. 4 . HAVING CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A) IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THOUGH THE LD. CIT(A) HAS ISSUED TWO NOTICES AND RECORDED A FINDING THAT THE LAST NOTICE WAS RECEIVED BACK WITH THE REMARK OF REFUSAL, BUT THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT STATING THEREIN THAT THE LAST NOTICE DATED 20.12.2013 WAS NEITHER SERVED NOR RECEIVED BY THE ASSESSEE. IN SUPPORT OF ITS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A COPY OF THE RECEIPT AND DISPATCH REGISTER OF THE ASSESSEE WITH THE SUBMISSION THAT WHATEVER DAK IS RE CEIVED IN THE OFFICE OF THE ASSESSEE, IT WAS DULY RECORDED IN THE RECEIPT AND DISPATCH REGISTER. HAVING CAREFULLY EXAMINED THESE DOCUMENTS, WE ARE OF THE VIEW THAT TH E NOTICE DATED 20.12.2013 WAS NOT SERVED UPON THE ASSESSEE. THEREFORE, THE MATTER REQUIR ES A FRESH ADJUDICATION BY THE LD. CIT(A). ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE APPEAL AFRESH ON MERIT AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBE R DATED: 15 TH OCTOBER , 2014 JJ: 2609 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )