The ITO, TDS-3, JAMNAGAR V. Shri Bherulal J. Maliwal (HUF), JAMNAGAR

ITA 419/RJT/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2374 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 14-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M J CHARANIA
• Keywords: Procedural lapse

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: S H RI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] INCOME TAX OFFICER , TDS - 3 , JAMNAGAR (APPELLANT) VS SHRI BHERULAL J. MALIWAL (HUF), POP. OF ANURAG IMPEX, UDYOGNAGAR, JAMNAGAR PAN: AADHM7757B (RESPONDENT) REVENUE BY : S H RI M.J. CHARANIA, D . R. ASSESSEE BY: S H RI SAGAR SHAH , A.R. DATE OF HEARING : 13 - 01 - 2 016 DATE OF PRONOUNCEMENT : 20 - 01 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THI S REVENUE S APPEAL FOR A.Y. 2010 - 11 , AR ISES FROM ORDER OF THE CIT(A), JAMNAGAR DATED 03 - 07 - 2015 IN APPEAL NO. CIT(A) / JAM/165/14 - 15/285 , IN PROCEEDINGS UNDER SECTION 206C(6)/206C(7) OF THE INCOME TAX AC T, 1961; IN SHORT THE ACT . I T A NO . 419 / RJT /20 15 A SSESSMENT YEAR 2010 - 11 I.T.A NO. 419 /RJT /20 15 A.Y. 2010 - 11 PAGE NO ITO VS. SHRI BHERULAL J. MALIWAL (HUF) 2 2. THE REVENUE S SOLE SUBSTANTIVE GROUND CHALLENGES THE LOWER APPELLATE ORDER DELETING TCS DEMAND OF RS. 20,45,560/ - MADE BY THE ASSESSING OFFICER IN ORDER DATED 15 - 12 - 2014 PASSED U/S. 206C(6) AND INTEREST THEREUPON UNDER 206C( 7) OF THE ACT ON ACCOUNT OF ASSESSEE S FAILURE IN COLLECT ING TAX ON SCRAP SALES OF RS. 13,02,90,782/ - . THE ASSESSING OFFICER REJECTED ASSESSEE S EXPLANATION THAT THE ABOVE STATED PROVISION DOES NOT APPLY IN CASE OF TRADING OF SCRAP. THE ASSESSEE FILED AP PEAL. IT PLACED ON RECORD FORMS 27BA AND 27C IN COURSE OF LOWER APPELLATE PROCEEDINGS . THE CIT(A) HAS RESTORED THE ISSUE BACK TO THE ASSESSING OFFICER INTER ALIA BY OBSERVING THAT THE ASSESSEE CANNOT BE TREATED AS THE ONE IN DEFAULT ACCORDINGLY . HE CONC LUDES THAT IF THE ABOVE STATED FORMS HAVE BEEN FILED AFTER DUE DATE OF FILING THAN ALSO THE ASSESSEE WILL NOT BE TREATED IN DEFAULT BUT THE INTEREST APP LICABLE WILL BE CHARGED FROM DUE OF DEDUCTION TILL THE DATE OF FILING OF RETURN OF INCOME BY THE BUYERS CONCERNED. THIS LEAVES THE REVENUE AGGRIEVED. 3. WE HAVE HEARD BOTH THE PARTIES. CASE FILE PERUSED . THE ASSESSING OFFICER RAISED THE IMPUGNED DEMAND ON ACCOUNT OF ASSESSEE S FAILURE IN COLLECTING TAX AT SOURCE. THERE IS NO DISPUTE ABOUT THE SAME. THE FACT ALSO R EMAINS THAT THE ASSESSEE HAS FI L E D HIS BUYERS FORM NO. 27BA AND 27C. THE CIT(A) HAS RESTORED THE ISSUE BACK FOR VERIFICATION THEREOF. THERE IS NO GENUINENESS ISSUE QUA THE SAME. THE REVENUE FURTHER FAILS TO REFER TO ANY STATUTORY PROVISIO N WHICH COULD PROVE THAT THIS BELATED SUBMISSION OF FORMS BARS THE ASSESSEE FROM CLAIMING ANY BENEFIT. WE OBSERVE IN THESE I.T.A NO. 419 /RJT /20 15 A.Y. 2010 - 11 PAGE NO ITO VS. SHRI BHERULAL J. MALIWAL (HUF) 3 FACTS THAT THIS IS ONLY A PROCEDURAL LAPSE WHEREIN NO PREJUDICE IS CAUSED TO THE REVENUE AS THE CONCERNED BUYERS HAVE MADE THEIR RES PECTIVE DECLARATION. THE LD. DEPARTMENTAL REPRESENT ATIVE STRONGLY SUBMITTED THAT THE CIT(A) OUGHT TO HAVE UPHELD THE INTEREST COMPUTATION IN QUESTION. WE HOLD THAT THE SAME IS AN ANCILLARY ISSUE ONLY DEPENDING ON FINAL OUTCOME OF THE MAIN GROUND WHICH HA S BEEN REMITTED FOR VERIFICATION. THE ASSESSING OFFICER SHALL PROCEED AFRESH FOR THE IMPUGNED INTEREST COMPUTATION IF ANY; AS PER LAW AT THE TIME OF FINALIZING CONSEQUENTIAL PROCEEDINGS. THE REVEN UE S ARGUMENTS ACCORDINGLY FAIL . 4. THIS REVENUE S APPE AL IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 20 - 01 - 201 6 SD/ - SD/ - (ANIL CHATURVEDI ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 20 /01/2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT