M/s Shiva Sahakari Bank Niyamitha , Davangere V. Income Tax Officer TDS Ward , Davangere

ITA 365/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4102 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Keywords: Opportunity of being heard; Additional evidence
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER APPEAL NO. APPELLANT RESPONDENT ASSESSMENT YEAR ITA NO. 363/BANG/2018 M/S. SHIVA SAHAKARI BANK NIYAMITHA, HEAD OFFICE BRANCH, OLD AIRPORT ROAD, DAVANGERE. TAN: BLRS15214D THE INCOME TAX OFFICER, TDS WARD, DAVANGERE. 2012-13 ITA NO. 364/BANG/2018 M/S. SHIVA SAHAKARI BANK NIYAMITHA, APMC BRANCH, APMC YARD, DAVANGERE. TAN: BLRS19627G ITA NO. 365/BANG/2018 M/S. SHIVA SAHAKARI BANK NIYAMITHA, A.M. BRANCH, DENTAL COLLEGE ROAD, DAVANGERE. TAN: BLRS19625E ITA NO. 366/BANG/2018 M/S. SHIVA SAHAKARI BANK NIYAMITHA, S.J. BRANCH, JAYADEVA CIRCLE, HADDADI ROAD, DAVANGERE. TAN: BLRS19626F APPELLANT BY : SHRI SANDEEP .C, CA RESPONDENT BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) DATE OF HEARING : 24 . 0 7 .2018 DATE OF PRONOUNCEMENT : 08 . 0 8 .2018 O R D E R PER BENCH ALL THESE FOUR APPEALS ARE FILED BY THE SAME ASSESS EE FOR ASSESSMENT YEAR 2012-13 IN RESPECT OF HEAD OFFICE BRANCH, APMC BRAN CH, A.M. BRANCH AND ITA NOS. 363 TO 366/BANG/2018 PAGE 2 OF 7 S.J. BRANCH. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENI ENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 36 3/BANG/2018 ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) IN SO FAR IT IS PREJUDICIAL TO THE INTERE STS OF THE APPELLANT IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE APPELLANT DENIES ITSELF LIABLE TO BE AS SESSED ON A TOTAL DEMAND SUSTAINED BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) OF RS.9,53,340/- (SHORT DEDUCTION - RS.7, 00,984/- AND INTEREST - RS.2,52,354/-) UNDER THE FACTS AND CIRCU MSTANCES OF THE CASE 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL) ERRED IN LAW AND ON FACTS IN HOLDINGTHAT THE APPELLANT IS LI ABLE TO DEDUCT TAX AT SOURCE U/S 201(1) AND INTEREST U/S. 201(1A) OF THE ACT FOR NON- DEDUCTION OF TDS ON INTEREST PAID TO NON-MEMBERS EV EN THOUGH THE APPELLANT HAS COLLECTED FORM 15G / FORM15H FROM THE DEPOSITORS AND FILED WITH COMMISSIONER OF INCOME-TAX, DAVANGERE. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE FORM 15G AND 15H COLLECTED FROM NON-MEMBERS AND ALSO THE FINDING OF COLLECTION OF FORM 15G AND 15H IS MERE AFTERTHOUGHT IS PERVERSE IN LAW AND CON TRARY TO THE MATERIALS AVAILABLE ON RECORD. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) OUGHT TO REMANDED THE CASE BACK TO THE ASSESSING OFFICER TO SEGREGATE THE DEMAND BETWEEN MEMBERS AND NON-MEMBERS IN ORDER TO ARRIVE AT THE CORRECT DEMAND. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN SUSTAINING DEMAND IN ORDER ISSU ED U/S 201(1) AND 201(1A) OF THE ACT EVEN THOUGH S.201(1) DOES NOT EM POWER THE ASSESSING OFFICER TO RAISE THE DEMAND. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLANT TRIBUNAL, BANGALORE, TO ADD, DELETE, AMEND OR OTHERWISE MODIF Y ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 36 4/BANG/2018 ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) IN SO FAR IT IS PREJUDICIAL TO THE INTERE STS OF THE APPELLANT IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS INTI CIRCUMSTANCES OF ITA NOS. 363 TO 366/BANG/2018 PAGE 3 OF 7 THE CASE. 2. THAT THE APPELLANT DENIES ITSELF LIABLE TO BE AS SESSED ON A TOTAL DEMAND SUSTAINED BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) OF RS.1,87,736/- (SHORT DEDUCTION - RS.1, 44,412/- AND INTEREST - RS.43,324/-) UNDER THE FACTS AND CIRCUMS TANCES OF THE CASE 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT IS L IABLE TO DEDUCT TAX AT SOURCE U/S 201(1) AND INTEREST U/S. 201(1A) OF THE ACT FOR NON- DEDUCTION OF TDS ON INTEREST PAID TO NON-MEMBERS EV EN THOUGH THE APPELLANT HAS COLLECTED FORM 15G / FORM 15H FROM TH E DEPOSITORS AND FILED WITH COMMISSIONER OF INCOME-TAX, DAVANGER E. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE FORM 15G AND 15H COLLECTED FROM NON-MEMBERS AND ALSO THE FINDING OF COLLECTION OF FORM 15G AND 15H IS MERE AFTERTHOUGHT IS PERVERSE IN LAW AND CON TRARY TO THE MATERIALS AVAILABLE ON RECORD. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) OUGHT TO REMANDED THE CASE BACK TO THE ASSESSING OFFICER TO SEGREGATE THE DEMAND BETWEEN MEMBERS AND NON-MEMBERS IN ORDER TO ARRIVE AT THE CORRECT DEMAND. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN SUSTAINING DEMAND IN ORDER ISSU ED U/S 201(1) AND 201(1A) OF THE ACT EVEN THOUGH S.201(1) DOES NOT EM POWER THE ASSESSING OFFICER TO RAISE THE DEMAND. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLANT TRIBUNAL, BANGALORE, TO ADD, DELETE, AMEND OR OTHERWISE MODIF Y ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 4. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 36 5/BANG/2018 ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) IN SO FAR IT IS PREJUDICIAL TO THE INTERE STS OF THE APPELLANT IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE APPELLANT DENIES ITSELF LIABLE TO BE AS SESSED ON A TOTAL DEMAND SUSTAINED BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) OF RS.3,35,340/- (SHORT DEDUCTION RS.2,46 ,573/- AND INTEREST- RS.88,766/-) UNDER THE FACTS AND CIRCUMST ANCES OF THE CASE 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT IS L IABLE TO DEDUCT TAX AT ITA NOS. 363 TO 366/BANG/2018 PAGE 4 OF 7 SOURCE U/S 201(1) AND INTEREST U/S. 201(1A) OF THE ACT FOR NON- DEDUCTION OF TDS ON INTEREST PAID TO NON-MEMBERS EV EN THOUGH THE APPELLANT HAS COLLECTED FORM 15G / FORM15H FROM THE DEPOSITORS AND FILED WITH COMMISSIONER OF INCOME-TAX, DAVANGERE. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE FORM 15G AND 15H COLLECTED FROM NON-MEMBERS AND ALSO THE FINDING OF COLLECTION OF FORM 15G AND 15H IS MERE AFTERTHOUGHT IS PERVERSE IN LAW AND CON TRARY TO THE MATERIALS AVAILABLE ON RECORD. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) OUGHT TO REMANDED THE CASE BACK TO THE ASSESSING OFFICER TO SEGREGATE THE DEMAND BETWEEN MEMBERS AND NON-MEMBERS IN ORDER TO ARRIVE AT THE CORRECT DEMAND. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN SUSTAINING DEMAND IN ORDER ISSU ED U/S 201(1) AND 201(1A) OF THE ACT EVEN THOUGH S.201(1) DOES NOT EM POWER THE ASSESSING OFFICER TO RAISE THE DEMAND. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLANT TRIBUNAL, BANGALORE, TO ADD, DELETE, AMEND OR OTHERWISE MODIF Y ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 5. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 36 6/BANG/2018 ARE AS UNDER. 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) IN SO FAR IT IS PREJUDICIAL TO THE INTERE STS OF THE APPELLANT IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE APPELLANT DENIES ITSELF LIABLE TO BE AS SESSED ON A TOTAL DEMAND SUSTAINED BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) OF RS.1,76,090/- (SHORT DEDUCTION RS.1, 29,476/- AND INTEREST RS.46,611/-) UNDER THE FACTS AND CIRCUMS TANCES OF THE CASE 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EAL) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPELLANT IS L IABLE TO DEDUCT TAX AT SOURCE U/S 201(1) AND INTEREST U/S. 201(1A) OF THE ACT FOR NON- DEDUCTION OF TDS ON INTEREST PAID TO NON-MEMBERS EV EN THOUGH THE APPELLANT HAS COLLECTED FORM 15G / FORM 15H FROM TH E DEPOSITORS AND FILED WITH COMMISSIONER OF INCOME-TAX, DAVANGER E. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN NOT ACCEPTING THE FORM 15G AND 15H COLLECTED FROM NON-MEMBERS AND ALSO THE FINDING OF COLLECTION OF FORM 15G AND 15H IS MERE AFTERTHOUGHT IS PERVERSE IN LAW AND CON TRARY TO THE ITA NOS. 363 TO 366/BANG/2018 PAGE 5 OF 7 MATERIALS AVAILABLE ON RECORD. 5. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) OUGHT TO REMANDED THE CASE BACK TO THE ASSESSING OFFICER TO SEGREGATE THE DEMAND BETWEEN MEMBERS AND NON-MEMBERS IN ORDER TO ARRIVE AT THE CORRECT DEMAND. 6. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN LAW AND ON FACTS IN SUSTAINING DEMAND IN ORDER ISSU ED U/S 201(1) AND 201(1A) OF THE ACT EVEN THOUGH S.201(1) DOES NOT EM POWER THE ASSESSING OFFICER TO RAISE THE DEMAND. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HON'BLE INCOME TAX AP PELLANT TRIBUNAL, BANGALORE, TO ADD, DELETE, AMEND OR OTHERWISE MODIF Y ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR AT THE TIME OF H EARING OF THIS APPEAL. 6. THE ASSESSEE HAS ALSO RAISED SOME ADDITIONAL GRO UNDS WHICH ARE AS UNDER. ITA NO. 363/BANG/2018 1. THAT THE LEARNED LOWER AUTHORITIES BELOW ERRED I N LAW AND ON FACTS IN DEMANDING THE SUM U/S. 201(1) OF THE ACT EVEN IN RESPECT OF INTEREST PAID TO MEMBERS WHICH HAS BEEN WRONGLY CLASSIFIED A S INTEREST PAID TO NON-MEMBERS IN THE ASSESSMENT AND APPEAL PROCEEDING S. ITA NO. 364/BANG/2018 1. THAT THE LEARNED LOWER AUTHORITIES BELOW ERRED I N LAW AND ON FACTS IN DEMANDING THE SUM U/S. 201(1) OF THE ACT EVEN IN RESPECT OF INTEREST PAID TO MEMBERS WHICH HAS BEEN WRONGLY CLASSIFIED A S INTEREST PAID TO NON-MEMBERS IN THE ASSESSMENT AND APPEAL PROCEEDING S. ITA NO. 365/BANG/2018 1. THAT THE LEARNED LOWER AUTHORITIES BELOW ERRED I N LAW AND ON FACTS IN DEMANDING THE SUM U/S. 201(1) OF THE ACT EVEN IN RESPECT OF INTEREST PAID TO MEMBERS WHICH HAS BEEN WRONGLY CLASSIFIED A S INTEREST PAID TO NON-MEMBERS IN THE ASSESSMENT AND APPEAL PROCEEDING S. ITA NO. 366/BANG/2018 1. THAT THE LEARNED LOWER AUTHORITIES BELOW ERRED I N LAW AND ON FACTS IN DEMANDING THE SUM U/S. 201(1) OF THE ACT EVEN IN RESPECT OF INTEREST PAID TO MEMBERS WHICH HAS BEEN WRONGLY CLASSIFIED A S INTEREST PAID TO NON-MEMBERS IN THE ASSESSMENT AND APPEAL PROCEEDING S. 7. THE LD. AR OF ASSESSEE SUBMITTED CERTAIN ADDITIO NAL EVIDENCES ALONG WITH THE LEAVE TO FILE ADDITIONAL EVIDENCE. IT IS STATED TH AT THE LIST OF INTEREST PAID TO NON- MEMBERS CONTAINED THE INTEREST PAID EVEN TO MEMBERS AND DUE TO OVERSIGHT; THIS ERROR WAS NOT NOTICED WHILE PROSECUTING THE AP PEAL BEFORE CIT (A). THE LD. ITA NOS. 363 TO 366/BANG/2018 PAGE 6 OF 7 AR OF ASSESSEE SUBMITTED BEFORE US THAT THE ADDITIO NAL EVIDENCE SHOULD BE ADMITTED AND THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER EXAMINING THE ADDITIONAL EVIDENCE AN D IF THE NAME OF MEMBERS ARE WRONGLY INCLUDED IN THE LIST OF NON-MEMBERS THE N THE SAME SHOULD BE OMITTED AND THE DEMAND SHOULD BE RAISED ONLY IN RES PECT OF NON-MEMBERS AND NOT IN RESPECT OF MEMBERS. HE POINTED OUT THAT AS PER THE PAGE NO. 6 OF THE ADDITIONAL EVIDENCE IS THE LIST OF 49 MEMBERS ALL O F THEM ARE REGULAR MEMBERS WITH THE MEMBERSHIP NO. AS REGULAR NUMBER. HE FURT HER SUBMITTED THAT ON PAGE NO. 7 OF THE ADDITIONAL EVIDENCE ALSO, THERE ARE NA MES OF ANOTHER 56 MEMBERS FROM 50 TO 105 AND ALL THESE ARE ALSO REGULAR MEMBE RS. THEREAFTER HE SUBMITTED THAT AS PER PAGE 8 OF THE ADDITIONAL EVID ENCE IS THE LIST OF 56 MEMBERS FROM 106 TO 161 AND OUT OF THESE, ALL THE M EMBERS ARE REGULAR MEMBERS AND ONLY A FEW MEMBERS ARE NOMINAL MEMBERS I.E. SL.NO. 126 TO 133, 137 TO 139, 142 TO 145, 147, 148, 151 & 155 TO 159 AND SIMILARLY ON PAGE NO. 9 OF THE ADDITIONAL EVIDENCE ALSO, ONLY FEW MEMBERS A RE NOMINAL MEMBERS AND THE REMAINING MEMBERS ARE REGULAR MEMBERS. HE SUBM ITTED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF AO/CIT(A) FOR F RESH DECISION AFTER EXAMINING THIS ADDITIONAL EVIDENCE. THE LD. DR OF REVENUE SU PPORTED THE ORDER OF CIT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN THE FACTS OF PRESENT CASE, WE ADMIT THE ADDITIONAL GROUNDS AS WELL AS THE ADDITIO NAL EVIDENCE AND SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER EXAMINING THE ADDITIONAL EVIDENCE FILED BEFOR E US. NEEDLESS TO SAY, BEFORE PASSING A FRESH ORDER, THE LD. CIT (A) SHOULD PROVI DE REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES AND IF REQUIRED, HE MAY O BTAIN REMAND REPORT FROM THE AO. IN VIEW OF THIS DECISION, NO ADJUDICATION IS C ALLED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. ITA NOS. 363 TO 366/BANG/2018 PAGE 7 OF 7 9. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 08 TH AUGUST, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.