ITO, New Delhi V. Director General Of Employment, Training, New Delhi

ITA 3698/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58686 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-02-2012
• Assessment Year: misc
• Appeal Filed On: 02-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI B BENC H BEFORE SHRI R.P. TOLANI , JM & SHRI A.N. PAHUJA, AM ITA NO.3698/DEL/2011 ASSESSMENT YEAR:2008-09 INCOME TAX OFFICER, WARD 49(4),ROOM NO. 402,LAXMI NAGAR, NEW DELHI V/S . DIRECTOR GENERAL OF EMPLOYMENT, TRAINING, MINISTRY OF LABOUR & EMPLOYMENT, 2 & 4, SHRAM SHAKTI BHAWAN, NEW DELHI [TAN : DELD08493 C] (APPELLANT) (RESPONDENT) ASSESSEE BY NONE REVENUE BY SHRI PRADEEP KUMAR, DR DATE OF HEARING 21-02-2012 DATE OF PRONOUNCEMENT 21-02-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 2ND AUGUST, 2011 BY THE REVENU E AGAINST AN ORDER DATED 26 TH MAY, 2011 OF THE LD. CIT(A)-XXX, DELHI, RAISES THE FOLLOWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN:- 1) DELETING THE DEMAND RAISED ON ACCOUNT OF INTERES T OF ` ` 85,447/- CHARGED U/S 201(1A) ON SHORT DEDUCTION OF TAX AT SOURCE ON THE PAYMENT MADE TO PROFESSIONAL BY HOLDING THAT THE SAME WAS NOT INTENTIONAL. 2) IN INTERPRETING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF M/S HINDUSTAN COCA COLA BEVERAGES (P) LTD. AS NOWHERE IN THE JUDGMENT HAS IT BEEN HELD THAT IF THE DEDUCTEE HAS PAID ADVANCE TAX THEN NO INTEREST U/S 201(1A) CAN BE CHARGED. I F FACT THE JUDGMENT HOLDS THAT THE LIABILITY U/S 201( 1A) REMAIN UNALTERED. ITA N O.3698 /DEL./2011 2 2. AT THE OUTSET, WE FIND THE TAX EFFECT IN THIS APPEAL FILED BY THE REVENUE IS MERELY ` 85,447/- I.E. BELOW THE LIMIT OF RS.3 LAKHS STIPULATED BY THE CBDT IN THEIR INSTRUCTION NO.3/20 11 DATED 9 TH FEBRUARY, 2011. THE LD. DR APPEARING BEFORE US COULD NOT POI NT OUT THAT THE CASE FALLS WITHIN ANY OF THE FOLLOWING EXCEPTIONS I N THE AFORESAID CBDT INSTRUCTION : A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVIS IONS OF AN ACT OR RULE ARE UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR ULTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS B EEN ACCEPTED BY THE DEPARTMENT. 3. SINCE THE AFORESAID INSTRUCTION DATED 9.2.20 11 ITSELF CLARIFIES IN PARA 11 THAT THIS WILL APPLY TO APPEALS FILED ON O R AFTER 9TH FEBRUARY 2011 AND APPEAL IN THE INSTANT CASE HAS BEEN FILED ON 2.8.20 11 IN VIOLATION OF THE SAID INSTRUCTION, WE HAVE NO ALTERNATIVE BUT TO DISMIS S THIS APPEAL OF THE REVENUE, IN LIMINE. SD/- SD/- R.P. TOLANI) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. INCOME TAX OFFICER, WARD 49(4), NEW DELHI. 2. DIRECTOR GENERAL OF EMPLOYMENT, TRAINING, MINIS TRY OF LABOUR & EMPLOYMENT, 2 & 4, SHRAM SHAKTI BHAWAN, NEW DELHI . 3. CIT CONCERNED. 4. CIT(A)-XXX,NEW DELHI 5. DR, ITAT,B BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT