M/s Avesta Good Earth Foods Pvt Ltd , Bangalore V. The Deputy Commissioner of Income Tax(TDS) Circle-16(1), Bangalore

ITA 427/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5027 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Assessee Lawyers: H N KHINCHA
• Keywords: Recovery proceedings; Principle of natural justice
• Section: 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH 'A' BEFORE SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO.427, 430, 431, 434 & 435 /BANG/2018 (ASST. YEARS 2008- 09 TO 2012-13) AVESTA GOOD EARTH FOODS PVT. LTD., REGUS UB CITY, CONCORDE, 15 TH FLOOR, VITTAL MALLYA ROAD, BENGALURU PAN-BLRA07290D. VS. THE DY. COMMISSIONER OF INCOME-TAX, (TDS), CIRCLE-16(1), BENGALURU. . RESPONDENT ASSESSEE BY : SHRI H.N K HINCHA, C.A REVENUE BY : SHRI B.R R AMESH, JCIT DATE OF HEARING : 19-07-2018 DATE OF PRONOUNCEMENT : 01-08-2018 O R D E R PER SHRI JASON P BOAZ, ACCOUNTANT MEMBER: THESE FIVE APPEALS BY THE ASSESSED ARE DIRECTED AGA INST THE ORDERS OF THE CIT(A)-13, BANGALORE DATED 24/11/2017 FOR A SST. YEARS 2008-09 TO 2012-13. COMMON ISSUES BEING INVOLVED, THESE APPEALS WERE HEARD ITA NOS.426, 429, 432 & 436 2 TOGETHER AND WE DEEM IT APPROPRIATE TO DISPOSE OFF THE SAME BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. BRIEFLY STATED, THE FACTS RELEVANT FOR DISPOSAL OF THESE APPEALS ARE AS UNDER:- 2.1 THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF RESEARCH IN THE FIELD OF BIO-SERVICES. A SURVEY U/S 133A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') WAS CONDUCTED AT THE BUSI NESS PREMISES OF THE ASSESSEE ON 26/7/2013, WHEREIN THE ASSESSING OFFICE R ('AO') NOTICED THAT THEY HAD NOT REMITTED THE TDS ON VARIOUS PAYME NTS IN THE NATURE OF SALARY, INTEREST, CONTRACTS, RENT AND FEES FOR P ROFESSIONAL SERVICES. THE AO TREATED THE ASSESSEE AS AN 'ASSESSEE IN DEFA ULT' U/S 201(1) OF THE ACT AND PASSED ORDERS U/S 201(1) AND 201(1A) OF THE ACT DATED 24/6/20L4 FOR ASST. YEARS 2008-09 TO 2012-13 RAISIN G DEMAND U/S 201(1) AND CHARGING INTEREST U/S 201(1A) OF THE ACT. 2.2 ON APPEAL, THE CIT(A)-13, BANGALORE DISPOSED OF F THE ASSESSEE'S APPEALS FOR ASST. YEARS 2008-09 TO 2012-13 VIDE ORD ERS DATED 24/11/2017, ALLOWING THE ASSESSEE PARTIAL RELIEF. 3.1 AGGRIEVED BY THE ORDERS OF THE CIT(A)-13, BANGA LORE DATED 24/11/2017 FOR ASST. YEARS 2008-09 TO 2012-13, THE ASSESSEE HAS FILED THESE FIVE APPEALS FOR THE AFORESAID ASST. YEARS RA ISING ALMOST SIMILAR IDENTICAL ROUNDS. THE GROUNDS FOR ASST. YEAR 2008-0 9 ARE EXTRACTED HEREUNDER:- '1. THE LEARNED INCOME-TAX OFFICER HAS ERRED IN PA SSING THE ORDER IN THE MANNER PASSED AND THE LEARNED CIT (A) 13 HAS ERRED IN CONFIRMING THE SAME. THE IMP UGNED ITA NOS.426, 429, 432 & 436 3 ORDER PASSED IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IS BAD IN LAW AND IS LIABLE TO BE QUASHED. 21. THE LOWER AUTHORITIES HAVE ERRED IN I) NOT CONSIDERING THE TAXES ALREADY REMITTED BY TH E APPELLANT. II) IN HOLDING APPELLANT ASSESSEE-IN-DEFAULT U/S 20 1(1) IN RESPECT OF TAXES ALREADY REMITTED BY THE APPELLANT 2.2 THE TAXES ALREADY REMITTED BY THE APPELLANT HAV E TO BE CONSIDERED AND DEMAND U/S 201(1) TOGETHER WITH CONSEQUENT INTEREST U/S 201 (1A) HAVE TO BE DELETED . 3.1 IN ANY CASE AND WITHOUT PREJUDICE, THE AUTHORIT IES BELOW HAVE ALSO ERRED IN A) NOT APPRECIATING THAT; I. INTEREST U/S. 201 (1A) IS COMPENSATORY IN NATUR E. II. THE RECIPIENT OF INCOME HAVING FILED LOSS RETUR NS NO TAXES WERE PAYABLE TO THE GOVERNMENT. III. NO TAXES BEING PAYABLE TO THE GOVERNMENT, THE QUESTION OF DELAY IN RECOVERY OF TAXES AND INTEREST FOR DELAY DOES NOT ARISE. B) LEVYING /CONFIRMING THE INTEREST U/S 201 (1A) OF THE ACT. 3.2 THE ACTION OF THE AUTHORITIES BELOW BEING CONTR ARY TO FACTS AND CIRCUMSTANCES OF THE CASE AND THE LAW APPLICABLE IS TO BE NEGATED. ITA NOS.426, 429, 432 & 436 4 3.3 THE LEVY OF INTEREST U/S. 201(1 A) BEING WITHOU T PROPER APPRECIATION OF LAWS AND CONTRARY TO VARIOUS JUDICIAL PRONOUNCEMENTS IS TO BE DELETED. 4. IN ANY CASE AND WITHOUT PREJUDICE THE CALCULATIO N OF INTEREST AS DONE IS ERRONEOUS AND EXCESSIVE. 5. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THA T THE IMPUGNED ORDER BE QUASHED OR ATLEAST TAX AND INTERE ST LEVIED/CONFIRMED U/S. 201(1) AND 201 (1A) BE DELETE D.' 3.2.1 THOUGH AS MANY AS 4 TO 5 GROUNDS HAVE BEEN RA ISED IN THESE APPEALS, THE MAIN GROUNDS URGED IS AT S.NO.21 AND 2 .2, WHEREIN IT WAS CONTENDED THAT THE AUTHORITIES BELOW HAVE ERRED IN NOT CONSIDERING THE TDS ALREADY REMITTED BY THE ASSESSEE IN THESE FIVE ASST. YEARS AND IN HOLDING THE ASSESSEE TO BE AN 'ASSESSEE IN DEFAULT' U/S 201(L) OF THE ACT IN RESPECT OF SUCH TAXES ALREADY REMITTED BY TH E ASSESSEE. IN THESE CIRCUMSTANCES, IT IS CONTENDED THAT AFTER CREDIT IS GIVEN FOR TDS REMITTED, THE DEMAND U/S 201(1) OF THE ACT IN THIS REGARD IS TO BE DELETED ALONG WITH CONSEQUENT INTEREST CHARGED U/S 201(1A) OF THE ACT. 3.2.2 IN THIS REGARD, THE LD AR FOR THE AS SESSEE SUBMITTED THAT THE ASSESSEE HAS CERTIFIED THAT CHALLAN DETAILS EXTRACT ED FROM THE NSDL WEBSITE EVIDENCING PAYMENT OF TAXES FOR EACH OF THE FIVE ASST. YEARS 2008-09 TO 2012-13 AND FILED BEFORE THE AUTHORITIES BELOW, HAVE NOT BEEN CONSIDERED BY THEM WHILE PASSING THE IMPUGNED ORDERS RAISING THE ITA NOS.426, 429, 432 & 436 5 DEMANDS U/S 201(1) AND CHARGING OF INTEREST U/S 201(1A) OF THE ACT. THE LD AR DRAW THE ATTENTION TO COPY OF DETAILS OF NSDL CHALLAN EVIDENCING PAYMENT OF TAX YEAR WISE FILED; AT PAGE 46-47 OF PAPER BOOK (PAGES 1 TO 49) FOR ASST. YEAR 2008-09; AT PAGE 50- 51 OF PAPER BOOK (PAGES 1 TO 53) FOR ASST. YEAR 2009-10; AT PAGE 25 OF PAPER BOOK (PAGES 1 TO 26) FOR ASST. YEAR 2010-11; PAGES 18 AND 19 OF PAPER BOOK (PAGES 1 TO 20) FOR ASST. YEAR 2011-12 AND PAGE 12 OF PAPER BOOK (PG 1 TO 13) FOR ASST. YEAR 2012-13. IT IS PRAYED THAT THE TRIBU NAL BE PLEASED TO DIRECT THE AUTHORITIES BELOW TO EXAMINE AND VERIFY THE AFORESAID CLAIMS, ALREADY MADE BEFORE THEM, AND DELETE THE TA X DEMAND RAISED U/S 201(1) AND CONSEQUENTIAL INTEREST CHARGED U/S 2 01(1A) OF THE ACT TO THAT EXTENT. 3.3 PER CONTRA, THE LD DR FOR REVENUE, WHILE SUPPOR TING THE IMPUGNED ORDERS, SUBMITTED THAT THE ASSESSEE'S CLAI MS MAY BE RESTORED TO THE FILE OF THE AUTHORITIES BELOW FOR EXAMINATIO N, VERIFICATION AND ACTION IN ACCORDANCE WITH LAW. 3.4.1 WE HAVE HEARD BOTH PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. THE M AIN CONTENTION OF THE ASSESSEE, IN THE FIVE APPEALS BEFORE US, IS THAT THE AO HAD ERRED IN HOLDING THE ASSESSEE AS AN 'ASSESSEE IN DEFAU LT' AND PASSED ORDERS U/S 201(1) OF THE ACT RAISING DEMAND AND CHARGING CO NSEQUENTIAL INTEREST U/S 201(1A) OF THE ACT IN RESPECT OF TDS AL READY REMITTED BY THE ASSESSEE FOR ASST. YEARS 2008-09 TO 2012-13, IN SPITE OF DETAILS THEREOF FILED BEFORE THE AO. IT IS SUBMITTED THAT EVEN ON APPEAL, THE LD ITA NOS.426, 429, 432 & 436 6 CIT(A) HAD NOT CONSIDERED THE DETAILS FILED BY THE ASSESSEE IN THIS REGARD. 3.4.1 WE HAVE CAREFULLY PERUSED THE IMPUGNED O RDERS OF THE LD CIT(A) FOR THE FIVE ASST. YEARS IN APPEAL BEFORE US . WE FIND THAT, INTER ALIA, IN THE ORDERS OF ASST. YEAR 2008-09, THE LD C IT(A), AT PARA 4.2 THEREOF HAS OBSERVED THAT SINCE THE ASSESSEE HAD NE VER FURNISHED ANY PROOF BEFORE THE AO IN SUPPORT OF THE CLAIMS THAT T HE AMOUNTS OF TDS HAD ALREADY BEEN PAID, SHE HAS SUSTAINED THE AO'S O RDER ON THIS ISSUE. SIMILAR OBSERVATIONS AND FINDINGS HAVE BEEN R ECORDED AT EITHER PARA 3 OR PARA 4 IN HER IMPUGNED ORDERS FOR THE OT HER FOUR ASST. YEARS 2009-10 TO 2012-13. ON THE CONTRARY, AS PER THE AVERMENTS O F THE LD AR FOR THE ASSESSEE, THE COPIES DETAILS OF CHALLANS EXTRACTED FROM NSDL WEBSITE EVIDENCING REMITTANCES OF TDS WERE FILED BUT HAVE N OT BEEN CONSIDERED BY THE AUTHORITIES BELOW; AS PER THE DETAILS IS PUT FORTH BY THE LD AR, AS RECORDED IN PARA 3.2.2 OF THIS ORDER (SUPRA). IN OUR CONSIDERED VIEW, THE INTEREST OF SUBSTANTIAL JUSTIC E AND EQUITY WOULD BE WELL SERVED IF THE FINDINGS OF THE AUTHORITIES B ELOW BE SET ASIDE ON THIS ISSUE AND ACCORDINGLY, REMAND THIS MATTER TO T HE FILE OF THE AO FOR EXAMINATION AND VERIFICATION OF THE ASSE SSEE'S CLAIMS THAT IT HAS PAID/REMITTED THE TDS AMOUNTS AND CONSEQUENT IALLY ADJUDICATE THE SAME IN ACCORDANCE WITH LAW IN RESPECT OF THE D EMAND TO BE RAISED U/S 201(1) AND CONSEQUENTIAL INTEREST 201(1A) OF TH E ACT IF ANY. NEEDLESS TO ADD, THE ASSESSEE SHALL BE AFFORDED ADEQUATE OPPORT UNITY OF BEING HEARD IN THE MATTER AND TO FILE DETAILS/SUBMISSIONS IN THIS REGARD WHICH SHALL BE DULY CONSIDERED WHILE PASSING FRESH ORDERS ON THIS ISSUE FOR ASST. YEARS 2008-09 TO ITA NOS.426, 429, 432 & 436 7 2012-13. CONSEQUENTLY, THE ASSESSEES GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE ASSESSEES APPEALS FOR ASST. YEARS 2008-09 TO 2012-13 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST AUGUST, 2018 . (LALIET KUMAR) (JAS ON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMB ER BANGALORE DATED : 1/8/2018 VMS COPY TO :1.THE ASSESSEE 2.THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER SR. PRIVATE SECRETAR Y, ITAT, BANGALORE ITA NOS.426, 429, 432 & 436 8 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR. P.S... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WE BSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT.. 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..