Arun Kumar Agrawal, Sundargarh V. ITO(TDS), Rourkela

ITA 4/CTK/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5782 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 04-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DAMODAR PATI
• Keywords: Reasonable cause; Condonation of delay; TDS
• Section: 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M & SHRI L .P. SAHU, AM ./ IT A NO . 04 /CTK/201 8 ( / ASSESSMENT YEAR :201 2 - 201 3 ) ARUN KUMAR AGRAWAL, PROP: M/S TILAK TRADING CO., MAIN ROAD, SUNDARGARH VS. ITO(TDS) ROURKELA T AN NO. : BBNT 0 1032 D ( / APPELLANT ) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI DAMODAR PATI , ADVOCATE /REVENUE BY : SHRI S UBHENDU DUTTA, DR / DATE OF HEARING : 12 /0 9 /2019 / DATE OF PRONOUNCEMENT : 24 /0 9 /2019 / O R D E R PER L.P.SAHU, A M : THIS APP EAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), SAMBALPUR , DATED 05.09.2017 FOR THE ASSESSMENT YEAR 201 2 - 2013 . 2. AS PER THE OFFICE NOTE, THERE IS A DELAY OF 22 DAYS IN FILING THE PRESENT APPEAL. IN THIS REGARD , THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY, TO WHICH LD. DR HAS NO OBJECTION. WE HAVE GONE THROUGH THE APPLICATION FILED BY THE ASSESSEE AND FOUND THAT THERE IS A REASONABLE CAUSE FOR CONDONATION OF DELAY IN FILING THE PRESENT APPEAL. ACCORDINGLY, WE CONDONE THE DELAY AND APPEAL OF THE ASSESSEE IS HEARD FINALLY. ITA NO . 0 4 /CTK/201 8 2 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE ORDER PASSED BY THE LD. BELOW FORUM SUFFERS THE VICE OF ILLEGALITY AND ARBITRARINESS. 2. TH AT THE LD. BELOW FORUM COMMITTED MANIFEST ERROR IN LAW AND IN FACTS IN NOT ACCEPTING THE FORMS BUT DEMANDING TCS ON THE ENTIRE AMOUNT OF SUCH SALES TURNOVER WHICH IS ILLEGAL AND ARBITRARY. 3. THAT BY VIRTUE OF AN AMENDMENT COAL WAS INCORPORATED FOR COL LECTION OF TCS U/S. 206C OF THE I.T.ACT. THE APPELLANT HAS SOLD GOODS TO THE MANUFACTURE WHO ARE AUTHORIZED TO MAKE SUCH PURCHASES AND SINCE IT IS A NEW LEVY, THE APPELLANT SHOULD NOT HAVE BEEN SADDLED WITH TAX LIABILITY. 4. THAT THE LEVY OF PENALTY IF ILLEGAL AND ARBITRARY. 5. THAT THE OTHER GROUNDS, IF ANY, SHALL BE URGED AT THE TIME OF HEARING. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF TRADING OF COAL IN THE NAME AND STYLE OF M/S TILAK TRADI NG CO. A TDS INSPECTION WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE LOCATED AT MAIN ROAD, SUNDARGARH ON 18.02.2013 TO VERIFY THE COMPLIANCE IN RESPECT OF CHAPTER XVIB & XVIIBB OF THE ACT. THE ITO(TDS) HELD THE ASSESSEE LIABLE FOR TCS FOR AN AMOU NT OF RS.4,69,462/ - U/S.206C(6) OF THE ACT AND FURTHER INTEREST OF RS.16,028/ - U/S.206C(7) OF THE ACT TOTALING TO RS.4,85,490/ - . THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), HOWEVER, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE CIT(A). 5. LD. AR BEFORE US SUBMITTED THAT BY VIRTUE OF AN AMENDMENT COAL WAS INCORPORATED FOR COLLECTION OF TCS U/S. 206C OF THE I.T.ACT AND THE ITA NO . 0 4 /CTK/201 8 3 ASSESSEE HAS SOLD GOODS TO THE MANUFACTURE , WHO ARE AUTHORIZED TO MAKE SUCH PURC HASES AND SINCE IT IS A NEW LEVY, THE ASSESSEE SHOULD NOT HAVE BEEN SADDLED WITH TAX LIABILITY. THEREFORE, LD. AR PRAYED THAT THE APPEAL OF THE ASSESSEE MAY KINDLY BE ALLOWED. TO SUPPORT HIS CONTENTIONS, LD. AR RELIED ON THE ORDER OF COORDINATE BENCH OF TH E TRIBUNAL IN CASE OF M/S TARINI MINERALS (P) LTD., IN ITA NO. 476/CTK/2013, ORDER DATED26.05.2015. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF AUTHORITIES BELOW. 7. AFTER HEARING BOTH THE SIDES AND PERUSING THE ENTIRE MATERIAL ON RECORD, WE FIND T HAT THE AO RAISED DEMAND OF RS.4,64,475/ - U/S.206C(6) AND RS.16,208/ - BY WAY OF INTEREST U/S.206C(7) OF THE ACT. THE CIT(A) OBSERVED THAT THE ASSESSEE HAS OBTAINED 27C FORMS FROM CERTAIN BUYERS WHICH CANNOT BE CONSIDERED TO HAVE BEEN FILED AS PER THE PROVI SIONS OF LAW. WE HAVE CAREFULLY GONE THROUGH THE FINDINGS RECORDED BY THE CIT(A) IN THIS REGARD AND IT IS NOT FOUND FROM THE ORDER OF CIT(A) THAT THE ASSESSEE HAS OBTAINED FORM 27C FROM ALL BUYERS WHICH HAS ALSO NOT BEEN SUBMITTED TO THE CONCERNED CIT(A) W ITHIN THE STIPULATED DATE. CONSIDERING THE ORDER OF THE COORDINATE BENCH OF THE TRIBUNAL IN CASE OF M/S TARINI MINERALS (P) LTD. (SUPRA) AS CITED BY THE LD. AR AND THE FACTUAL MATRIX OF THE PRESENT CASE, WE REMIT THE MATTER TO THE FILE OF AO FOR THE VERIFI CATION AS TO WHETHER THE FORM 27C HAS BEEN ITA NO . 0 4 /CTK/201 8 4 OBTAINED BY THE ASSESSEE FROM ALL THE BUYERS OR NOT. NEEDLESS TO SAY, THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNITY OF HEARING. THE ASSESSEE IS DIRECTED TO COOPERATE THE AO FOR EARLY DISPOSAL OF THE CASE. AC CORDINGLY, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 24 /0 9 /201 9 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 24 / 0 9 /201 9 PRAKASH KUMAR MISHRA, S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . ARUN KUMAR AGRAWAL, PROP: M/S TILAK TRADING CO., MAIN ROAD, SUNDARGARH 2. / THE RESPONDENT - ITO(TDS) ROURKELA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//