Principal , Hardoi V. Income Tax Officer(TDS), Bareilly

ITA 364/LKW/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5178 (ITAT-LUCKNOW)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-12-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 22-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Keywords: Opportunity of being heard
• Section: 201(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.364 & 365/LKW/2013 A.Y.:2006 - 07 & 2007 - 08 PRINCIPAL, CANE SOCIETIES NEHRU DEGREE COLLEGE, LUCKNOW CHUNGI, LUCKNOW. VS. INCOME TAX OFFICER(TDS), BAREILLY. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SANJAY SAXENA, FCA RESPONDENT BY SHRI Y. P. SRIVASTAVA, D.R. DATE OF HEARING 18/12/2013 DATE OF PRONOUNCEMENT 2 7 /12/2013 O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST THE COMBINED ORDER OF LEARNED CIT ( A), BAREILLY DATED 27/12/2012 FOR ASSESSMENT YEAR 2006 - 2007 & 2007 - 2008. 2. THE GROUNDS RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2006 - 07 ARE AS UNDER: 1. THAT THE DELAY IN FILING THE APPEAL MAY PLEASE BE CONDONE D . 2 2. THAT THE LEARNED CIT(A), BAREILLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE ORDER IMPOSING THE TDS DEMAND AND INTEREST OF RS.21,020/ - U/S 201(1) & 201(1A) OF THE I.T. ACT AS PER ORDER PASSED BY THE LEARNED INCOME TAX OFFICER(TDS), BAREILLY. 3. THE APPELLANT RESERVES A RIGHT TO ADD/ALTER/AMEND ANY GROUND OF APPEAL AT THE TIME OF ITS HEARING. 3. IN ASSESSMENT YEAR 2007 - 08 ALSO, THE GROUNDS ARE IDENTICAL EXCEPT DIFFERENT IN AMOUNT WHICH IS RS.5,220/ - IN THAT YEAR. 4. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ALTHOUGH THERE WAS SOME SHORT DEDUCTION OF TDS IN THE CASE OF SOME OF THE EMPLOYEES BUT ALL OF THEM HAVE DULY PAID THE TAX AND THE EVIDENCE THEREOF IS AVAILABLE IN THE PAPER BOOK ALONG WITH CONFIRMATION OF EMPLOYEES REGARDING SUBMISSION OF IT RETURN AND COPY OF CHALLAN. HE SUBMITTED THAT UNDER THESE FACTS, THE DEMAND RAISED BY THE REVENUE AND CONFIRMED BY LEARNED CIT(A) IS NOT JUSTIFIED. HE PLACED RELIANCE ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD. VS COMMISSIONER OF INCOME - TAX [2007] 293 ITR 226 (SC) . 5. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. HE ALSO SUBMITTED THAT EVEN AS PER THIS JUDGMENT OF HON'BLE APEX COU RT, AT LEAST THE DEMAND RAISED BY THE ASSESSING OFFICER U/S 201(1A) OF THE ACT IN RESPECT OF INTEREST SHOULD BE CONFIRMED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE JUDGMENT OF HON'BLE APEX COURT CITED BY LEARNED 3 A.R. OF THE ASSESSEE. WE FIND THAT THIS ISSUE WAS DECIDED BY HON'BLE APEX COURT IN THIS CASE AS PER PARA 10 OF THE JUDGMENT, WHICH IS REPRODUCED BELOW: BE THAT AS IT MAY, CIRCULAR NO. 275/201/95 - IT(B) DATED JANUARY 29, 1997, ISSUED BY THE CEN TRAL BOARD OF DIRECT TAXES, IN OUR CONSIDERED OPINION, SHOULD PUT AN END TO THE CONTROVERSY. THE CIRCULAR DECLARES NO DEMAND VISUALIZED UNDER SECTION 201(1) OF THE INCOME - TAX ACT SHOULD BE ENFORCED AFTER THE TAX DEDUCTOR HAS SATISFIED THE OFFICER - IN - C HARGE OF TDS, THAT TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE - ASSESSEE. HOWEVER, THIS WILL NOT ALTER THE LIABILITY TO CHARGE INTEREST UNDER SECTION 201(1A) OF THE ACT TILL THE DATE OF PAYMENT OF TAXES BY THE DEDUCTEE - ASSESSEE OR THE LIABILITY FOR PENALTY UNDER SECTION 271C OF THE INCOME - TAX ACT. 6.1 FROM THE ABOVE PARA OF THIS JUDGMENT OF HON'BLE APEX COURT, IT IS SEEN THAT IT WAS HELD BY HON'BLE APEX COURT THAT IF THE DEDUCTEE HAS PAID THE TAX AND THE TAX DEDUCTOR HAS BROUGHT EVIDENCE ON RECORD IN SUPPORT OF THIS THEN NO DEMAND CAN BE RAISED U/S 201(1) OF THE ACT IN RESPECT OF SUCH SHORT DEDUCTION. HOWEVER, REGARDING INTEREST DEMAND, IT WAS HELD THAT SUCH INTEREST HAS TO BE CHARGED TILL THE DATE OF PAYMENT OF TAX BY THE DEDUCTEE ASSESSEE. RESPECTF ULLY, FOLLOWING THIS JUDGMENT OF HON'BLE APEX COURT, WE HOLD THAT IN THE PRESENT CASE, THE DEMAND RAISED BY THE ASSESSING OFFICER IN RESPECT OF SHORT DEDUCTION OF TDS WAS NOT JUSTIFIED BECAUSE WE HAVE SEEN THAT SUFFICIENT EVIDENCE IS AVAILABLE ON RECORD RE GARDING PAYMENT OF TAX BY THESE DEDUCTEES. HENCE, WE DELETE THE DEMAND RAISED BY THE ASSESSING OFFICER U/S 201(1) IN BOTH THE YEARS. HOWEVER, REGARDING DEMAND RAISED BY THE ASSESSING OFFICER U/S 201(1A) OF THE ACT IN RESPECT OF INTEREST, WE HOLD THAT AS PER THE JUDGMENT OF HON'BLE APEX COURT, SUCH INTEREST IS PAYABLE BY THE ASSESSEE FROM THE DATE ON WHICH TAX WAS DEDUCTIBLE BY THE ASSESSEE TILL THE DATE ON WHICH THE TAX IS ACTUALLY PAID BY THE DEDUCTEE . HENCE, FOR 4 RECALCULATION OF THE DEMAND IN RESPECT O F INTEREST U/S 201(1A) OF THE ACT, WE RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION. THE ASSESSING OFFICER IS DIRECTED TO RECALCULATE THE DEMAND OF INTEREST U/S 201(1A) OF THE ACT AS PER THE RATIO LAID DOWN BY THE HON'BLE APEX COURT IN THESE CASES AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STAND ALLOWED IN THE TERMS INDICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 7 T H DECEMBER, 2013 . *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR