M/s PAN Realtors P. Ltd., Noida V. ITO, (TDS), New Delhi

ITA 3121/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3251 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL GANDHI
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; TDS; Set aside
• Section: 201(1); 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F : NEW DELHI) (THROUGH VIDEO CONFERENCE ) BEFORE SHRI O.P.KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO. 3119/DEL./2017, A. Y. 2010-11 ITA NO. 3120/DEL./2017, A.Y. 2011-12 ITA NO. 3121/DEL./2017, A.Y. 2012-13 ITA NO. 3122/DEL./2017, A.Y. 2013-14 M/S. PAN REALTORS (P) LTD. VS. ITO (TDS) GH-01, SECTOR-70 WARD 51(1), NOIDA NEW DELHI PAN : AAFCP2034D ASSESSEE BY : SHRI RAHUL KHARE, CA REVENUE BY : SHRI ANIL GANDHI, SR. DR DATE OF HEARING : 13.10.2021 DATE OF ORDER : 13.10. 2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER SINCE COMMON QUESTION OF FACTS AND LAW IS INVOLVED IN ALL THE AFORESAID APPEALS, THE SAME ARE TAKEN UP TOGETH ER FOR DISPOSAL BY WAY OF COMPOSITE ORDER TO AVOID REPETITION OF DI SCUSSION. ITA NO. 3119 & ORS. 2 2. APPELLANT, M/S. PAN REALTORS (P) LTD., NOIDA (UP ) (HEREINAFTER REFERRED TO AS ASSESSEE) BY FILING THE AFORESAID APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDERS DA TED 27.02.2017 PASSED BY LD. CIT(A) FOR A.Y. 2010-11, 2011-12, 20 12-13 & 2013-14 ON THE IDENTICAL GROUNDS, EXCEPT DIFFERENC E IN FIGURES OF DEMAND, INTER ALIA THAT :- ITA NO. 3119/DEL/2017, A.Y. 2010-11 1. THE THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF AO, TDS WARD 51(1) N EW DELHI U/S 201 (1)/201 (1 A) OF THE IT ACT, WHICH FA CTUALLY IS ERRONEOUS, UNLAWFUL, ARBITRARY, WITHOUT JURISDIC TION AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE . 2. THE LEARNED AO HAS ERRED IN INVOKING THE PROVIS IONS OF S.1941 OF THE IT ACT ARBITRARILY, UNLAWFULLY AND ERRONEOUSLY AND THE ID. CIT (A) HAS ERIED ON FACTS AND IN LAW IN UPHOLDING THE SAME. 3. THE ID. AO HAS ERRED ON FACTS AND IN LAW IN HO LDING THE ASSESSE IN DEFAULT U/S 201 (1 )/201 (1 A) AND R AISING THE UNLAWFUL AND ERRONEOUS DEMAND OF TAX (TDS) WHIC H WAS NEITHER DEDUCTIBLE NOR DEDUCTED THAT TOO WITHOU T GOING THROUGH THE FACTS, AND COGENT EVIDENCES AND SUBMISSIONS AND THE ID. CITA HAS ERRED IN UPHOLDING THE SAME. 4. THE ORDER OF THE ID. AO IS AGAINST THE PRINCIPLE S OF NATURAL JUSTICE AND THE IDCIT(A)HAS ERRED IN UPHOLD ING THE SAME. 5. THE LEARNED CITA HAS ERRED IN LAW IN FAILING T O DECIDE THE CASE ON MERITS OF THE CASE. 6. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N SUSTAINING THE DEMAND OF RS. 22,94,962/- , 33,18,37 6/-, 19, 96,461/- & 18,21,988/- (INCLUDING INTEREST) IN A.Y. 2010- 11, 2011-12, 2012-13 & 2013-14 RESPECTIVELY ON ACC OUNT OF NON DEDUCTION OF TDS ON LEASE RENT PAID TO NEW O KHLA INDUSTRIAL DEVELOPMENT AUTHORITY (NOIDA). ITA NO. 3119 & ORS. 3 PRAYER : 1. THE ORDER OF THE A.O. AS UPHELD BY THE LEARNED GJT-A BE DECLARED AS NULL AND VOID AB-INITIO, DEMAN D MADE BY AO AND UPHELD BY LD. CITA BE DELETED, AND T HE FACTS OF NO LIABILITY TO DEDUCT AND PAY TDS ON LEAS E RENT PAID TO NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY (NOIDA) BE ACCEPTED AS CORRECT AS PER LAW; OR SUCH OTHER ORDER AS YOUR HONORS MAY DEEM FIT UNDER THE CIRCUMSTANCES OF THE CASE BE PASSED. THE APPELLANT CRAVES LEAVE AND SANCTION OF THE HON BLE ITAT TO FILE ADDITIONAL EVIDENCE, IF SO REQUIRED FO R PROPER PROSECUTION OF THE CASE, BASED ON FACTS AND CIRCUMSTANCES, WHICH HAS NOT BEEN OR COULD NOT BE EDUCED OR FILED BEFORE LOWER AUTHORITIES EITHER BEC AUSE PROPER AND SUFFICIENT OPPORTUNITY WAS NOT PROVIDED OR BECAUSE IT WAS NOT SOLICITED OR ITS NEED WAS NOT APPRECIATED. 2. THE APPELLANT CRAVES LEAVE TO AND PERMISSION OF THE HONBLE ITAT TO ADD TO OR ALTER ANY OF THE GROU NDS OF APPEAL AT ANY TIME UP TO THE FINAL DECISION OF T HE APPEAL. 4. ASSESSEE BY FILING APPLICATION UNDER RULE 29 OF THE ITAT RULES, 1962 (RULES) SOUGHT TO BRING ON RECORD CERT IFICATE ISSUED BY CHARTERED ACCOUNTANT (CA) OF NOIDA AUTHORITIES ON THE GROUND THAT THE SAME WERE NOT ISSUED DESPITE NUMEROUS REQU EST DURING ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS AND SAM E ARE NECESSARY FOR DECIDING THE ISSUE IN CONTROVERSY. SINCE, CA CE RTIFICATE SOUGHT TO BE BROUGHT ON RECORD BY THE ASSESSEE IS NECESSAR Y TO WORK OUT THE PAYMENT OF LEASE RENT PAID BY THE ASSESSEE TO NOIDA AUTHORITIES BY DEDUCTING TAX AT SOURCE (TDS), THE ISSUE IN CONTROV ERSY CANNOT BE DECIDED ONCE FOR ALL, EXCEPT WITH CERTIFICATE ISSUE D BY THE CA. ITA NO. 3119 & ORS. 4 CONSEQUENTLY, APPLICATIONS FILED BY THE ASSESSEE FO R LEADING ADDITIONAL EVIDENCE ARE ALLOWED WITHOUT PREJUDICE T O THE MERITS OF THESE CASES. 5. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE: THE DEDUCTOR ASSESSEE COMP ANY IS ENGAGED IN THE BUSINESS OF REAL ESTATE CONSTRUCTION FOR RES IDENTIAL FLATS. DURING THE SURVEY PROCEEDINGS QUA COMPLIANCE OF PRO VISIONS OF TDS, IT HAS COME ON RECORD THAT TDS WAS NOT DEDUCTE D IN RESPECT OF INTEREST / LEASE RENT PAID BY THE ASSESSEE TO THE N OIDA AUTHORITY, UP. AO FURTHER NOTICED FROM THE DETAILS OF TDS STATEMEN T FILED BY THE ASSESSEE FOR A.Y. 2010-11, 2011-12, 2012-13 & 2013- 14 THAT IT HAS NOT FILED QUARTERLY STATEMENT WITHIN PRESCRIBED PER IOD U/S 200(3) OF THE ACT BUT FILED THE SAME WITH THE DELAY OF 25 DAY S TO 104 DAYS. AO REACHED THE CONCLUSION THAT SINCE THE ASSESSEE H AS FAILED TO DEDUCT TDS U/S 194 -1 OF THE ACT ON LEASE RENT PAID TO NOIDA, IT IS TREATED AS AN ASSESSEE-IN-DEFAULT U/S 201(1) OF THE ACT IN RESPECT OF TDS OF RS. 22,94,962/-, 33,18,376/-, 19,96,461/- & 18,21,988/- (INCLUDING INTEREST) IN A.Y. 2010-11, 2011-12, 2012 -13 & 2013-14 RESPECTIVELY AND CONSEQUENTLY DEMAND HAS BEEN RAISE D. 6. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) B Y WAY OF FILING APPEALS WHO HAVE PARTLY ALLOWED THE APPEALS. FEELING ITA NO. 3119 & ORS. 5 AGGRIEVED ASSESSEE DEDUCTOR HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE AFORESAID APPEALS. 7. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. LD. CIT(A) PARTLY ALLOWED THE APPEALS FILED BY T HE ASSESSEE BY RETURNING FOLLOWING FINDINGS :- 4.11 THE ALTERNATE CLAIM OF THE APPELLANT HAS MERIT AND IN VIEW OF THE HONBLE DELHI HIGH COURTS DECISION, THE APPELLANT IS NOT CONSIDERED AN ASSESSEE-IN-DEFAULT. HOWEVER, IT DOES NOT ABSOLVE THE APPELLANT FROM THE INTEREST LIABILITY U /S 201(1A), EVEN IF IT IS NOT CONSIDERED TO BE AN ASSESSEE-IN-DEFAULT. HENCE, IN VIEW OF THE PROVISIONS OF THE FIRST PROVISO TO SECTION 201(1), THE ASSESSING OFFICER IS DIRECTED TO GIVE OPPORTUNITY TO THE APPELLANT TO PRODUCE THE CERTIFICATE IN FORM 26A AS PER RULE AND MODIFY THE DEMAND AFTER ASCERTAINING THAT THE DEDUCTEE HAS TAKEN INTO ACCOUNT SUCH SUM FOR COMPUTING ITS INCOME. THE AO IS FURTHER DIRECTED TO RE-CALCULATE THE INTEREST U/S 201(1A) FROM THE DATE ON WHICH TAX WAS DEDUCTIBLE TILL DATE OF FILING OF RETURN BY THE DEDUCTEE. THIS CLAIM OF THE APPELLANT IS THEREFORE PARTLY ALLOWED. 9. BARE PERUSAL OF THE AFORESAID FINDINGS RETURNED BY LD. CIT(A) SHOWS THAT THOUGH ASSESSEE HAS NOT BEEN CONS IDERED AS ASSESSEE-IN-DEFAULT BUT WAS GIVEN PART RELIEF SOUGH T FOR BY DIRECTING THE AO TO RECALCULATE THE INTEREST U/S 20 1(1A) OF THE ACT ITA NO. 3119 & ORS. 6 ON FURNISHING CERTIFICATE IN THE FORM OF 26A, BUT S INCE ASSESSEE HAS FAILED TO FURNISH THE CERTIFICATE, AO HAS GIVEN THE APPEAL EFFECTS BY DISALLOWING THE SAME AMOUNT AGAIN. 10. NOW, BY MOVING APPLICATION UNDER RULES 29 OF TH E ITAT RULES, 1962, ASSESSEE SOUGHT TO BRING ON RECORD CE RTIFICATE OF CA OF THE NOIDA AUTHORITIES. SINCE, CONTROVERSY AT HAN D CANNOT BE DECIDED FINALLY AND COMPLETELY EXCEPT BY EXAMINING THE CERTIFICATE ISSUED BY THE CA, THE SAME ARE ENTERTAINED IN ADDIT IONAL EVIDENCE, WHICH NEED TO BE EXAMINED/ NOTIFIED BY THE AO. SO, CASE IS REMITTED BACK TO THE AO TO VERIFY THE SAME AND DECI DE THE ISSUE AFRESH AFTER PROVIDING OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. CONSEQUENTLY, AFORESAID APPEALS FILED BY THE ASSESS EE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 13 TH OCTOBER, 2021. SD/- SD/- (O.P.KANT) (KULDIP SING H) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH OCTOBER, 2021 *BINITA* COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) 5.CIT(ITAT), NEW DELHI. AR, ITAT