M/s. Maruti Suzuki India Ltd., New Delhi V. ACIT, New Delhi

ITA 4390/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1381 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 12-03-2013
• Assessment Year: 2010-2011
• Appeal Filed On: 14-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TARUN SEEM
• Assessee Lawyers: V MOHAN C AS; VED JAIN MRS RANO JAIN
• Keywords: Opportunity of being heard
• Section: 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NOS SS S. .. .4389/DEL/2012 TO 4395/DEL/2012 4389/DEL/2012 TO 4395/DEL/2012 4389/DEL/2012 TO 4395/DEL/2012 4389/DEL/2012 TO 4395/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEARS SS S : : : : 2010 2010 2010 2010- -- -11, 2010 11, 2010 11, 2010 11, 2010- -- -11, 2010 11, 2010 11, 2010 11, 2010- -- -11, 2011 11, 2011 11, 2011 11, 2011- -- -12, 2011 12, 2011 12, 2011 12, 2011- -- -12. 12. 12. 12. 2011 2011 2011 2011- -- -1 11 12 AND 2011 2 AND 2011 2 AND 2011 2 AND 2011- -- -12 1212 12 M/S MARUTI SUZUKI INDIA M/S MARUTI SUZUKI INDIA M/S MARUTI SUZUKI INDIA M/S MARUTI SUZUKI INDIA LIMITED, LIMITED, LIMITED, LIMITED, PLOT NO.1, NELSON MANDELA PLOT NO.1, NELSON MANDELA PLOT NO.1, NELSON MANDELA PLOT NO.1, NELSON MANDELA ROAD, ROAD, ROAD, ROAD, VASANT KUNJ, VASANT KUNJ, VASANT KUNJ, VASANT KUNJ, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 070. 110 070. 110 070. 110 070. PAN : PAN : PAN : PAN : AAACM0829Q. AAACM0829Q. AAACM0829Q. AAACM0829Q. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, TDS CIRCLE TDS CIRCLE TDS CIRCLE TDS CIRCLE- -- -50(1), 50(1), 50(1), 50(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN, MRS. RANO JAIN & SHRI V.MOHAN, CAS. RESPONDENT BY : SHRI TARUN SEEM, SR.DR. ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH : :: : THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXX, NEW DELHI DATED 25 TH MAY, 2012 FOR THE AY 2010- 11 AND 2011-12. 2. THE COMMON GROUNDS RAISED IN ALL THESE APPEALS R EAD AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD BOTH THE EYE OF LAW AND O N FACTS. 2. THAT THE LD.A.O. (TDS)/CIT(A) ERRED IN LAW IN FA ILING TO APPRECIATE THAT DEMAND ORDER U/S 156 CAN BE ISSUED ONLY WHEN ANY TAX, INTEREST, PENALTY, FINE OR ANY OTHER SUM IS PAYABLE IN CONSEQUENCE OF ANY ORDER PASSED UNDER TH E ACT AND INTIMATION U/S 200A OF THE ACT, DOES NOT CONSTI TUTE ORDER PASSED UNDER THE ACT. ITA NOS.4389 TO 4395/D/2012 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN GROSS VIOLATION OF THE PROVISIONS OF SECTION 250(1) OF TH E INCOME TAX ACT, I.E. WITHOUT ISSUING NOTICE TO THE APPELLA NT AND WITHOUT GIVING ANY HEARING TO THE APPELLANT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN DIRECTING THE APPELLANT TO FILE RECTIFICATION APPLI CATION U/S 154 OF THE ACT BEFORE AO (TDS) AND ALSO DIRECTING T HE AO TO GIVE APPEAL EFFECT TO THESE ORDERS WITHIN 2 MONTHS OF RECEIPT OF ITS ORDER INSTEAD OF DEALING WITH THE MA TTER ITSELF. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN HOLDING THAT THE ORDER PASSED U/S 200A OF THE INCOM E TAX ACT IS NOT A APPELLABLE ORDER U/S 246A OF THE ACT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN DISMISSING THE APPEAL IGNORING THE FACT THAT THE AO HAS RAISED THE DEMAND WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N NOT APPRECIATING THAT THE DIFFERENCES IN RELATION TO TH E DATE OF PAYMENT, AMOUNT OF PAYMENT, ETC. IN THE TDS RETURN FILED BY THE APPELLANT IN FORM NO.24Q FOR THE QUARTER-4 O F FY 2009-10 AND THE BANK CHALLANS FOR DEPOSIT OF TDS FO R THE PERIOD AND NON-MENTIONING OF REASONS FOR LOWER DEDU CTION IN THE TDS RETURN & OTHERS DISCREPANCIES WERE ONLY ON ACCOUNT OF DATA ENTRY ERRORS AND ROUNDING OFF DIFFE RENCES. 8. THAT EACH GROUND OF APPEAL IS INDEPENDENT AND WITHOUT PREJUDICE TO OTHER GROUNDS OF APPEAL AROSE HEREIN. 9. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE FAIRLY ADMITTED THAT THIS ISSUE IS COVERED BY THE DECISION OF ITAT IN THE CASE OF ITO VS. M/S AIR INDIA LIMITED I N ITA NOS.3958 TO 3962/DEL/2012. HE, THEREFORE, STATED THAT A SIMILAR OBSERVATION/DIRECTION MAY BE ISSUED. ITA NOS.4389 TO 4395/D/2012 3 4. LEARNED DR RELIED UPON THE ORDER OF LEARNED CIT( A) AND STATED THAT SINCE NO APPEAL IS PROVIDED AGAINST THE ORDER UNDER SECTION 200A, THE LEARNED CIT(A) RIGHTLY DISMISSED THE ASSESSEES APPEAL. HE, THEREFORE, SUBMITTED THAT THE APPEALS OF THE ASSESS EE SHOULD BE DISMISSED AND THE ORDER OF LEARNED CIT(A) SHOULD BE SUSTAINED. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE FACTS IN THIS CASE ARE IDENTICAL TO THE FACTS IN THE CASE OF M/S AIR INDIA LIMITED (SUPRA). IN THAT CASE ALSO, IN THE INTIMATION UNDE R SECTION 200A, THE ASSESSING OFFICER HAS FOUND THAT THERE WAS DELAY IN PAYMENT OF TDS/SHORT DEDUCTION OF TAX. HE, THEREFORE, CHARGED INTEREST UNDER SECTION 200A. LEARNED CIT(A) DISMISSED THE ASSESSE ES APPEAL WITH THE FOLLOWING FINDING IN THE FIRST PARAGRAPH OF HIS ORDER WHICH IS IDENTICAL TO HIS FINDING IN THE CASE OF M/S AIR IND IA LIMITED:- THE ABOVE APPEALS ARE FILED BY THE APPELLANTS U/S 200A OF THE I.T.ACT IN THE FINANCIAL YEAR 2011-12 AGAINST T HE COMPUTERIZED PROCESSING ORDER OF AO(TDS) WHERE TAX AND INTEREST U/S 200A HAVE BEEN COMPUTED IN THE COMPUTE R FOR SHORT DEDUCTION/SHORT PAYMENT/LATE PAYMENT BY THE APPELLANT. THERE IS NO APPEAL PROVISION U/S 246A O F THE I.T.ACT FOR FILING APPEALS AGAINST ORDER U/S 200A O F THE I.T.ACT. THE APPELLANTS ARE ADVISED TO FILE NECESS ARY CORRECTIONS STATEMENTS BEFORE THE AO(TDS), COORDINA TE AND COOPERATE WITH THE AO AND RECTIFY THE ORDER U/S 200 A/154 OF THE I.T.ACT WITH THE AO AND AFTER RECTIFICATION, PAY THE TAX AND INTEREST IF ANY, AFTER RECTIFICATION. THE AO(TDS) SHOULD GIVE APPEAL EFFECT TO THESE ORDERS WITHIN 2 MONTHS OF RECEIPT OF THE ORDER IMMEDIATELY BY ISSUING NECE SSARY NOTICES U/S 154 OF THE ACT TO THE APPELLANT AND REC TIFYING THE ORDERS AS PER LAW. IF THE RECTIFICATION IS NOT POSSIBLE IN COMPUTER, THE AO SHOULD MANUALLY RECTIFY BY PASSING SUITABLE ORDER IN A FORMAT SO THAT A MASS RECTIFICA TION CAN BE COMPLETED QUICKLY. THE AO(TDS) SHOULD GIVE OPPORTUNITY OF BEING HEARD TO THE APPELLANT BEFORE RECTIFYING THESE ORDERS AND LISTENING TO THE GRIEVA NCES OF THE APPELLANT. ITA NOS.4389 TO 4395/D/2012 4 6. WE HAVE DECIDED THE SAID ISSUE IN THE CASE OF M/ S AIR INDIA LIMITED (SUPRA) WHERE, VIDE ORDER DATED 12 TH OCTOBER, 2012, WE HELD AS UNDER:- 7. AFTER CONSIDERING THE ARGUMENTS OF LEARNED DR A ND ALSO PERUSING THE MATERIAL PLACED BEFORE US, WE ARE OF THE OPINION THAT WHEN IN THE OPINION OF THE CIT(A) THE APPEALS ARE NOT MAINTAINABLE AGAINST THE ORDER UNDER SECTIO N 200A AND THE APPEALS HAVE BEEN DISMISSED BY HIM AS NOT MAINTAINABLE, THERE IS NO QUESTION OF GIVING EFFECT TO THE ORDER OF LEARNED CIT(A). WE, THEREFORE, EXPUNGE TH E DIRECTION OF THE LEARNED CIT(A) THAT AO(TDS) SHOULD GIVE APPEAL EFFECT TO THESE ORDERS WITHIN TWO MONTHS OF THE RECEIPT OF THE ORDER. BUT, AT THE SAME TIME, WE FI ND THAT IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS POINTED OUT THAT THERE WERE CERTAIN MISTAKES COMMITTED BY THE AO(TDS ) WHILE TAKING THE VIEW THAT THERE WAS DELAY IN DEPOS IT OF TDS. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS PO INTED OUT THAT THERE IS NO DELAY IN THE DEPOSIT OF THE TD S BY THE ASSESSEE. IN VIEW OF THE ABOVE, WE ARE OF THE OPIN ION THAT THE PROPER COURSE FOR THE ASSESSEE WOULD HAVE BEEN TO FILE THE RECTIFICATION PETITION UNDER SECTION 154 REQUES TING THE ASSESSING OFFICER TO MODIFY THE ORDER PASSED UNDER SECTION 200A. IT IS NEEDLESS TO MENTION THAT IF THE ASSESS EE WOULD FILE SUCH AN APPLICATION, THE ASSESSING OFFICER IS DUTY BOUND TO DISPOSE OF THE SAME IN ACCORDANCE WITH LAW. 8. IN VIEW OF THE ABOVE, WE UPHOLD THE ORDER OF LEA RNED CIT(A) HOLDING THAT ASSESSEES APPEALS ARE REQUIRED TO BE DISMISSED BEING NOT MAINTAINABLE. WE EXPUNGE THE DIRECTION GIVEN BY HIM WHEREBY HE DIRECTED TO GIVE APPEAL EFFECT TO HIS ORDER BUT, AT THE SAME TIME, WE OBSER VE THAT IF THE ASSESSEE FILES THE APPLICATION UNDER SECTION 15 4 FOR RECTIFICATION OF THE ORDER PASSED UNDER SECTION 201 (1A), THE ASSESSING OFFICER WILL DISPOSE OF THE SAME IN ACCOR DANCE WITH LAW AT AN EARLY DATE. WITH THESE OBSERVATIONS , THE REVENUES APPEALS ARE DEEMED TO BE ALLOWED FOR STAT ISTICAL PROPOSES. 7. SINCE THE FACTS IN THE CASE OF THE ASSESSEE ARE IDENTICAL, RESPECTFULLY FOLLOWING THE ABOVE DECISION OF ITAT A BENCH IN THE CASE OF M/S AIR INDIA LIMITED, WE UPHOLD THE ORDER OF LE ARNED CIT(A) TO THE EXTENT THAT THE APPEALS WERE NOT MAINTAINABLE AGAIN ST THE ORDER UNDER SECTION 200A. HOWEVER, WHEN THE APPEALS ARE NOT MA INTAINABLE, HE ITA NOS.4389 TO 4395/D/2012 5 COULD NOT HAVE ISSUED FURTHER DIRECTION TO THE AO(T DS) FOR GIVING EFFECT TO HIS ORDER. WE, THEREFORE, EXPUNGE THOSE DIRECTI ONS OF THE LEARNED CIT(A). WE REITERATE OUR OBSERVATION IN THE CASE O F M/S AIR INDIA LIMITED THAT THE PROPER COURSE FOR THE ASSESSEE WOU LD HAVE BEEN TO FILE THE RECTIFICATION PETITION UNDER SECTION 154 REQUES TING THE ASSESSING OFFICER TO MODIFY THE ORDER PASSED UNDER SECTION 20 0A. IT IS NEEDLESS TO MENTION THAT IF THE ASSESSEE FILES AN APPLICATIO N UNDER SECTION 154, THE ASSESSING OFFICER WOULD BE DUTY BOUND TO DISPOS E OF THE SAME IN ACCORDANCE WITH LAW. WITH THESE OBSERVATIONS, THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. 8. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE D ISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH, 2013. SD/- SD/- ( (( (RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUD JUDJUD JUDICIAL ICIAL ICIAL ICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 15.03.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S MARUTI SUZUKI INDIA LIMITED, M/S MARUTI SUZUKI INDIA LIMITED, M/S MARUTI SUZUKI INDIA LIMITED, M/S MARUTI SUZUKI INDIA LIMITED, PLOT NO.1, NELSON MANDELA ROAD, PLOT NO.1, NELSON MANDELA ROAD, PLOT NO.1, NELSON MANDELA ROAD, PLOT NO.1, NELSON MANDELA ROAD, VASANT KUNJ, NEW DELHI VASANT KUNJ, NEW DELHI VASANT KUNJ, NEW DELHI VASANT KUNJ, NEW DELHI 110 070. 110 070. 110 070. 110 070. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, TDS CIRCLE TDS CIRCLE TDS CIRCLE TDS CIRCLE- -- -50(1), NEW DELHI. 50(1), NEW DELHI. 50(1), NEW DELHI. 50(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR