ACIT, Delhi V. M/s DHTC Logistics Ltd, New Delhi

ITA 3642/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2372 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 31-12-2009
• Assessment Year: 2007-2008
• Appeal Filed On: 26-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K KISHORI
• Assessee Lawyers: R K SEHGAL
• Keywords: TDS
• Section: 133A; 201(1)

Judgement Text

I.T.A. NO.3642/D/2009 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B : NEW DELHI BEFORE SHRI I.P. BANSAL AND SHRI R.C. SHARMA ITA NO.3642/D/09 ASSESSMENT YEAR : 2007-08 ASSTT. C.I.T., VS. M/S DHTC LOGISTICS LIMITED, CIRCLE 49(1), 14, INDRAJ HOUSE COMM. CENTER, NEW DELHI NEW FRIENDS COLONY, NEW DELHI TAN NO.DELD06553B ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI B.K. KISHORI, DR RESPONDENT BY : SHRI R.K. SEHGAL, CA O R D E R PER R.C. SHARMA, AM: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A) DATED 25.05.2009 FOR THE ASSESSMENT YEAR 2007-08, IN THE MATTER OF ORDER PASSED UNDER SECTION 201(1)/201(1A) OF THE I.T. ACT, WHERE IN THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE REVENUE:- I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT TH ERE WAS NO BASIS FOR THE ASSESSING OFFICER TO DRAW ADVE RSE INFERENCE FOR F.Y. 2007-08 MERELY ON THE GROUND THA T FORM NO.15-I WERE NOT SUBMITTED BY THE ASSESSEE TO THE CIT ALONGWITH FORM NO.15-J IN TIME, WHEN THERE WAS NO DEFAULT FOUND IN EARLIER TWO YEARS. THE FINDING OF LEARNED CIT(A) IS INCORRECT IN LAW SINCE DEFAULT FOR EVERY YEAR IS TO BE SEEN INDEPENDENTLY. II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LEARNED CIT(A) HAS ERRED IN IGNORING SECOND PROVISO BELOW SECTION 194C(3)(I) OF THE INCOME TAX ACT, I.T.A. NO.3642/D/09 2 1961 READ WITH RULE 29D OF I.T. RULES 1964 ACCORDIN G TO WHICH THE FORM NO.15J ALONG WITH FORM 15-I ARE TO B E FILED BEFORE 30 TH JUNE EVERY YEAR. III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED IN ACCEPTING THE PLEA OF THE ASSES SEE THAT ALL FORMS NO.15-I WERE PRODUCED DURING THE COURSE O F SURVEY OPERATION WHICH IS FACTUALLY INCORRECT AS TH E ASSESSEE COULD NOT PRODUCE THE FORMS AT THE TIME OF SURVEY U/S 133A OF THE INCOME TAX ACT, 1961. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS ENGAGED I N THE BUSINESS OF PLYING, HIRING OR LEASING OF GOODS CARRIAGES. A SURVEY U/S 133A WAS CARRIED OUT IN THE BUSINESS PREMISES OF THE COMPANY ON 4.8.2008 AN D IT WAS FOUND THAT THE COMPANY COLLECTED FORM NO.15-I FROM VARIOUS SUB-CON TRACTORS DURING FY 2007-08 AND THESE WERE DEPOSITED ALONGWITH FORM NO. 15J ON 21.8.2008 WHEREAS AS PER RULE 29D OF THE IT ACT, THIRD PROVIS O TO SECTION 194C(3)(I), THESE SHOULD HAVE BEEN DEPOSITED WITH CIT ON OR BEF ORE 30 TH JUNE, 2008. THE AO PASSED AN ORDER U/S 201(1)/201(1A) OF THE IT ACT AND THE TAX LIABILITY WAS WORKED OUT AT RS.35,02,992/-. 3. BY THE IMPUGNED ORDER, CIT(A) HELD THAT AO HAS N O BASIS FOR PASSING ORDER U/S 201(1) AND/OR 201(1A) OF THE ACT, BY OBSE RVING THAT NEITHER ANY INTEREST NOR ANY PENALTY IS LEVIABLE FOR LATE DEPOS IT OF FORM 15-I. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND GON E THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE RECORD, WE FOUN D THAT ASSESSEE COMPANY HAS COLLECTED FORM 15-I FROM VARIOUS SUB-CONTRACTOR S AND THE SAME WERE I.T.A. NO.3642/D/09 3 DEPOSITED ALONGWITH FORM 15-J WITH THE IT DEPARTMEN T ON 21.8.2008. AS PER RULE 29D READ WITH THIRD PROVISO TO SECTION 194C(3) (I), THIS FORM WAS TO BE DEPOSITED ON OR BEFORE 30 TH JUNE, 2008. HOWEVER, THERE IS NO PROVISION IN THE ACT FOR LEVY OF ANY PENALTY OR INTEREST ON LATE SUBMISSION OF FORM 15-I. UNDER THE PROVISIONS OF SECTION 194C, THERE SHALL B E NO DEDUCTION OF TAX AT SOURCE IF THE PAYEE IS AN INDIVIDUAL, BEING A SUB-C ONTRACTOR, AND INVOLVED IN THE BUSINESS OF PLYING, HIRING OR LEASING OF GOODS CARRIAGES AND DOES NOT OWN MORE THAN TWO GOODS CARRIAGES DURING THE PREVIOUS Y EAR AND THAT PAYEE HAS FURNISHED A DECLARATION IN THE PRESCRIBED FORM TO T HE PAYER WITHIN SUCH TIME AS MAY BE PRESCRIBED. ACCORDINGLY, WE SEE THAT THE RE IS NO DEFAULT IN DEDUCTION OF TDS. SINCE THERE IS NO PROVISION IN T HE ACT TO LEVY PENALTY OR CHARGE INTEREST FOR NOT FILING FORM 15-I IN TIME, W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR SETTING ASIDE THE ORDER FRAMED BY THE AO U/S 201(1) AND/OR 201(1A) OF THE IT ACT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. THIS ORDER PRONOUNCED IN THE COURT ON 31-12-2009. SD/- SD/- ( I.P. BANSAL ) ( R.C. SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31.12.2009. NS : I.T.A. NO.3642/D/09 4 COPY FORWARDED TO : - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY DY. REGISTRAR,