Shri Indreswar Bharali, Greater Noida V. Assistant Commissioner of Income tax, Circle-2, Dibrugarh

ITA 412/GTY/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8923 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: TDS; FORM 26AS
• Section: 201; 143(2); 13; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC GAUHATI BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 412/GAU/2019 ASSESSMENT YEAR: 20 1 4 - 15 S HRI INDRESWAR BHARALI GREATER NOIDA, A - 017, BLACK GOLD APARTMENTS, SECTOR - OMEGA, GREATER NOIDA, UTTAR PRADESH, PIN - 201 308 PAN: ACSPB0019Q / V/S . A.C.I.T, CIR - 2, DIBRUGARH , PUSHKARA HOUSE, NH - 37, NUTUN GAON, MOHANNAGHAT, DIBRUGARH, ASSAM, PIN - 786 008 / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT SHRI SANJAY MODY, FCA, A .R / BY RESPONDENT SHRI AMITAVA SEN, JCIT, SR. DR / DATE OF HEARING 1 8 - 03 - 20 2 1 / DATE OF PRONOUNCEMENT 1 8 - 03 - 20 2 1 / O R D E R THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 20 - 06 - 2019 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), DIBRUGARH [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [ CIT(A) ] IS BAD IN LAW, FACTS AND PROCEDURE . 2. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN ABSENCE OF ANY VALID NOTICE UNDER SECTION 143(2) OF THE AC T HAVING BEEN ISSUED, THE IMPUGNED ORDER OF RE - ASSESSMENT PASSED IS WITHOUT JURISDICTION AND BAD IN LAW. 3. FOR THAT ASSUMPTION OF JURISDICTION TO RE - OPEN THE ASSESSMENT IN THE INSTANT CASE BEING WITHOUT SATISFACTION OF THE PRE - REQUISITE REQUIREMENTS ITA NO. 412/GAU/2019 A.Y 2014 - 15 INDRESWAR BHARALI PAGE 2 OF T HE LAW, THE SAME IS BAD IN LAW AND CONSEQUENTLY, THE RESULTANT ORDER OF RE - ASSESSMENT PASSED IS UNSUSTAINABLE. 4. FOR THAT IN ABSENCE OF ANY VALID SANCTION HAVING BEEN GRANTED UNDER SECTION 151 OF THE ACT , THE IMPUGNED ORDER OF RE - ASSESSMENT IS BAD IN LAW AND IS LIABLE TO BE CANCELLED. 5. FOR THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ARBITRARILY MADE ADDITION OF RS. 15,15,490/ - BY THE LEARNED AO MERELY ON ACCOUNT OF FIGURES APPEARING IN FORM - 26AS. 6. FOR THAT THE ADDITION OF RS. 3,67,836/ - ON ACCOUNT OF PENSION ARBITRARILY MADE BY THE LD. AO IS BAD IN LAW AND UNTENABLE. 7. FOR THAT YOUR APPELLANT CRAVES LEAVE OF YOUR HONOURS TO TAKE ADDITIONAL GROUND OR GROUNDS AND/ OR TO MODIFY ANY GROUND(S) OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT HE PRESSES ONLY GROUND NO. 5 AS PER INSTRUCTION OF HIS CLIENT AND REMAINING GROUNDS ( GROUND NO. 1 TO 4 & 6, 7) MAY BE DISMISSED AS NOT PRESSED. THEREFORE, GROUND NOS. 1 TO 4, 6 & 7 ARE DISMISSED AS NOT PRESSED. 4. VIDE GROUND NO.5 THE ASSESSEE HAS CONTESTED THE VALIDITY OF CONFIRMATION OF ADDITION OF RS. 15,15,490/ - BY THE LD. CIT(A). THIS ADDITION WAS MADE BY THE LEARNED ASSESSING OFFICER ( IN SHORT, THE LD. AO ) ON ACCOUNT OF D IFFERENCE IN FIGURE S APPEARING IN FORM 26AS AS COMPARED TO RETURNED INCOME OF THE ASSESSEE. THE TOTAL TDS DEDUCTED AS PER FORM 26AS WAS RS. 2,97,570/ - WHEREAS THE ASSESSEE HAD SHOWN THE TDS AS PER HIS ITR AT RS. 1,42,962/ - . THEREFORE, THE AO FORMED THE B ELIEF THAT THE ASSESSEE HAD CONCEALED HIS INCOME RELATING TO TDS DEDUCT ION OF RS. 1,54,608/ - . THUS, HE MADE THE IMPUGNED ADDITION INTO THE INCOME OF THE ASSESSEE IN THE ASSESSMENT PROCEEDINGS CARRIED OUT U/S. 147 OF THE INCOME - TAX ACT, 1961 ( IN SHORT, THE ACT) . 5. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER SUBMITTED THAT IN FACT, THE ASSESSEE WAS GIVEN CONSULTANCY FEES BY ASSAM COMPANY LIMITE D AGAINST WHICH THE GROSS CONSULTANCY FEES ACCRUE D TO THE ASSESSEE OF RS. 27,46,080/ - FOR THE F.Y 2013 - 14 RELATING TO THE AY 2014 - 15 UNDER CONSIDERATION. THE SAID COMPANY DEDUCTED TDS OF RS. 2,74,608/ - ON THE GROSS CONSULTANCY FEES ACCRUED TO THE ASSESSE E. HOWEVER, THE SAID COMPANY HAD GONE INSOLVENT. THEREFORE, THE SAID COMPANY DID NOT PAY THE FULL CONSULTANCY FEE. THE COMPANY DID NOT PAY AMOUNT OF RS. 15,46,080/ - OUT OF GROSS CONSULTANCY FEES (RS. 27,46,080/ - ) ACCRUED TO THE ASSESSEE AND WRITTEN BAC K THE SAME ITA NO. 412/GAU/2019 A.Y 2014 - 15 INDRESWAR BHARALI PAGE 3 IN THE BOOKS OF ACCOUNT DURING QUARTER ENDING SEPTEMBER, 2017. THE LD. COUNSEL, THEREFORE , SUBMITTED THAT TDS WAS DEDUCTED AT A HIGHER RATE BY M/S. ASSAM COMPANY INDIA LIMITED. HOWEVER, THE ASSESSEE, IN FACT, ACTUALLY DID NOT RECEIVE THE EN TIRE AMOUNT WHATEVER THE INCOME WAS RECEIVED BY HIM THAT WAS OFFERED FOR TAXATION. THE LD. DR, ON THE OTHER HAND, COULD NOT REBUT/POINT OUT ANY DISCREPANCY IN THE ABOVE SUBMISSIONS OF THE ASSESSEE. 6 . I HAVE HEARD THE RIVAL CONTENTIONS. I FIND THAT S INCE THE ASSESSEE HAS SHOWN BEFORE ME BY WAY OF A CERTIFICATE ISSUED (PAGE - 13 OF THE P.B) FROM THE PAYER THAT THE AMOUNT AS FOUND IN THE TDS CERTIFICATE WAS ACTUALLY PAID TO THE ASSESSEE, THEREFORE, THE IMPUGNED ADDITION IS NOT WARRANTED. THE SAME IS ACC ORDINGLY ORDERED TO BE DELETED. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE STAND S PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT AT THE TIME OF HEARING ON T HURSDAY , 1 8 TH MARCH , 2021 . SD/ - (S ANJAY GAR G ) JUDICIAL MEM BER * *PP /SR.PS - 1 8 - 03 - 2021 /KOLKATA / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT /ASSESSEE: S HRI INDRAESWAR BHARALI, A017, BLACK GOLD APARTMENTS, SECTOR - OMEGA, GREATER NOIDA, PIN 201 308 (U.P) 2. /RESPONDENT - ASSTT. COMMISSIONER OF INCOME - TAX, CIR - 2, PUSHKARA HOUSE, NH - 37, NUTUN GAON, MOHANGHAT, DIBRUGARH, PIN 786 008, ASSAM. 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, GUWAHATI 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ FOR, SENIOR PRIVATE SECRETARY