I.T.O Wd - 35(2),kolkata., Kolkata V. M/s India Steel Corporation., Kolkata

ITA 35/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78435 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2014
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2013
• Court: TRIBUNAL
• Department Lawyers: A P ROY LD JCITSR
• Assessee Lawyers: V N PUROHIT FCA LD
• Section: 194C; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH: KOLKATA ( ) .. , ' 1 , BEFORE HONBLE SRI P.K. BANSAL, AM & HONBLE SRI GEORGE MATHAN, JM ITA NO. 35/KOL/2013 A.Y 2009-10 I.T.O WARD 35(3), KOLKATA % % - VERSUS -. M/S. INDIA STEEL CORPORATION PAN:AAAFI 8045B ( ' / APPELLANT ) ( )*' / RESPONDENT ) ' / FOR THE APPELLANT/ DEPARTMENT SHRI . A.P. ROY, LD.JCIT/SR.DR )*' / FOR THE RESPONDENT/ ASSESSEE: SHRI V.N PUROHIT, FCA, LD.AR / 0 /DATE OF HEARING: 30-07-2014 / 0 /DATE OF PRONOUNCEMENT: 30-07-2014 / ORDER ' 1 , SHRI GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), XX, KOLKATA IN APPEAL NO . 383/CIT(A)-XX/WD-35(2)/2011-12/KOL DATED 14.09.2012 FOR THE ASSESSMENT YEAR 2009- 10. 2. SHRI A.P. ROY, LEARNED JCIT/SR.DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI V.N PUROHIT, FCA, LEARNED AR REPRESENTED ON BEHALF O F THE ASSESSEE. 3. IN THE REVENUES APPEAL, THE REVENUE HAS RAIS ED THE FOLLOWING GROUNDS OF APPEAL:- 1) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) ERRED IN DELETING THE ADDITION U/S. 40(A)(IA) ON ACCOUNT OF EXPENDITURE ON PROVISION FOR COMMISSION AND TRANSPORTATION FOR A SUM OF RS. 46,00,000/- ON WHICH THE TDS WAS MADE IN SUBSEQUENT PREVIOUS YEAR. 2) FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, LD. CIT(A) ERRED IN DELETING THE ADDITION U/S. 40(A)(IA) ON ACCOUNT OF EXPENDITURE ON INTEREST FOR A SUM OF RS.95,441/- ON WHICH NO TDS WAS MADE. 4. AT THE TIME OF HEARING BEFORE US, IT WAS THE S UBMITTED BY SHRI A.P. ROY, LEARNED JCIT/SR.DR THAT IN RESPECT OF GROUND NO.1 OF THE REVENUES APPEAL THAT THE AO HAD DISALLOWED THE EXPENDITURE ON PROVISION FOR COMMISSION AND TR ANSPORTATION ON THE GROUND THAT THE ASSESSEE HAD NOT DEDUCTED THE TDS U/S. 194H AND 194C OF THE ACT DURING THE PREVIOUS YEAR 2008-09 ITSELF. IT WAS THE SUBMISSION BY HIM THAT THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) HAD ALLOWED THE ASSESSEES CLAIM BY HOLDING THAT THE TD S HAD BEEN DEDUCTED AND PAID BEFORE THE DUE ITA NO. 35/KOL/ 2013 I T O W 35(2), KOL VS. M/S. INDIA STEEL COPRN 2 DATE OF FILING OF THE RETURN U/S. 139(1) OF THE ACT . IT WAS THE FURTHER SUBMISSION THAT AS PER PROVISIONS OF SECTION 40(A)(IA) OF THE ACT THE ASSE SSEE WAS LIABLE TO DEDUCT THE TDS WITHIN THE PREVIOUS YEAR 2008-09 ITSELF AND THE PROVISO ALLOW ED IT IF PAID WITHIN THE TIME SPECIFIED U/S.139(1) OF THE ACT. IT WAS THE FURTHER SUBMISSI ON BY HIM THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ON THIS ISSUE WAS LIABLE TO BE REVERSED. HE HAS VEHEMENTLY SUPPORTED THE ORDER OF THE AO IN DOING SO. 4.1 IN RESPECT OF GROUND NO.2, IT WAS SUBMITTED BY SHRI A.P ROY, LEARNED JCIT/SR.DR THAT THE ISSUE WAS AGAINST THE ACTION OF THE LEARNED COMMIS SIONER OF INCOME-TAX (APPEALS) IN DELETING THE ADDITION ON ACCOUNT OF EXPENDITURE ON INTEREST F OR A SUM OF RS. 95,441/- ON WHICH NO TDS WAS MADE. IT WAS THE SUBMISSION BY HIM THAT NEITHER AN Y FORM NO. 15G/H WAS PRODUCED BY THE ASSESSEE BEFORE THE AO NOR THE SAME WAS SUBMITTED TO THE CONCERNED CIT. IT WAS SUBMITTED BY HIM THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAD DELETED THE ADDITION BY HOLDING THAT THE AO WAS OF THE VIEW THAT THE APPELLANT HAS RECEIVED FORM NO.15G FOR NON DEDUCTION OF TAX, BUT THE SAME WAS NOT SUBMITTED TO THE APPROP RIATE AUTHORITY. IT WAS THE FURTHER SUBMISSION THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E-TAX (APPEALS) ON THIS ISSUE WAS ERRONEOUS ON THE FACTS AND THE SAME WAS LIABLE TO BE REVERSE D. 5. IN REPLY, IN RESPECT OF GROUND NO.1 OF THE REV ENUES APPEAL SHRI V.N PUROHIT, FCA, THE LEARNED AR FOR THE ASSESSEE HAS SUBMITTED THAT THE TDS HAVE BEEN DEDUCTED AND PAID BEFORE THE DUE DATE OF FILING OF RETURN U/S. 139(1) OF THE AC T. THE LEARNED AR FOR THE ASSESSEE DREW OUR ATTENTION TO PARA 3.1 OF THE ORDER OF THE LD. CIT( A) AND SUBMITTED THAT THE TAX DEDUCTED AT SOURCE [TDS] HAD BEEN DEPOSITED BEFORE THE DUE DATE OF FI LING OF THE RETURN I.E 31-03-2009. IT WAS SUBMITTED BY HIM THAT THE ISSUE WAS SQUARELY COVER ED BY THE DECISION/ORDER OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL [ITAT KOLKATA, B BENCH, K OLKATA] IN THE CASE OF M/S. BAHULA TRANSPORT, BURDWAN VS. ITO, W 1(3), DURGAPUR IN ITA NO. 800/K OL/2012 FOR THE A.Y 2008-09 DATED 06- 08-2013, WHEREIN IT HAS BEEN HELD THAT THE PROVISO OF SECTION 40(A)(IA) OF THE ACT WAS REMEDIAL AND CURATIVE IN NATURE AND TDS PAID ON OR BEFORE THE DU E DATE OF FILING OF RETURN U/S. 139(1) OF THE ACT, DEDUCTION IN RESPECT OF THE AMOUNT ON WHICH TDS IS SO PAID, IS ALLOWABLE. HE HAS VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ON THIS ISSUE. 5.1 IN RESPECT OF GROUND NO.2, IT WAS SUBMITTED BY SHRI V.N.PUROHIT, FCA, LEARNED AR FOR THE ASSESSEE THAT THE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS) HAS CATEGORICALLY GIVEN HIS FINDING THAT THE AO WAS OF THE VIEW THAT THOUGH THE APPELLANT RECEIVED FORM NO.15G FOR NON DEDUCTION OF TAX, BUT THE SAME WAS NOT SUBMITTED TO THE APPROPRIATE AUTHORITY. HENCE, THE APPELLANT WAS ABSOLVED OF ITS LIABILITY TO DEDUCT THE TAX. TH E LEARNED AR FOR THE ASSESSEE HAS PLACED HIS RELIANCE ON THE ORDER/DECISION OF THE CO-ORDINATE B ENCH OF THIS TRIBUNAL [ ITAT KOLKATA B BENCH ITA NO. 35/KOL/ 2013 I T O W 35(2), KOL VS. M/S. INDIA STEEL COPRN 3 ] IN THE CASE OF. M/S. KESHAN LOGISTIC PVT. LTD VS . ITO, W 3(4), KOLKATA IN ITA NO.202/KOL/2011 FOR THE A.Y 2006-07 DATED 05/12/201 1. IT WAS THE SUBMISSION BY HIM THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) ON THIS ISSUE WAS LIABLE TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF PARA 3.4 OF THE ASSESSMENT ORDER SHOWS A CHART WHERE THE NAME OF THE PARTY, NATURE OF EXPENDITURE, AMOUNT OF EXPENDITURE, DATE OF DEDUCTION OF TAX AT SOURCE AND DATE OF DEPOSIT O F TAX AT SOURCE ALL ARE CLEARLY MENTIONED. A PERUSAL OF THE PROVISIONS OF SECTION 40(A)(IA) OF T HE ACT MORE SPECIFICALLY THE FIRST PROVISO THERETO AS RELIED UPON BY THE ASSESSEE, THE FIRST PROVISO O F SECTION 40(A)(IA) READS AS FOLLOWS: PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM,.... .......................... TAX HAS BEEN PAID. 6.1 A PERUSAL OF THE PROVISO CLEARLY SHOWS THAT TH E EXEMPTION IS PROVIDED SUBJECT TO THE CONDITION THAT THE TAX HAS BEEN DEDUCTED IN ANY SUB SEQUENT YEAR OR HAS BEEN DEDUCTED DURING THE PREVIOUS YEAR, BUT PAID BEFORE THE DUE DATE. TH E FIRST PROVISO IS APPLICABLE WHEN THE PAYMENT IS MADE BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139 OF THE ACT. A PERUSAL OF THE PROVISIONS OF SECTION 40(A)(IA) REFERS TO THE TAX DEDUCTIBLE AT SOURCE UNDER CHAPTER XVIIB. THE PROVISIONS OF SECTION 194H/194C WOULD NOW HAVE TO B E READ. THE PROVISIONS OF SECTION 194C SPECIFY THAT THE DEDUCTION OF TDS IS TO BE MADE AT THE TIME OF CREDIT OR PAYMENT, WHICHEVER IS EARLIER. THE FACT THAT THE PROVISIONS OF SECTION 1 94C AND 194H SPECIFIED THAT THE DEDUCTION OF TDS IS TO BE MADE AT THE TIME OF CREDIT OR PAYMENT CLEARLY SHOWS THAT WHAT IS REQUIRED U/S. 40(A)(IA) IS THE DEDUCTION OF TAX BEFORE THE END O F THE FINANCIAL YEAR. THE PROVISO THERETO SECTION 40(A)(IA) PERMITS THE PAYMENT OF SUCH SUM, WHICH IS DEDUCTED AT SOURCE [TDS] TO BE MADE BEFORE THE DUE DATE OF FILING OF THE RETURN U/S. 139(1) FO R CLAIMING THE DEDUCTION. A PERUSAL OF PARA 3.4 OF THE ASSESSMENT ORDER AND CHART THERETO SHOW THAT NONE OF THE TDS HAS BEEN MADE BEFORE 31-03- 2009. ADMITTEDLY, ALL PAYMENTS OF TDS HAVE BEEN M ADE AFTER 31-03-2009, BUT THE TDS HAS BEEN DEPOSITED BEFORE THE DUE DATE SPECIFIED IN SECTIO N 139(1) FOR THE ASSESSMENT YEAR 2009-10 EXCEPT IN THE CASES OF SHRI SHARAD MITTAL AND SMT. SAVITA MITTAL. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE DECISION AS QUOTED BY SHRI V.N. PUROHIT, FCA, THE LEARNED AR FOR THE ASSESSEE IN THE CASE OF M/S. BAHULA TRANSPORT (REFERRED TO SUPRA) DOES NOT APPLY TO THE FACTS OF THE CASE IN SO FAR AS THE TDS HAS BEEN MADE AFTER 31-03-2009. IN THE CIRCUMSTANCE, WE ARE OF THE VIEW THAT THE FINDING OF THE LEARNED COMMISSIONER OF INCOME-TAX ( APPEALS) ON THIS ISSUE IS ERRONEOUS AND CONSEQUENTLY, THE SAME STANDS REVERSED AND THAT OF THE AO RESTORED. IN THE CIRCUMSTANCES, GROUND NO.1 OF THE REVENUES APPEAL STANDS ALLOWED. 6.2 IN RESPECT OF GROUND NO.2 OF THE REVENUES APPE AL, A PERUSAL OF THE ASSESSMENT ORDER MORE SPECIFICALLY PARA 4.1 SHOWS THAT NO TDS HAS BEEN M ADE U/S. 194A. NEITHER ANY FORM NO.15G/H WAS RECEIVED FROM THE SAID PARTIES NOR SUBMITTED THE SAME TO THE CONCERNED CIT. EVEN BEFORE US ITA NO. 35/KOL/ 2013 I T O W 35(2), KOL VS. M/S. INDIA STEEL COPRN 4 THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE ANY COPY OF FORM NO. 15G/H ALLEGEDLY TO HAVE BEEN RECEIVED BY THE ASSESSEE. IT IS ALSO NOTICED THAT FORM NO. 15G/H HAS NOT BEEN PRODUCED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) NOR EVEN BEFORE US. IN THE CIRCUMSTANCES, ON ACCOUNT OF THE FACT THAT THERE I S NO FORM NO.15G/H THAT HAVE BEEN ALLEGEDLY RECEIVED BY THE ASSESSEE AND THE DECISION AS RELIE D ON BY SHRI V.N. PUROHIT, FCA, THE LEARNED AR FOR THE ASSESSEE IN THE CASE OF M/S. KESHAN LOGISTI C PVT. LTD (REFERRED TO SUPRA) WOULD NOT APPLY TO THE FACTS OF THE PRESENT CASE. IN THE CIRCUMSTA NCES, WE ARE OF THE VIEW THAT THE FACT RECORDED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) T HAT THE AO WAS OF THE VIEW THAT THE APPELLANT HAD RECEIVED THE FORM NO.15G FOR NON DEDUCTION OF T AX IS ERRONEOUS AND CONSEQUENTLY, THE FINDING OF THE LEARNED COMMISSIONER OF INCOME-TAX ( APPEALS) ON THIS ISSUE STANDS REVERSED AND THAT OF THE AO RESTORED. THE GROUND NO.2 OF THE REV ENUES APPEAL STANDS ALLOWED. 7. IN THE RESULT, THE REVENUES APPEAL IN ITA N O. 35/KOL/2013 FOR THE ASSESSMENT YEAR 2009-10 STANDS ALLOWED AS STATED ABOVE. 5 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 30/7 /2014 SD/- SD/- / )8 98 / COPY OF THE ORDER FORWARDED TO: 1. . ' / THE APPELLANT : I T O W 35(2), AAYKAR BHAWAN PO ORVA, 7 TH FL., 110 SHANTI PALLI, KOL-107.. 2 )*' / THE RESPONDENT- M/S. INDIA STEEL CORPORATION 5/ 1 CLIVE ROW, 2 ND FL., ROOM NO.38, KOL-1. 3. / THE CIT, 4. ( )/ THE CIT(A) 5 . ) / DR, KOLKATA BENCH 6 . GUARD FILE . *8 )/ TRUE COPY, / BY ORDER, / **PRADIP/SPS ASSTT REGISTRAR ( . . , ) ( P.K BANSAL, ACCOUNTANT MEMBER) ( ' 1 , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( 0 0 0 0 ) )) ) DATE 30/07/2014