Jamia Millia Islamia, New Delhi V. ACIT, New Delhi

ITA 3279/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5616 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 22-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL
• Assessee Lawyers: PUNEET SAKHUJA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: BENCH D, NEW DELHI BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3279/DEL/2015 AY: 2011-12 JAMIA MILLIA ISLAMIA, ADMN. BLOCK, MAULANA MOHD, ALI JAUHAR MARG, JAMIA NAGAR, OKHLA, NEW DELHI. AAATJ3067G VS . ACIT CIRCLE 75(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. PUNEET SAKHUJA, CA & SH. RAJEEV AHUJA, CA RESPONDENT BY : MS. NAINA SOIN KAPIL, SR. DR DATE OF HEARING : 22/01/2019 DATE OF PRONOUNCEMENT : 01/02/2019 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST O RDER DATED 17/03/15 PASSED BY LD. CIT (A)-41, NEW DELHI ON FOL LOWING GROUNDS OF APPEAL: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, BOTH THE LOWER AUTHORITIES HAVE ERRED IN SUSTA INING AN ADDITION U/S 201(1)/201(1A)/206C(6)/206C(6A)/206C(7 ) OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF NON DEDUCTIO N OF TDS U/S 194C OF THE INCOME TAX ACT, 1961. ITA NO. 3279DEL/2015 2 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, ON THE BASIS OF EXPLANATION, DOCUMENTS/EVIDENC ES FURNISHED BEFORE, BOTH THE LOWER AUTHORITIES HAVE F AILED TO UNDERSTAND THE NATURE OF TRANSACTION CARRIED OUT BY THE ASSESSEE WITH RITES WHICH ARE OUTSIDE THE PURVIEW O F SECTION 194C OF INCOME TAX ACT, 1961. 3. THAT WITHOUT PREJUDICE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, TDS PROVISIONS HAVE BEEN PR OPERLY COMPLIED WITH BY THE APPELLANT. 4. THAT NO PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD HAS BEEN PROVIDED BY THE LOWER AUTHORITIES. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR VARY ANY OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME O F HEARING. BRIEF FACTS OF THE CASE ARE AS UNDER : 2. ASSESSEE IS AN INSTITUTION ESTABLISHED AT ALIGAR . DURING THE YEAR UNDER CONSIDERATION ASSESSEE ENTERED INTO CONTRACT WITH RITES ON 01/10/07 TO EXECUTE WORK CONTRACT DURING COMMONWEAL TH GAMES 2010. LD. AO WAS OF THE VIEW THAT, AS PER PROVISIONS OF S ECTION 194C ASSESSEE WAS REQUIRED TO DEDUCT TDS WHILE CREDITING AMOUNTS OF RITES OR WHILE MAKING PAYMENTS TO THEM WHICHEVER WAS EARLIER. LD.A O ISSUED NOTICE REQUIRING ASSESSEE TO FURNISH DETAILS REGARDING TAX DEDUCTED AT SOURCE, WHILE MAKING PAYMENT OF RS.41,57,00,000/-. AS NO DE TAILS WERE FILED AND NOBODY APPEARED IN THE CASE, LD.AO INITIATED PROCEE DINGS UNDER SECTION 201 (1)/201 (1A) FOR YEAR UNDER CONSIDERATION AND C OMPUTED PENALTY AT RS.1,22,34,885/-. 3. AGGRIEVED BY ORDER OF LD.AO, ASSESSEE PREFERRED APPEAL BEFORE LD.CIT (A). ASSESSEE FILED ADDITIONAL EVIDENCE UNDE R RULE 46A ON WHICH REMAND WAS CALLED FOR FROM LD.AO. IN REMAND REPORT LD.AO OBSERVED THAT, DUE TO NON-SUBMISSION OF DETAILS/EVIDENCES BY ASSESSEE, IT WAS CONCLUDED THAT ASSESSEE HAS NOT DISCHARGED ITS OBLI GATION OF DEDUCTING TAX AT SOURCE. ITA NO. 3279DEL/2015 3 4. LD.CIT (A) UPON GOING THROUGH VARIOUS DOCUMENTS SUBMITTED BY ASSESSEE, OBSERVED THAT ASSESSEE CANNOT BE TREATED AS ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE ACT TO THE EXTENT OF PA YMENT OF RS.1,85,97,104/-. LD.CIT (A) RESTRICTED LIABILITY A T RS.8,14,02,896/-, AS TDS WAS NOT DEDUCTED AND ASSESSEE FAILED TO PROVIDE ANY EVIDENCE. 5. AGGRIEVED BY ORDER OF LD.CIT (A), ASSESSEE IS IN APPEAL BEFORE US NOW. 6. LD.AR SUBMITTED THAT SUM OF RS.10,00,00,000/- PA ID BY ASSESSEE TO RIETS ARE IN THE NATURE OF ADVANCE IN THE HANDS OF RECIPIENT. IT WAS SUBMITTED THAT RIETS HAS ACTED AS MERE PASS THROUGH ENTITY IN THIS REGARD, INASMUCH AS THE SAID AMOUNT WAS PAID BY RIE TS TO CONTRACTORS WHO WERE ENGAGED BY IT ON WHICH RIETS DEDUCTED TDS AT APPLICABLE RATES. IT WAS THUS SUBMITTED THAT ASSESSEE CANNOT B E HELD LIABLE TO DEDUCT TAX AT SOURCE UNDER SECTION 194C OF THE ACT ON PAYMENTS MADE TO RIETS. HE PLACED RELIANCE UPON DECISION OF HONBLE SUPREME COURT IN CASE OF HINDUSTAN COCA-COLA BEVERAGES LTD VS CIT REPORTED IN (2007) 293 ITR 226 , WHEREIN IT WAS HELD THAT ASSESSEE WILL NOT BE TRE ATED AS ASSESSEE IN DEFAULT UNDER SECTION 201 (1) OF THE ACT, IF TDS IS DEDUCTED AND HAS PAID TAXES ON RECEIPTS. 7. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT, PROVIS IONS OF TDS WOULD BE APPLICABLE IN PRESENT CASE, AS PAYMENT HAVE BEEN MADE BY ASSESSEE TO RIETS IN INSTALLMENT, WHICH EXCEEDS PRESCRIBED LIMI TS DURING THE YEAR. SHE FURTHER SUBMITTED THAT LD.CIT (A) GRANTED RELIE F TO ASSESSEE TO THE EXTENT OF RS.1,85,97,104/-, WITHOUT VERIFYING DETAI LS OF RIETS, AS TO ITA NO. 3279DEL/2015 4 WHETHER RIETS HAS DEPOSITED TDS DEDUCTED ON SUCH PA YMENTS WITH GOVERNMENT TREASURY. 8. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SID ES IN LIGHT OF RECORDS PLACED BEFORE US. 9. LD.AR PLACED RELIANCE UPON DECISION OF HONBLE DELHI HIGH COURT IN CIT VS TRANCE BHARAT AVIATION PVT.LTD., REPORTED IN 320 ITR 671I AND SUBMITTED THAT RIETS BEING GOVERNMENT UNDERTAKING, TAXES MAY BE PRESUMED TO HAVE BEEN PAID BY DUE DATE OF FILING OF RETURN OF INCOME, AND THEREFORE LIABILITY OF ASSESSEE TO PAY INTEREST ON AMOUNT WHICH WAS TO BE DEDUCTED AS TDS ENDS WITH DUE DATE OF FILING OF RET URN BY RIETS. AT THE OUTSET, LD. AR SUBMITTED THAT ASSESSEE WAS NOT GIVE N SUFFICIENT TIME TO FURNISH RELEVANT RECORDS/INFORMATION BEFORE THE LD. AO PRIOR TO PASSING OF THE ORDER DATED 28/03/13 AS CASE WAS GOING TO BE TIME-BARRED ON 31/03/13. 10. AS HELD BY HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE (P.) LTD. V. CIT REPORTED IN 163 TAXMAN 355 , THE TAXES CANNOT BE RECOVERED ONCE AGAIN FROM ASSESSEE IN A S ITUATION IN WHICH RECIPIENT OF INCOME HAS PAID DUE TAXES ON INCOME EM BEDDED IN PAYMENTS FROM WHICH TAX WITHHOLDING REQUIREMENTS WERE NOT FU LLY OR PARTLY, COMPLIED WITH BY ASSESSEE. SECTION 201 HAS BEEN SU BSEQUENTLY AMENDED ITA NO. 3279DEL/2015 5 BY INSERTING PROVISO TO SECTION 201 BY FINANCE ACT, 2012 W.E.F. 01.07.2012. 11. WE ARE THEREFORE INCLINED TO SET ASIDE THIS ISS UE TO LD.AO FOR VERIFICATION WHETHER TAXES HAS BEEN PAID BY RIETS O N AMOUNT RECEIVED FROM ASSESSEE DURING THE YEAR UNDER CONSIDERATION, EITHER DIRECTLY OR IN THE FORM OF WITHHOLDING TAX, WHICH STANDS DEPOSITED WITH GOVERNMENT TREASURY AS PER LAW. ACCORDINGLY GROUNDS RAISED BY ASSESSEE STANDS ALLOW ED FOR STATISTICAL PURPOSES. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/02/2019 SD/- SD/- (PRASHANT MAHARISHI) (B EENA A PILLAI) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 01.02.2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO. 3279DEL/2015 6 DATE OF DICTATION 2 8 /01/2019 01/02/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2 8 /01 /19 01/02/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 0 4 / 0 2 / 1 9 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 0 1 / 0 2 / 1 9 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 0 4 / 0 2 / 1 9 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 0 4 / 0 2 / 1 9 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 0 4 / 0 2 / 1 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER