ACIT, New Delhi V. M/s. Air France, New Delhi

ITA 3860/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74318 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 25-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: SAILESH GUPTA
• Section: 201(1); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITA NOS. 3860 & 3861/DEL/2012 ASSTT. YRS: 2008-09 & 2009-10 ACIT CIR. 49(1), VS. M/S AIR FRANCE, NEW DELHI. PRAKASH DEEP BUILDING, TOLSTOY MARG, CONNAUGHT PLACE, NEW DELHI. PAN: AAACA 5284 B ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : MS. Y. KAKKAR SR. DR RESPONDENT BY : SHRI SAILESH GUPTA CA O R D E R PER R.P. TOLANI, J.M: : THESE ARE REVENUES APPEALS AGAINST SEPARATE ORDER S OF CIT(A)-XXX, NEW DELHI RELATING TO A.Y. 2008-09 & 2009-10. VARI OUS ISSUES ARE RAISED WHICH IN EFFECT GIVE RISE TO FOLLOWING COMMON GROUN D OF APPEAL: THE ORDER OF LD. CIT(A) IS PERVERSE AND ERRONEOUS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. THE CIT(A) ON THE ONE HAND HAS DISMISSED THE APPEAL OF THE DEDUCTOR ASSES SEE BY HOLDING THAT THE ORDER PASSED BY THE ASSESSING OFFI CER U/S 200A OF THE INCOME-TAX ACT, 1961 IS NOT APPEALABLE U/S 2 46A OF THE INCOME TAX ACT, 1961 AND ON THE OTHER HAND HAS GIVE N DIRECTION TO THE ASSESSING OFFICER TO TAKE CORRECTI VE ACTION TO RECTIFY THE MISTAKES IN THE ORDER WITHIN TWO MONTHS EITHER THROUGH THE ITD SYSTEM OR MANUALLY. 2. BRIEF FACTS ARE: THE ASSESSEE MOVED SOME 154 APP LICATION AGAINST THE ORDER OF ASSESSING OFFICER PASSED U/S 201(1)/ 201(1 A) OF THE I.T. ACT FOR SHORT DEPOSIT OF TDS AMOUNT IN THE RESPECTIVE YEARS AND C REATED THE DEMAND. 2 2.1. AGGRIEVED, AGAINST THE ORDERS OF A.O. THE ASSE SSEE PREFERRED FIRST APPEALS. THE CIT(A) THOUGH DISMISSED THE APPEALS OF THE ASSESSEE AS NOT MAINTAINABLE, HOWEVER, GAVE CERTAIN DIRECTIONS FOR REMEDIAL MEASURE. THE REVENUE IS AGGRIEVED ON THE DIRECTIONS ISSUED BY LD. CIT(A). 3. LD. COUNSEL FOR THE ASSESSEE RELIED ON ITAT CONS OLIDATED ORDER DATED 1-10-2012 RENDERED IN ITA NOS. 4028 TO 4049/DEL/201 2 & OTHERS IN THE CASE OF ACIT VS. M/S UNITECH WIRELESS (TAMIL NADU) PVT. LTD., TO THE EFFECT THAT THE ITAT DECIDED THE ISSUE ON FOLLOWING OBSERVATION S: LD. COMMISSIONER OF INCOME TAX (A) HAS MERELY RE MANDED THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER, TH EREFORE, THERE IS NO JUSTIFICATION TO INTERFERE WITH THE ORDER, THE S AME IS UPHELD. HOWEVER, THE ASSESSING OFFICER IS DIRECTED TO DECID E THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE O PPORTUNITY OF BEING HEARD TO THE RESPECTIVE ASSESSEES. THE ASS ESSEES ARE AT FURTHER LIBERTY FURNISH EVIDENCE, IF ANY, TO SUBSTA NTIATE THEIR CLAIM. SINCE THE ASSESSEES HAVE BEEN GRANTED FAIR O PPORTUNITY, THEREFORE, THE TIME LIMIT OF COMPLETION WITHIN TWO MONTHS, AS DIRECTED BY THE LD. COMMISSIONER OF INCOME TAX (A), IS WITHDRAWN. HOWEVER, THE ASSESSING OFFICER IS DIRECT ED TO COMPLETE WITHIN REASONABLE TIME AS SOON AS POSSIBLE . FINALLY, SUBJECT TO THE ABOVE RIDER, ALL THE APPEAL S OF THE REVENUE STAND DISMISSED. 4. LD. DR ON THE OTHER HAND, RELIED ON THE CONSOLID ATED ORDER OF ITAT DATED 27-9-2012 IN THE CASES OF GOVT. CO-ED SECONDA RY SCHOOL & OTHERS RENDERED IN ITA NOS. 3910/DEL/2012 & OTHERS IN WHIC H SIMILAR ISSUE HAS BEEN DECIDED AS UNDER: 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR. S INCE NO APPEAL IS PROVIDED U/S 246A AGAINST THE INTIMATION ISSUED U/S 200A, THEREFORE, LD. CIT(A) HAVING SO HELD COULD NO T HAVE 3 GIVEN ANY DIRECTION. AN APPELLAT4 AUTHORITY DERIVES ITS JURISDICTION FROM STATUTORY PROVISIONS AND, THEREFO RE, CAN ACT ONLY AS PER PROVISIONS OF LAW BESTWING POWER UPON H IM. IF NO SUCH POWER IS THERE, HE CANNOT GIVE ANY DIRECTION. THEREFORE, THE FOLLOWING DIRECTIONS OF LD. CIT(A) ARE EXPUNGED FROM HIS ORDER: THE APPELLANTS ARE ADVISED TO FILE NECESSARY CORRE CTIONS STATEMENT BEFORE THE ASSESSING OFFICER (TDS), COORD INATE AND COOPERATE WITH THE ASSESSING OFFICER AND AFTER RECTIFICATION PAY THE TAX AND INTEREST IF ANY, AFTE R RECTIFICATION. THE ASSESSING OFFICER (TDS) SHOULD G IVE APPEAL EFFECT TO THESE ORDERS WITHIN 2 MONTHS OF RE CEIPT OF THE ORDER IMMEDIATELY BY ISSUING NECESSARY NOTICES U/S 154 OF THE ACT TO THE APPELLANT AND RECTIFYING THE ORDERS AS PER LAW. IF THE RECTIFICATION IS NOT POSSIBLE IN COMPUTER, THE ASSESSING OFFICER SHOULD MANUALLY REC TIFY BY PASSING SUITABLE ORDER IN A FORMAT SO THAT A MAS S RECTIFICATION CAN BE COMPLETED QUICKLY. THE ASSESSI NG OFFICER (TDS) SHOULD GIVE OPPORTUNITY OF BEING HEAR D TO THE APPELLANT BEFORE RECTIFYING THESE ORDERS AND LI STENING TO THE GRIEVANCES OF THE APPELLANT. AS PER THE NEW COMPUTERIZED PROCEDURE, THE APPELLAN T SHOULD TO NSDL WEBSITE WWW.TIN.NA.COM AND FILE CORRECTION STATEMENT OR DEFICIENT DATA THERE. THERE IS NO ACCESS OF ASSESSING OFFICER (TDS) TO ABOVE NSDL SIT E. HE CAN GENERATE FINAL DEMAND NOTICE U/S 156 AND ORDERS U/S 200A/201(1)/201(1A) AFTER GETTING INSTRUCTIONS FROM HIGHER AUTHORITIES. THE APPELLANT CAN FILE CORRECTI ON STATEMENT ANY NUMBER OF TIMES IS THIS PROCESS IN NS DI SITE. WHEN HIS ALL ALTERNATIVES ARE EXHAUSTED, HE S HOULD GIVE CALCULATION OF 201(1) TAX DEDUCTED FROM PAYMEN TS TO DEDUCTEE AND INTEREST U/S 201(1A) TO ASSESSING OF FICER (TDS) AND PAY THE FINAL TAX AND INTEREST ACCORDINGL Y. THEN HE CAN RECOVER THE TAX FROM DEDUCTEE AS PER LA W. FINALLY, THE INTEREST U/S 201(1A) IS A BURDEN ON AP PELLANT WHICH IS COMPENSATORY IN NATURE, IF PROPER TDS IS N OT DEDUCTED AND PAID TO GOVERNMENT ACCOUNT. 4 IN THE RESULT THE DEPARTMENTAL APPEALS ARE ALLOWED IN TERMS OF AFOREMENTIONED DIRECTION. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. LD. COUNSEL FOR THE ASSESSEE CONCEDES THAT THE CIT(A) WAS CORRECT IN HOLDING THE NON-APPEALABLE NATURE OF THE IMPUGNED ORDER AND THE APPEAL CANNOT BE FILED BY THE ASSESSEE AGAINST THE ORDER PASSED U/S 201(1)/201(1A). THUS, ON TECHNICAL TERMS REVENUES APPEALS ARE TO BE ALLOWED LOOKING AT THE CONCESSION OF THE LD. COUNSE L. 5.1. COMING TO THE LATTER PART OF THE JUDGMENT WE MAY POINT OUT THAT THE ORDER OF CIT(A) BEFORE US IS DISTINGUISHABLE ON FAC TS. IT STARTS WITH WORDS THE APPELLANTS ARE ADVISED TO FILE NECESSARY CORRE CTIONS STATEMENTS .. THUS, THE EFFECT OF DIRECTIONS, IF ANY, WILL DEPE ND UPON WHETHER ASSESSEE FILES ANY RECTIFICATION APPLICATION BEFORE ASSESSIN G OFFICER OR NOT. THUS, THE DIRECTION OF THE CIT(A) BEING DEPENDENT ON A CONTIN GENCY OF ASSESSEES FILING AN APPLICATION, HAS NO LEGAL EFFECT. 5.2. BESIDES, AS PER THE CLEAR PROVISIONS OF I.T. A CT, IF ASSESSEE CHOOSES TO PROCEED WITH THE LEGAL REMEDY PROVIDED BY THE ACT, THE ASSESSING OFFICER HAS TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW, EVEN IF THERE IS NO DIRECTION OF THE CIT(A). THE NET EFFECT OF THE DIRECTION OF CIT( A) IS TO THE EFFECT THAT IF THE ASSESSEE FILES RECTIFICATION APPLICATION THE AS SESSING OFFICER WILL DECIDE THE SAME IN ACCORDANCE WITH LAW. THE DIRECTION OF THE CIT(A) TO ASSESSING OFFICER (TDS) TO GIVE APPEAL EFFECT WITHIN 2 MONTHS OF THE RECEIPT OF ORDER HAS NO CONSEQUENCE INASMUCH AS THE ENTIRE PROCESS W ILL START ONLY AFTER APPLICATION IS FILED BY THE ASSESSEE. THUS, IN OR V IEW, CIT(A)S DIRECTIONS ARE INEFFECTIVE AND DO NOT CREATE ANY LEGAL BINDING. NE EDLESS TO SAY THAT ASSESSEE HAS VARIOUS REMEDIES UNDER INCOME-TAX ACT. TO SEEK REMEDIAL ACTION, THERE 5 CAN NOT BE ANY ESTOPPEL OVER THAT REMEDIAL RIGHT I N ACCORDANCE WITH LAW. IF THE ASSESSEE CHOOSES TO TAKE A REMEDIAL ACTION AS A RULE OF LAW ASSESSING OFFICER HAS TO DECIDE THE SAME IN ACCORDANCE WITH L AW. IN VIEW OF ASSESSEES AGREEING THAT APPEALS WERE NOT MAINTAINABLE, THE RE VENUES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 14-03-2014. SD/- SD/- ( SHAMIM YAHYA) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14-03-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR