ITO, New Delhi V. M/s Air India Ltd., New Delhi

ITA 3962/DEL/2012

• Counselvise Citation: 396220114 RSA 2012
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 30-07-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .3958/DEL/2012 TO 3962/DEL/2012 3958/DEL/2012 TO 3962/DEL/2012 3958/DEL/2012 TO 3962/DEL/2012 3958/DEL/2012 TO 3962/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2010 2010 2010 2010- -- -11, 2011 11, 2011 11, 2011 11, 2011- -- -12, 2011 12, 2011 12, 2011 12, 2011- -- -12, 2011 12, 2011 12, 2011 12, 2011- -- -12 & 2011 12 & 2011 12 & 2011 12 & 2011- -- -12 1212 12 INCOME INCOME INCOME INCOME TAX OFFICER, TAX OFFICER, TAX OFFICER, TAX OFFICER, WARD WARD WARD WARD- -- -50(2), 50(2), 50(2), 50(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S AIR INDIA LIMITED, M/S AIR INDIA LIMITED, M/S AIR INDIA LIMITED, M/S AIR INDIA LIMITED, IGI, AIRPORT ENGG. COMPLEX IGI, AIRPORT ENGG. COMPLEX IGI, AIRPORT ENGG. COMPLEX IGI, AIRPORT ENGG. COMPLEX BUILDING, BUILDING, BUILDING, BUILDING, DOMESTIC TERMINAL, PALAM, DOMESTIC TERMINAL, PALAM, DOMESTIC TERMINAL, PALAM, DOMESTIC TERMINAL, PALAM, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AACCN6194P. PAN : AACCN6194P. PAN : AACCN6194P. PAN : AACCN6194P. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAM BILASH MEENA, SR.DR. RESPONDENT BY : NONE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THESE FIVE APPEALS ARE FILED BY THE REVENUE AGAINS T THE COMMON ORDER OF LEARNED CIT(A)-XXX, NEW DELHI DATED 25 TH MAY, 2012 FOR THE AY 2010-11 & 2011-12. 2. THE COMMON GROUNDS RAISED BY THE REVENUE IN ITS APPEALS READ AS UNDER:- 1. THE ORDER OF LD.CIT(A) IS PERVERSE AND ERRONEOU S ON THE FACTS AND CIRCUMSTANCES OF THE CASE. THE CIT(A ) ON THE ONE HAND HAS DISMISSED THE APPEAL OF THE DEDUCTOR ASSESSEE BY HOLDING THAT THE ORDER PASSED BY THE ASSESSING OFFICER U/S 200A OF THE INCOME-TAX ACT, 1 961 IS NOT APPEALABLE U/S 246A OF THE INCOME-TAX ACT, 1961 AND ON THE OTHER HAND HAS GIVEN DIRECTION TO THE ASSESS ING OFFICER TO TAKE CORRECTIVE ACTION TO RECTIFY THE MI STAKES IN ITA NOS.3958 TO 3962/D/2012 2 THE ORDER WITHIN TWO MONTHS EITHER THROUGH THE ITD SYSTEM OR MANUALLY. 2. THE LD.CIT(A) HAS OVERREACHED HIS JURISDICTION I N ISSUING DIRECTION TO THE ASSESSING OFFICER IN A NON -EST APPEAL. 3. THE LD.CIT(A) HAS ALSO ERRED IN FIXING THE TIME LIMIT OF TWO MONTHS FOR RECTIFICATION OF THE ORDER PASSED BY THE ASSESSING OFFICER U/S 200A OF THE INCOME-TAX ACT, 1 961 AND DIRECTING HIM TO DO CORRECTION MANUALLY. THE PROVI SIONS OF THE INCOME-TAX ACT, 1961 DO NOT PERMIT THE ASSESSIN G OFFICER TO MAKE ANY CORRECTION IN THE E-TDS RETURNS FILED BY THE DEDUCTOR ASSESSEE AS HE HAS BEEN PROVIDED WITH VERY LIMITED POWERS TO MODIFY THE DATA IN THE E-TDS RETU RNS TO WHICH THE DEDUCTOR ASSESSEE IS NOT AUTHORIZED AND W HICH ALSO NEEDS VERIFICATION AT HIS END. 4. THE LD.CIT(A) HAS FURTHER ERRED IN ISSUING DIREC TION TO THE ASSESSING OFFICER FOR RECTIFICATION OF THE ORDE R WHEN ONUS TO FILE CORRECTION STATEMENT LIES ENTIRELY WIT H THE DEDUCTOR ASSESSEE AND THERE IS NO ROLE OF THE ASSES SING OFFICER IN THIS REGARD. 3. AT THE TIME OF HEARING BEFORE US, IT WAS SUBMITT ED BY THE LEARNED DR THAT THE LEARNED CIT(A) HAS HIMSELF OBSERVED THA T THE ORDER OF THE ASSESSING OFFICER IS NOT APPEALABLE UNDER SECTION 2 46A AND, THEREFORE, HE HAS DISMISSED THE REVENUES APPEALS. BUT, AT TH E SAME TIME, IN PARAGRAPH 1 OF HIS ORDER, HE HAS GIVEN DIRECTION TO THE ASSESSING OFFICER AND HAS ALSO DIRECTED TO GIVE THE APPEAL EF FECT WITHIN TWO MONTHS OF THE RECEIPT OF THE ORDER. THIS ORDER OF THE LEARNED CIT(A) IS SELF-CONTRADICTORY. ITA NOS.3958 TO 3962/D/2012 3 4. NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE DE SPITE THE NOTICE HAVING BEEN SENT TO THE ASSESSEE WELL IN ADV ANCE. WE, THEREFORE, PROCEED TO DECIDE THE APPEALS OF THE REV ENUE EX PARTE AFTER CONSIDERING THE SUBMISSIONS OF THE LEARNED DR AND A LSO PERUSING THE ORDERS OF LOWER AUTHORITIES. 5. WE FIND THAT THE ASSESSING OFFICER IN HIS INTIMA TION UNDER SECTION 200A HAS FOUND THAT THERE WAS DELAY IN CERTAIN PAYM ENTS OF TDS AND, THEREFORE, HE HAS CHARGED THE INTEREST AND ALSO INT EREST ON INTEREST. THE ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT(A) IN WHICH FOLLOWING GROUNDS WERE RAISED:- 1. THAT THE INTIMATION U/S 200A PASSED BY THE LEAR NED INCOME TAX OFFICER IS BAD IN LAW AND IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT THE LEARNED INCOME TAX OFFICER HAS GONE WRO NG BY RAISING THE INTEREST DEMAND OF RS.22,64,984/- OU T OF DEMAND OF RS.5914985/- AS PER COLUMN (E) OF INTIMAT ION U/S 200A OF THE INCOME TAX ACT WITHOUT APPRECIATING THE FACT THAT THE DEMAND IS ON ACCOUNT OF INTEREST ON T DS ON THE SALARY PAID ON 02/03.2010 THE DATE OF PAYMENT O F WHICH HAS ERRONEOUSLY HAS BEEN MENTIONED AS 28/02/2 011 AND HENCE THE DEPTT. HAS TAKEN THE DUE DATE OF PAYM ENT OF TDS AS 07/03/2010 INSTEAD OF CORRECT DUE DATE OF PA YMENT OF TDS WHICH WILL BE 07/04/2010. YOUR APPELLANT IS IN PROCESS OF REVISING THE TDS RETURN BY MAKING THE NECESSARY CORRECTIONS. 3. THAT THE LEARNED INCOME TAX OFFICER HAS GONE WRO NG BY RAISING THE INTEREST DEMAND OF RS.1683735/- OUT OF ITA NOS.3958 TO 3962/D/2012 4 DEMAND OF RS.5914985/- AS PER COLUMN (E) OF INTIMAT ION U/S 200A OF THE INCOME TAX ACT WITHOUT APPRECIATING THE FACT THAT THE SALARY FOR THE MONTH OF MARCH 2010 HA S BEEN PROVIDED ON 31/03/2010 AND WAS PAID ON 07/04/2010 A ND THUS THE TAX WAS DEPOSITED ON 07/05/2010. 4. THAT THE LEARNED ASSESSING OFFICER HAS GONE WRON G BY RAISING A DEMAND OF RS.1428171/- U/S 200A AS INT EREST ON INTEREST AS NO INTEREST IS PAYABLE ON THE INTERE ST AS PER THE INCOME TAX ACT. 5. THE ABOVE GROUNDS OF APPEAL ARE MUTUALLY EXCLUSI VE AND WITHOUT PREJUDICE TO EACH OTHER. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR MODIFY ANY OF THE GROUNDS OF APPEAL AT OR BE FORE THE HEARING OF THE APPEAL. 6. THE LEARNED CIT(A) DISMISSED THE ASSESSEES APPE ALS BUT, AT THE SAME TIME, IN THE FIRST PARAGRAPH OF HIS ORDER, HE OBSERVED AS UNDER:- THE ABOVE APPEALS ARE FILED BY THE APPELLANTS U/S 200A OF THE I.T.ACT IN THE FINANCIAL YEAR 2011-12 AGAINST T HE COMPUTERIZED PROCESSING ORDER OF AO(TDS) WHERE TAX AND INTEREST U/S 200A HAVE BEEN COMPUTED IN THE COMPUTE R FOR SHORT DEDUCTION/SHORT PAYMENT/LATE PAYMENT BY THE APPELLANT. THERE IS NO APPEAL PROVISION U/S 246A O F THE I.T.ACT FOR FILING APPEALS AGAINST ORDER U/S 200A O F THE I.T.ACT. THE APPELLANTS ARE ADVISED TO FILE NECESS ARY CORRECTIONS STATEMENTS BEFORE THE AO(TDS), COORDINA TE AND COOPERATE WITH THE AO AND RECTIFY THE ORDER U/S 200 A/154 OF THE I.T.ACT WITH THE AO AND AFTER RECTIFICATION, PAY THE ITA NOS.3958 TO 3962/D/2012 5 TAX AND INTEREST IF ANY, AFTER RECTIFICATION. THE AO (TDS) SHOULD GIVE APPEAL EFFECT TO THESE ORDERS WITHIN 2 MONTHS OF RECEIPT OF THE ORDER IMMEDIATELY BY ISSUING NECE SSARY NOTICES U/S 154 OF THE ACT TO THE APPELLANT AND REC TIFYING THE ORDERS AS PER LAW. IF THE RECTIFICATION IS NOT POSSIBLE IN COMPUTER, THE AO SHOULD MANUALLY RECTIFY BY PASSING SUITABLE ORDER IN A FORMAT SO THAT A MASS RECTIFICA TION CAN BE COMPLETED QUICKLY. THE AO (TDS) SHOULD GIVE OPPORTUNITY OF BEING HEARD TO THE APPELLANT BEFORE RECTIFYING THESE ORDERS AND LISTENING TO THE GRIEVA NCES OF THE APPELLANT. 7. AFTER CONSIDERING THE ARGUMENTS OF LEARNED DR AN D ALSO PERUSING THE MATERIAL PLACED BEFORE US, WE ARE OF THE OPINIO N THAT WHEN IN THE OPINION OF THE CIT(A) THE APPEALS ARE NOT MAINTAINA BLE AGAINST THE ORDER UNDER SECTION 200A AND THE APPEALS HAVE BEEN DISMISSED BY HIM AS NOT MAINTAINABLE, THERE IS NO QUESTION OF GIVING EFFECT TO THE ORDER OF LEARNED CIT(A). WE, THEREFORE, EXPUNGE THE DIRECTI ON OF THE LEARNED CIT(A) THAT AO(TDS) SHOULD GIVE APPEAL EFFECT TO TH ESE ORDERS WITHIN TWO MONTHS OF THE RECEIPT OF THE ORDER. BUT, AT TH E SAME TIME, WE FIND THAT IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS POI NTED OUT THAT THERE WERE CERTAIN MISTAKES COMMITTED BY THE AO(TDS) WHIL E TAKING THE VIEW THAT THERE WAS DELAY IN DEPOSIT OF TDS. IN THE GRO UNDS OF APPEAL, THE ASSESSEE HAS POINTED OUT THAT THERE IS NO DELAY IN THE DEPOSIT OF THE TDS BY THE ASSESSEE. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THE PROPER COURSE FOR THE ASSESSEE WOULD HAVE BEEN TO FILE THE RECTIFICATION PETITION UNDER SECTION 154 REQUESTING THE ASSESSING OFFICER TO MODIFY THE ORDER PASSED UNDER SECTION 20 0A. IT IS NEEDLESS TO MENTION THAT IF THE ASSESSEE WOULD FILE SUCH AN APPLICATION, THE ASSESSING OFFICER IS DUTY BOUND TO DISPOSE OF THE S AME IN ACCORDANCE WITH LAW. ITA NOS.3958 TO 3962/D/2012 6 8. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER OF LEA RNED CIT(A) HOLDING THAT ASSESSEES APPEALS ARE REQUIRED TO BE DISMISSED BEING NOT MAINTAINABLE. WE EXPUNGE THE DIRECTION GIVEN BY HI M WHEREBY HE DIRECTED TO GIVE APPEAL EFFECT TO HIS ORDER BUT, AT THE SAME TIME, WE OBSERVE THAT IF THE ASSESSEE FILES THE APPLICATION UNDER SECTION 154 FOR RECTIFICATION OF THE ORDER PASSED UNDER SECTION 201 (1A), THE ASSESSING OFFICER WILL DISPOSE OF THE SAME IN ACCORDANCE WITH LAW AT AN EARLY DATE. WITH THESE OBSERVATIONS, THE REVENUES APPEA LS ARE DEEMED TO BE ALLOWED FOR STATISTICAL PROPOSES. 9. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AR E DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 12 TH OCTOBER, 2012. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 12.10.2012 VK. COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -50(2), NEW DELHI. 50(2), NEW DELHI. 50(2), NEW DELHI. 50(2), NEW DELHI. 2. RESPONDENT : M/S AIR INDIA LIMITED, M/S AIR INDIA LIMITED, M/S AIR INDIA LIMITED, M/S AIR INDIA LIMITED, IGI, AIRPORT ENGG. COMPLEX BUILDING, IGI, AIRPORT ENGG. COMPLEX BUILDING, IGI, AIRPORT ENGG. COMPLEX BUILDING, IGI, AIRPORT ENGG. COMPLEX BUILDING, DOMESTIC TERMINAL, PALAM, DOMESTIC TERMINAL, PALAM, DOMESTIC TERMINAL, PALAM, DOMESTIC TERMINAL, PALAM, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR