M/S AJMER CENTAL CO OPERATIVE BANK LTD., Ajmer V. ITO, Ajmer

ITA 355/JPR/2012

• Counselvise Citation: 35523114 RSA 2012
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Opportunity of being heard
• Section: 201(1)

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 355/JP/2012 ASSTT. YEAR- 2007-08 PAN NO. AAAAA 0330 N M/S AJMER CENTRAL CO-OPERATIVE, THE I.T.O., WARD 1( 1), BANK LTD., JAIPUR ROAD, VRS. AJMER CUM ITO (TDS). AJMER. (APPELLANT) (RESPONDENT) ASSESSEE BY :- NONE. DEPARTMENT BY :- SHRI D.C. SHARMA. DATE OF HEARING : 27/08/2014 DATE OF PRONOUNCEMENT : 28/08/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 03/01/2012 OF THE LEARNED CIT(A), AJMER FOR THE A.Y. 2007-08. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- (1) THAT CONSIDERING PAYMENT OF INTEREST OF RS. 8,2 6,690/- AS PAYMENT WITHOUT TDS U/S 194A AND DEMANDING A TDS AMOUN T OF RS. 84,323/- ALONGWITH INTEREST OF RS. 5,040/- IS BA D IN LAW AS, AS PER PROVISIONS OF SECTION 194A(3)(V) EXEMPTS THE OR GANIZATION FROM DEDUCTION OF TDS U/S 194A OF THE I.T. ACT TO TH E MEMBERS WHEREAS ALMOST ALL THE PAYMENT IS MADE TO THE MEMBER S AND IN SOME CASE WHERE PAYMENT IS MADE TO NON MEMBERS WITHOU T DEDUCTION OF TAX AT SOURCE AS THEY HAD PROVIDED DEC LARATION U/S 197A OF THE I.T. ACT FOR NON-DEDUCTION. ITA 355/JP/2012 M/S AJMER CENTRAL COOPERATIVE BANK VS. ITO 2 (2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW THE A.O. HAS ERRED IN TREATING PAYMENT OF INTEREST OF RS. 8,26,690/- AS PAYMENT WITHOUT TDS AND DEMANDING A TDS AMOUNT OF RS. 84,323/- ALONGWITH INTEREST OF RS. 5,0 40/- TOTAL 89,363/- AND THE SAME BE DELETED. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, VARY AND OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL WITH T HE PRIOR PERMISSION OF THE CHAIR. 2. IN THIS CASE, THE ITO TDS, AJMER HAD PASSED ORDE R U/S 201(1) OF THE INCOME TAX ACT (HEREINAFTER REFERRED AS THE ACT) ON 10/9/2007. IT HAS BEEN OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURCE FROM INTEREST AT RS. 5,000/- PAID/ACCRUED ON FDR AS PER LIST ENCLOSED WITH THIS ORDER FOR THE F.Y. 2006-07. THE TOTAL INTER EST PAID MORE THAN RS. 5,000/- WAS AT RS. 8,26,690/-. NO TDS HAS BEEN MADE B Y THE APPELLANT, THEREFORE, HE CALCULATED THE TDS AMOUNT @ 10.2% AT RS . 84,323/-. ACCORDINGLY, HE CREATED A DEMAND OF RS. 84,323/-. B EING AGGRIEVED BY THE ORDER OF THE LEARNED ASSESSING OFFICER, THE ASSESSE E CARRIED THE MATTER BEFORE THE LEARNED CIT(A) BUT THE LEARNED CIT(A) PROVIDED 13 DATES TO THE APPELLANT, HAS NOT RESPONDED TO HIM FOR DISPOSAL OF THE APPEAL ON THE GROUND THAT NO MATERIAL HAS BEEN BROUGHT ON RECORD BY APPELLANT TO PROVE THAT HE WAS NOT LIABLE TO DEDUCT THE TAX AT SOURCE IN RESPECT OF PA YMENT OF INTEREST OF RS. 6,26,690/-. THE ASSESSEE FILED APPEAL BEFORE US AND NUMBER OF OPPORTUNITIES HAS BEEN PROVIDED TO HIM BUT NO ONE ON BEHALF OF TH E ASSESSEE HAS APPEARED ITA 355/JP/2012 M/S AJMER CENTRAL COOPERATIVE BANK VS. ITO 3 BEFORE THE BENCH. THE APPELLANT FILED WRITTEN REPLY ON 17/12/2012, WHICH HAS BEEN CONSIDERED FOR DISPOSAL OF THIS APPEAL. IT HAS BEEN SUBMITTED BY THE APPELLANT THAT A TDS CERTIFICATE WAS CARRIED OUT AT THE OFFICE OF JAIPUR ROAD BRANCH FOR THE F.Y. 2006-07. THE APPELLANT HAD SUBM ITTED DURING THE COURSE OF SURVEY OPERATION THAT DECLARATIONS HAVE BEEN RECEIV ED IN FORM NO. 15G AND 15H IN CASE OF NON-MEMBERS AND IN CASE OF MEMBERS, THERE IS NO LIABILITY FOR DEDUCTION OF TDS. THE PROVISIONS OF SECTION 194A AR E DULY FOLLOWED BY THE BANK. HOWEVER, THE LEARNED ITO TDS, AJMER OVERLOOKED THE FACTS AND ISSUED ORDER U/S 201(1) ON 10/9/2007 FOR DEPOSITION OF THE LISTED AMOUNT IN WHOLE WITHOUT PROVIDING EXEMPTION OF NON-DEDUCTION IN CASE OF SECTIONS 194A(3)(V) AND 197 OF THE ACT. THE ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT(A), AJMER, WHICH HAS BEEN DECIDED EX PARTE. THE APPELLANT ALSO FILED DETAILS OF 15G AND 15H FORM TAKEN DURING THAT FINANCIAL YEAR O N INTEREST PAID OR CREATED. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE LEARNED ASSESSING OFFICER HAD NOT TAKEN CONSIDERATION OF THE SUBMISSION MADE BY THE APPELLANT DURING THE COURSE OF SURVEY PROCEEDINGS. HE HAD NOT CONSIDERED THE 15G AND 15H FORM TAKEN BY THE APPELLANT FOR NON DEDUCTION OF TAX. THE APPELLANT ALSO HAD NOT APPEAR ED BEFORE THE LEARNED CIT(A) EVEN AFTER 13 OPPORTUNITIES HAD BEEN PROVIDED BY HIM. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE CIT(A) ORDE R FOR DE NOVO AND DIRECTED TO CONSIDER THE EVIDENCE FURNISHED BEFORE US AND PR OVIDED REASONABLE ITA 355/JP/2012 M/S AJMER CENTRAL COOPERATIVE BANK VS. ITO 4 OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THE APP ELLANT IS ALSO DIRECTED TO APPEAR BEFORE THE LEARNED CIT(A), AJMER WITHIN 15 DA YS OF RECEIPT OF THIS ORDER WITHOUT GETTING FORMAL NOTICE FROM LEARNED CIT(A), A JMER. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 28/08/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 28 TH AUGUST, 2014 * RANJAN COPY FORWARDED TO :- 1. M/S AJMER CENTRAL COOPERATIVE BANK LTD. AJMER. 2. THE ITO, WARD 1(1), AJMER CUM ITO (TDS). 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 355JP/2012) BY ORDER, AR ITAT JAIPUR.