The DCIT, Gandidham Circle, GANDHIDHAM V. M/s. Shreeji Propack P. Ltd., GANDHIDHAM

ITA 356/RJT/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7795 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AH MEDABAD] (BEFORE SHRI P. K. KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 356/RJT/2014 (ASSESSMENT YEAR: 2007-08) ASSISTANT COMMISSIONER OF INCOME TAX GANDHIDHAM CIRCLE, GANDHIDHAM- KUTCH V/S M/S. SHREEJI PROPACK PVT. LTD., PLOT NO. 252, WARD- 12/B, GANDHIDHAM-KUTCH. (APPELLANT) (RESPONDENT) TAN: AAICS1201N APPELLANT BY : SHRI RAVI PRAKASH, D.R. RESPONDENT BY : SHRI KALPESH DOSHI, A.R. ( )/ ORDER DATE OF HEARING : 15 -03-201 8 DATE OF PRONOUNCEMENT : 12 -06-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-II, RAJKOT DATED 25.03.2014 PERTAINING TO A.Y. 2007-08 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 356/ RJT/2014 . A.Y. 2007-08 2 1.WHETHER LD. CIT(A) WAS JUSTIFIED IN HOLDING ASSESSEE HAS MADE CLAIM OF ADDITIONAL TDS WITHIN TWO YEARS, DESPITE THE FACT T HAT NO PROOF FOR SAME WAS GIVEN BY ASSESSEE BEFORE AO WHILE FILING THE RECTIF ICATION APPLICATION. 2. WHETHER LD. CIT(A) WAS JUSTIFIED IN HOLDING ASSE SSEE HAS MADE CLAIM OF ADDITIONAL TDS WITHIN TWO YEARS, BASED ON TWO LETTE RS OF ASSESSEE, WHICH HAVE NEVER BEEN RECEIVED BY DEPARTMENT AND DO NOT BEAR A NY STAMP OF DEPARTMENT, EVEN THE SIGNATURE ON THESE TWO LETTERS SEEMS TO BE FABRICATED (COPY OF ASSESSEE'S LETTERS, AND OTHER LETTERS SIGNED BY THA T STAFF ARE ENCLOSED FOR REFERENCE). 3. WHETHER LD CIT(A) WAS JUSTIFIED IN HOLDING ASSES SEE HAS MADE CLAIM OF ADDITIONAL TDS WITHIN TWO YEARS, BASED ON TWO LETTE RS OF ASSESSEE, WHICH HAVE NEVER BEEN RECEIVED BY DEPARTMENT AND DO NOT BEAR A NY STAMP OF DEPARTMENT, EVEN THE SIGNATURE ON THESE TWO LETTERS SEEMS TO BE FABRICATED, AND THERE IS ANOTHER LETTERS OF ASSESSEE DATED 25-05-2009 & 25-1 1-2010 (BOTH AFTER SO CALLED CLAIM OF ASSESSEE OF SUBMISSION OF ADDITIONAL CLAIM OF TDS), WHEREIN ALSO ASSESSEE HAS NOT CLAIMED THESE ADDITIONAL TDS (COPY OF ALL T HESE LETTERS ENCLOSED), BUT HAS SUBMITTED TDS CERTIFICATES & CLAIMED ONLY THE ORIGI NAL TDS AMOUNT. 4. WHETHER LD. CIT(A) WAS JUSTIFIED IN DIRECTING TH E AO TO GIVE TDS CREDIT ON BASIS OF INSTRUCTION NO. 5/13, WHILE THE SAME IS APPLICAB LE ONLY WHEN THERE IS MISMATCH, NOT WHEN ASSESSEE HAS NOT EVEN CLAIMED THE TDS CRED IT. 5. WHETHER LD CIT(A) WAS JUSTIFIED IN ACCEPTING THE CLAIM OF ASSESSEE THAT HE HAS NOT GOT THESE TDS CERTIFICATES ON TIME, THUS WAS NO T ABLE TO CLAIM THE SAME IN ROI, WHILE ON TDS CERTIFICATE ITSELF THERE IS SIGNA TURE OF ASSESSEE'S ACCOUNTANT PROVING THAT SAME HAS BEEN RECEIVED BY HIM ON OR BE FORE 13-04-2007 (COPY ENCLOSED.) IT IS, THEREFORE PRAYED THAT THE ORDER OF THE LD. C IT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENTS. ITA NO. 356/ RJT/2014 . A.Y. 2007-08 3 2. THE FACTS OF THE CASE ARE THAT THE APPELLANT HAD FI LED AN APPLICATION U/S. 154 DATED 14/10/2011 FOR SHORT RECEIPT OF FUND FOR A.Y. 20078-08 WHEREIN IT WAS MENTIONED THAT QUANTUM OF TDS RECEIVABLE STANDING I N ITS BOOKS AS PER AUDIT REPORT IS RS. 1,06,72,661/- AS AGAINST WHICH CLAIM OF TDFS WAS MADE IN ITS RETURN OF INCOME ON THE BASIS OF TDS C ERTIFICATES AVAILABLE AMOUNTING TO RS.57.65,398/- AND THE DIFFERENCE OF RS.49,07,263/- COULD NOT BE CLAIMED AT THE TIME OF FILING OF RETURN OF INCOM E AS TDS CERTIFICATES WERE PENDING TO BE RECEIVED FROM THE PARTY FOR THE SAID ASSESSMENT YEAR AND COMPLETE ENTRIES DETAILS SUCH AS ADDRESS OF THE DED UCTOR, DATE OF TDS DEDUETED. SALE OF DEPOSITED, NATURE OF PAYMENT. TAN ETC. WERE NOT AVAILABLE AND DUE TO THIS, COMPUTERIZED SYSTEM OF E-FILING DID NOT ACCEP T THOSE ENTRIES AND AS SUCH ONLY RS.57.65.398/- COULD BE CLAIMED. THERE WAS ALS O A REFUND CLAIM OF RS.L 5,77,210/- (INCLUDING INTEREST OF RS.1.62.679/-) IN THE RETURN OF INCOME FOR A.Y. 2007-08. THE APPELLANT HAS MENTIONED IN ITS LE TTER DT. 14/10/2011 THAT ORIGINAL TDS CERTIFICATES OF RS.23.93.924/-. TRUE C OPY OF TDS CERTIFICATE OF RS.24.29.773/- & COPY OF TDS CERTIFICATE OF RS.83.5 66/- WERE SHOWN TO HAVE BEEN ENCLOSED WITH THIS APPLICATION ALONG WITH INDE MNITY BOND. THE ACIT. (GANDHIDHAMCIRCLE.GANDHIDHAM.VIDELETTERNO.ACFI7CIRC LE/GLM/SPPL/2011- 12, DT. 29/12/2011, REJECTED RECTIFICATION APPLICAT ION U/S.!55(14). THE A.O. MENTIONED THAT TDS CREDIT OF RS.57.65.398/- HAVE AL READY BEEN GRANTED BY HIS OFFICE ACCORDING TO APPELLANT'S ORIGINAL CLAIM IN E -FILED RETURN, VIDE RECEIPT NO.7600370311007 DTD. 31/10/2007. THE A.O. VIEWED T HAT THE APPELLANT HAS CLAIMED EXCESS CREDIT OTHER THAN CLAIMED IN THE IT RETURN FILED. THE A.O. ALSO NOTICED THAT THE SAID CREDIT WAS NEITHER REFLECTED IN THE FORM NO.26AS NOR THE APPELLANT HAD SUBMITTED ORIGINAL TDS CERTIFICATES U /S. 155(14) WITHIN TWO YEARS FROM THE END OF THE ASSESSMENT YEARS IN WHICH SUCH INCOME IS ASSESSABLE. THEREFORE, IN VIEW OF THE PROVISION OF S. 155(14) T HE A.O. HELD THAT TDS ITA NO. 356/ RJT/2014 . A.Y. 2007-08 4 CERTIFICATE ORIGINAL ARE SUBMITTED ONLY ON 2/12/201 1 AND HENCE THE MATTER IS BARRED BY LIMITATION AND REJECTED THE RECTIFICATION APPLICATION OF THE ASSESSEE. 3. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST ST ATUTORY APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE CLAIM OF THE ASSESSEE AND DI RECTED A.O. TO VERIFY AND GIVEN CREDIT OF TDS TO THE ASSESSEE AS PER ITS CLAI M. 4. AGAINST THE SAID ORDER, NOW DEPARTMENT IS BEFORE US . 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IN THE IMPUGNED ORDER AND HEARD BOTH THE PARTIES. ASSESSEE FILED RETURN FOR A SSESSMENT YEAR 2007-08 AND ADDITIONAL CLAIM OF TDS WAS MADE BY LETTER DATED 07 .04.2009 AS WELL AS TRUE COPIES OF TDS CERTIFICATE WERE SUBMITTED TO THE LOW ER AUTHORITIES. WHILE DECIDING THE APPLICATION U/S. 154/ 155(14), THE A.O . HAS HELD THAT ORIGINAL TDS CERTIFICATE WERE NOT SUBMITTED WITHIN TWO YEAR FROM THE END OF ASSESSMENT YEAR. HENCE, REJECTED THE CLAIM OF THE ASSESSEE. WE JUST FAIL TO UNDERSTAND WHY ASSESSEE WILL NOT CLAIM TDS OF RS. 49,07,263/-. AND AT THE TIME OF FILING OF E- RETURN, ASSESSEE ALSO CLAIMED THAT CERTAIN AMOUNT O F TDS MIGHT BE RECEIVED IN FUTURE. AS NO ATTACHMENTS WERE POSSIBLE ALONG WITH E-RETURN AND ASSESSEE HAD NOT MENTIONED THE CLAIM OF THE BALANCE OF TDS IN IT S RETURN OF INCOME. AND SPIRIT OF THE CBDT CIRCULAR NO. 5 OF 2013 IS ALSO C ONSONANCE TO THE PRAYER OF THE ASSESSEE THAT WHERE ASESSEES ENTITLED FOR CRED IT OF TDS SAME SHOULD BE GIVEN TO THE ASSESSEE. THUS, IN OUR CONSIDERED OPIN ION, LD. CIT(A) PASSED DETAILED AND REASONED ORDER AND IT DOES NOT REQUIRE ANY INTERFERENCE AT OUR END. ITA NO. 356/ RJT/2014 . A.Y. 2007-08 5 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 12 - 06- 2018 SD/- SD/- (P.K. KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICI AL MEMBER AHMEDABAD: DATED 12/06/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD