The Income-tax Oficer, Jammu V. Power Grid Corporation of India Ltd, Jammu

ITA 415/ASR/2012

• Counselvise Citation: 41520914 RSA 2012
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R RAJAGOPALAN DGM FINANCE
• Keywords: Period of limitation
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.415(ASR)/2012 ASSESSMENT YEAR:2011-12 PAN : INCOME TAX OFFICER, VS. POWER GRID CORPORATION OF INDIA LTD. TDS CIRCLE, JAMMU. NORTHERN REGION-II, OB-26, GRID BHAWAN, RAIL HEAD OFFICE, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:SH. R.RAJAGOPALAN, DGM (FINANCE) DATE OF HEARING: 11 /12/2012 DATE OF PRONOUNCEMENT:12/12/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF CIT(A), JAMMU, DATED 17.08.2012 FOR THE ASSESSME NT YEAR 2011-12 ON THE FOLLOWING GROUNDS OF APPEAL: 1 WHETHER THE LD. CIT(A) WAS RIGHT IN FACTS AND CI RCUMSTANCES AND IN LAW IN PASSING THE IMPUGNED ORDER AS THE SAM E IS CONTRARY TO FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE IMPUGNED ORDER IS ERRONEOUS IN LAW AS W ELL AS ON MERITS. ITA NO.415(ASR)/2012 2 3. WHETHER THE LD. CIT(A) WAS RIGHT IN FACTS AND CI RCUMSTANCES AND IN LAW IN HOLDING THAT IN RESPECT OF PRINCIPAL AMOUNT OF DEMAND, THE ASSESSEE IS NOT TO BE TREATED IN DEFAU LT AS IT HAD ACTED AS PER THE DIRECTIONS OF THE HONBLE HIGH COU RT. 4. WHETHER THE LD. CIT(A) WAS RIGHT IN FACTS AND CI RCUMSTANCES AND IN LAW IN NOT CONSIDERING THE FACT THAT CHARGIN G OF INTEREST IS MANDATORY AND THERE IS NO SPECIFIC DIRECTION FROM H ONBLE HIGH COURT REGARDING THE NON CHARGEABILITY OF INTEREST. 5. WHETHER THE LD. CIT(A) WAS RIGHT IN FACTS AND CI RCUMSTANCES AND IN LAW IN NOT CONSIDERING THE FACT THAT DECISIO N REFERRED BY THE LD. CIT(A) IS NOT OF JURISDICTIONAL TRIBUNAL. 2. IN THE PRESENT CASE, THE AO ISSUED AN INTIMATION UNDER SECTION 200-A OF THE INCOME TAX AT, 1961 ( HEREINAFTER CALLED TH E ACT) ON 02.12.2011 FOR THE ASSESSMENT YEAR 2010-2011 IN WHICH TAX DEDUCTED AT SOURCE WAS SHOWN AT RS.38,65,210/- AS NOT PAID TO THE GOVERNMENT AND INTEREST OF R.7,03,520/- UNDER SECTION 201(1A) OF THE ACT WAS ALSO CHARGED. THE ASSESSEE SUBMITTED THAT THE TAX AS DEDUCTED HAS BEEN DEPOSITED IN COMP LIANCE TO THE ORDER OF THE HONBLE HIGH COURT OF CALCUTTA AND ASSESSEE HAS MAI NTAINED SEPARATE BANK ACCOUNT AS PER DIRECTIONS OF THE HONBLE HIGH COURT OF CALCUTTA AND SUBMITTED THE SAME BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER EXAMINING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AS WE LL AS THE ORDER OF THE ITAT, INDORE BENCH AND THE HONBLE HIGH COURT OF CA LCUTTA, HELD THAT IN RESPECT OF PRINCIPAL AMOUNT OF DEMAND, THE ASSESSEE IS NOT TO BE TREATED IN DEFAULT AS IT HAS ACTED AS PER DIRECTIONS OF THE HO NBLE HIGH COURT OF ITA NO.415(ASR)/2012 3 CALCUTTA IN DEPOSITING TAX DEDUCTED IN A SEPARATE B ANK ACCOUNT. BUT AS PER LEVY OF INTEREST IS CONCERNED THOUGH IT IS LAWFUL Y ET IT IS SUBJECT TO FINAL ORDERS OF THE HIGH COURT AND THE AO WOULD BE FREE T O TAKE ACTION AS PER LAW AFTER THE RECEIPT OF FINAL ORDERS OF HONBLE HIGH C OURT OF CALCUTTA AS TILL THEN THE ASSESSEE IS PREVENTED TO DEPOSIT THE SAME IN GO VERNMENT ACCOUNT BY THE DIRECTIONS OF THE HIGH COURT, CALCUTTA. 3. THE LD. FIRST APPELLATE AUTHORITY HAS ALLOWED TH E APPEAL OF THE ASSESSEE VIDE IMPUGNED ORDER DATED 17.08.2012. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDER PASSED BY THE HONBLE HIGH COURT, WHICH THE ASSESSEE COMPANY HAS PRODUCED BEFORE US, WE ARE OF THE VIEW THAT THE LD. FIRST APPELLATE AUT HORITY HAS PASSED THE WELL REASONED ORDER, WHICH REQUIRES NO INTERFERENCE. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE ORDER OF THE CIT(A) IN PARA 5 ( PAGES 4 -5) IS REPRODUCED HEREUNDER: 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSION AND MATERIAL ON RECORDS. I HAVE GONE THROUGH THE ORDER OF THE HONB LE H.C. OF KOLKATA AND THE ORDERS OF CIT(A)XXX, NEW DELHI AND ITAT, IN DORE. THE TAX AS DEDUCTED HAS BEEN DEPOSITED IN A SEPARATE BANK A CCOUNT, AS PER THE DIRECTIONS OF THE HONBLE HIGH COURT HENCE ASSESSEE CANNOT BE SAID TO BE IN DEFAULT AS FOR AS PRINCIPAL DEMAND IS CONCERN ED. IN THE CASE DECIDED BY THE CIT(A), DELHI THE A.O. HIMSELF HAD PASSED AN ORDER U/S 154 OF THE IT ACT IN RESPECT OF PRINCIPAL DEMAN D BUT INTEREST U/S 201/201(A) WAS KEPT INTACT. IN RESPECT OF APPEAL OF ASSESSEE THE CIT(A) NEW DELHI IN HIS ORDER NO.1130/12-13 AND 115 0/12-13 DATED 17.07.12 (COPY ON RECORDS) HAS HELD AS UNDER: ITA NO.415(ASR)/2012 4 AOS ORDERS REGARDING INTEREST ARE ALSO AS PER THE LAW AND ARE ALSO UPHELD BUT IT WILL BE CIRCUMCISED BY THE FINAL ORDER OF THE HONBLE KOLKATA HIGH COURT AS THE SAID AMOUNT WAS D EPOSITED IN A PARTICULAR BANK ACCOUNT ON THE DIRECTION OF TH E HIGH COURT AND APPARENT CONTENTION THAT NO INTEREST AN BE DEMA NDED U/S 201 (IA) OF THE ACT IS CORRECT AS IT IS PREVENTED B Y ORDER OF HONBLE KOLKATA HIGH COURT FROM DEPOSITING THE SAID AMOUNT IN GOVERNMENT ACCOUNT. HENCE, IT IS A VALID REASON FOR NOT LEVYING INTEREST IN ALL ABOVE ASSESSMENT YEAR. IN A NY CASE, IN VIEW OF THE SPECIFIC ORDER OF THE HONBLE HIGH COUR T NOT TO DEPOSIT THE TAX TO THE CREDIT OF CENTRAL GOVT. BUT TO DEPOSIT THE SAME WITH IN A SEPARATE ACCOUNT WOULD NOT BE A DEFA ULT WITHIN THE MEANING OF SECTION 201 READ WITH PROVISO THERET O. I HAVE FOLLOWED THE ORDER OF CIT(A)-II, NAGPUR VIDE HIS OR DER NO.26TO32/11-12 DATED 22.12.2011, WHO HAS DEALT WIT H THE SAME ISSUES IN THAT ORDER IN APPELLANTS OWN CASE FOR NA GPUR REGION (WESTERN REGION). 5.1. FURTHER, ON AN APPEAL OF REVENUE, THE HONBLE ITAT, INDORE ON IDENTICAL ISSUE IN THE CASE OF ASSESSEE ITSELF HAS HELD AS UNDER IN ITA NO.81 INDL/05: WE HAVE HEARD THE LD. DR AND PERUSED THE FINDINGS OF THE CIT(A). THE CIT(A) ON GOING THROUGH THE INTERIM ORD ER OF THE HONBLE HIGH COURT OF CALCUTTA WAS OF THE VIEW THAT THE INTERIM RESTRAIN ORDER PASSED B THE HONBLE HIGH COURT IS I N FORCE AND THE INTERIM OFFER SHALL CONTINUE UNTIL FURTHER ORDE RS AND IN THAT WAY THE ASSESSEE CANNOT BE HELD TO BE IN DEMAND RAI SED BY THE AO. THE CIT(A), THEREFORE, FOLLOWING THE ORDER OF H IGH COURT HELD THAT THE ASSESSEE CANNOT BE HELD TO BE AN ASS ESSEE DEEMED TO BE IN DEFAULT AND AS SUCH THE DEMAND RAISED BY T HE AO AGAINST THE ASSESSEE COMPANY WILL NOT SURVIVE. THE CIT(A) IN PARA 8 HAS DIRECTED THE AO TO ASCERTAIN FROM THE RE GISTRY OF THE HONBLE HIGH COURT ABOUT THE LATEST POSITION OF T HE WRIT PETITION AND IF FINAL ORDER HAS BEEN PASSED BY THE HIGH COURT TAKE FURTHER ACTION IN ACCORDANCE WITH THE DIRECTIO N OF THE HIGH COURT. THE LD. DR SUBMITTED THAT THE DECISION REFER RED TO BY THE CIT(A) WAS NOT OF THE JURISDICTIONAL HIGH COURT . THEREFORE, THE SAME IS NOT BINDING . WE DO NOT AGREE WITH THE LD. DR BECAUSE WHAT EVER ORDER WAS QUOTED BEFORE THE CIT(A ) PERTAINS ITA NO.415(ASR)/2012 5 TO THE MATTER IN ISSUE AND GOES TO THE ROOT OF THE MATTER. ULTIMATELY, THE CIT(A) DID NOT PASS AN ORDER BECAUS E THE AO WAS GIVING OPPORTUNITY TO TAKE ACTION AGAINST THE A SSESSEE AFTER FINAL ORDER IS PASSED BY THE H HONBLE KOLKATA HIGH COURT. THE PERIOD OF LIMITATION IS NOT APPLICABLE TO SUCH CASE AND THE AO COULD HAVE TAKEN ACTION AGAINST THE ASSESSEE IN FUT URE AS PER THE DIRECTIONS OF THE CIT(A). THE RIGHT OF THE REVENUE TO MOVE AGAINST THE ASSESSEE UNDER THE PROVISIONS OF SECTIO N 201 HAS NOT BEEN CURTAILED BY THE CIT(A) THROUGH THE IMPUGNED O RDER. THE AO IN CASE FINDS ANY CONTRARY VIEW AGAINST THE ASSE SSEE, COULD HAVE PROCEEDED AGAINST THE ASSESSEE IN ACCORDANCE W ITH LAW. IT THEREFORE, APPEARS THAT THERE SHOULD NOT HAVE BEEN ANY GRIEVANCE. OF THE REVENUE AGAINST THE ORDER OF THE CIT(A). WE ACCORDINGLY, DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE WHICH IS DISMISSED. HOWEVER, THE A.O. MAY TAKE ACTI ON AGAINST THE ASSESSEE AS DIRECTED BY THE CIT(A) IN PARA 8 OF THE IMPUGNED ORDER. WITH THESE OBSERVATIONS THE APPEAL OF THE REVENUE IS DISMISSED. 5.2. IN VIEW OF THE ABOVE, CONCURRING WITH MY LD. C OLLEAGUES AND RESPECTFULLY FOLLOWING THE DECISION OF HONBLE ITAT , INDORE AS ABOVE, IT IS HELD THAT IN RESPECT OF PRINCIPAL AMOUNT OF D EMAND, THE ASSESSEE IS NOT TO BE TREATED IN DEFAULT AS IT HAS ACTED AS PER THE DIRECTIONS OF HONBLE HIGH COURT IN DEPOSITING THE TAX DEDUCTED IN A SEPARATE BANK ACCOUNT. AS FAR AS THE LEVY OF INTEREST IS CONCERNE D THOUGH IT IS LAWFUL YET IT IS SUBJECT TO FINAL ORDERS OF THE HIGH COURT AND THE AO WOULD BE FREE TO TAKE ACTION AS PER LAW AFTER THE RECEIPT OF FINAL ORDERS OF HONBLE HIGH COURT OF KOLKATA AS TILL TEN THE ASSES SEE IS PREVENTED TO DEPOSIT THE SAME IN GOVERNMENT ACCOUNT BY THE DIREC TION OF THE HIGH COURT. IN THE RESULT THE APPEAL IS ALLOWED. 5. KEEPING IN VIEW THE AFORESAID FINDINGS GIVEN BY THE LD. FIRST APPELLATE AUTHORITY, WE ARE OF THE CONSIDERED VIEW THAT THE L D. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDER UNDER THE LAW, WHI CH DESERVES TO BE UPHELD. ITA NO.415(ASR)/2012 6 ACCORDINGLY, WE UPHOLD THE SAME BY DISMISSING THE A PPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12TH DECEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12TH DECEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:POWER GRID CORPN. INDIA LTD. JAMMU. 2. THE ITO (TDS) CIRCLE, JAMMU 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.