ITO (TDS), Moradabad V. M/s. U.P. Nigam Raebareilly Construction Div-Ist, Raebareilly

ITA 4648/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74130 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NIDHI SRIVASTVA
• Section: 201(1)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI SHAMI M YAHYA , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER I TA NO. 4648/ DEL/ 2013 (ASSESSMENT YEAR: 2009 - 10 ) ITO (TDS) MORADABAD VS. U.P. NIGAM RAEBAREILLY CONSTRUCTION DIV.1 ST , RAEBAREILLY PAN LKNE05240E (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY: SMT. NIDHI SRIVASTVA, SR. DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A), BAREILLY DATED 01.05.2013 FOR ASSESSMENT YEAR 2009 - 10. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS FOLLOWS: - 1. THE LD. CIT(APPEAL), BAREILLY HAS ERRED IN FACTS AND LAW BY QUASHING THE ORDER OF THE ITO (TDS) MORADABAD ON THE GROUND THAT HE HAS HAD NO TERRITORIAL JURISDICTION OVER THE ASSESSEE. TAN OF THE DEDUCTOR WAS LYING ON THE CODE OF JCIT(TDS) BAREILLY AND ITO ( TDS) MORADABAD WHO PASSED THE ORDER IN THIS CASE HAD CONTERMINOUS JURISDICTION WITH HIM. THE ORDERS ARE PASSED ONLINE ON THE ITD APPLICATION, AND ONLY THE PERSON HAVING TAN ON HIS CODE CAN PASS SUCH ORDER. 2. WHILE DOING SO THE LD CIT(A) HAS ERRED FURTHER IN OVERLOOKING THE FACT THAT ORDER U/S 201(1) WAS PRINTED OUT OF THE SYSTEM (AUTOMATIC ITS SOFTWARE) AND ONCE ORDER IS PROCESSED BY COMPUTERIZED SYSTEM, THE A.O. HAS NO OPTION BUT TO SIGN IT AND SEND TO THE DEDUCTOR. 3. WHILE DOING SO IN (1) ABOVE THE LD CIT(A) HAS FURTHER ERRED IN OVER LOOKING THE FACT THAT NO ORDER ON THIS IS PASSED BY ANY OTHER A.O. AND THE SHORTFALL IN TDS WAS THEREFORE RIGHTLY BROUGHT TO TAX BY ITO (TDS) MORADABAD. 4. THAT THE APPLICANT CRAVES LEAVE TO AMEND ANY ONE OR MORE OF THE G ROUNDS OF APPEAL AS STATED ABOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 3. APROPOS THE QUASHING OF THE ORDER OF THE ITO (TDS) MORADABAD ON THE GROUND THAT HE HAD NO TERRITORIAL JURISDICTION OVER THE ASSESSEE. PAGE NO. 2 4. THE ITO (TDS) MORADABAD/ BAREILLY NOTICE D ON A N ANALYSIS OF THE ASSESSEES TDS STATEMENT ON THE BASIS OF ENTRIES REPORTED BY THE ASSESSEE WITH THE INFORMATION AVAILABLE AS PER BANK CHALLAN DETAILS REVEALED THAT DEFAULT HAS TAKEN PLACE ON THE PART OF THE ASSESSEE IN NON - REMITTANCE OF CERTAIN AMOUNT DEDUCTED BY THE ASSESSEE. AFTER SERVING SHOW - CAUSE NOTICE UNDER 201(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER THE ACT) TO THE ASSESSEE AND THE ASSESSEE WAS ADVISED BY THE ASSESSING OFFICER TO FILE CORRECTION STATEMENT TO RECTIFY THE DATA ENTRY ERRORS. THEREAFTER, THE ITO(TDS), BAREILLY FOUND AND DECLARED THE ASSESSEE TO BE A N ASSESSEE IN DEFAULT IN RESPECT TO TOTAL TAX LIABILITY OF RS. 6,83,120/ - . 5. AGGRIEVED BY THE SAID ORDER OF THE ITO (TDS) BAREILLY / MORADABAD , THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE LD CIT(A) WHO WAS PLEASED TO QUASH THE SAID ORDER OF THE ITO (TDS), BAREILLY /MORADABAD ON THE GROUND THAT ITO (TDS) BAREILLY /MORADABAD DOES NOT HAVE THE TERRITORIAL JURISDICTION TO PASS SUCH AN ORDER IN THE CASE OF THE ASSESSEE. AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A) THE REVENUE IS BEFORE US. 6. THE LD DR CONTENDED THAT THE ORDER DATED 16.03.2011 OF THE ITO(TDS ) BAREILLY WAS PASSED U/S 201(1)/ 201(1A) WHICH WAS GENERATED BY ITD SYSTEM IN THIS CASE AND THE DEMAND OF RS. 6,83,120/ - WAS GENERATED BY THE SYSTEM DUE TO SHORT PAYMENT OF RS. 4,08,840/ - . ACCORDING TO THE LD DR THE TAN OF THE DEDUCTOR (ASSESSEE) WAS LYING ON THE CODE OF (JCIT)(TDS) BAREILLY & INCOME TAX OFFICE (TDS), MORADABAD, WHO PASSED THE ORDER IN THIS CASE HAD CO - TERMINUS JURISDICTION AND AT THE TIME OF FILING OF RETURN AND CREATION OF DEMAND THE JURISDICTION OVER THE CASE WAS WITH THE OFFICE OF JCIT(TDS), BAREILLY AND HENCE THE FINDING OF THE LD CIT(A) IS NOT IN CONFORMITY TO THE ACT AND THEREFORE LD CIT(A)S ORDER NEED TO BE STRUCK DOWN. 7. NONE APPEARED FOR THE ASSESSEE. THE STATEMENT MADE BY THE LD DR IS CONSIDERED AND WE HAVE PERUSED THE RECORDS CAREFULLY. FROM THE PERUSAL OF THE RECORDS, IT IS NOTICED THAT THE ADDRESS OF THE ASSE SSEE PERTAIN TO DISTRICT RAEBAREILLY AND THE ASSESSEE IN THE GROUNDS OF APPEAL BEFORE THE LD CIT(A), CLAIMED THAT THE ASSESSEES JURISDICTION IS WITH ITO (TDS) FAIZABAD. WE FIND THAT THE LD CIT(A) HAD CAREFULLY GONE INTO THE JURISDICTION ISSUE RAISED BY TH E ASSESSEE BEFORE HIM AND IN ORDER TO ASCERTAIN THE JURISDICTION HAD BY A N ORDER DATED 23.112012 SOUGHT THE QUESTION OF JURISDICTION BEFORE THE JCIT (TDS) BAREILLY AND REQUESTED HIM TO FORWARD THE COPY OF THE ORDER WHEREIN THE JURISDICTION ENJOYED BY THE I TO (TDS), BAREILLY AND MORADABAD IS LAID DOWN AND LD CIT(A) ALSO FORWARD THE NAME AND ADDRESS OF THE PAGE NO. 3 ASSESSEE ALSO TO THE SAID ITO (TDS) BAREILLY . IT WAS SPECIFICALLY STATED IN THE SAID LETTER THAT THE ADDRESS OF THE AS SESSEE PERTAINS TO RAEBAREILLY. T HE JCIT(TDS) ( BAREILLY ) FORWARDED VIDE LETTER DATED 30.11.2012 THE COPY OF THE CCIT, BAREILLY ORDER DATED 23.11.2011 ISSUED IN EXERCISE OF THE POWERS CONFERRED UNDER SUB - SECTION (1) & (2) OF SECTION 120 OF THE ACT AND IN CONCURRENCE WITH THE CBDT REGARDING TE RRITORIAL JURISDICTION OF ITO(TDS), BAREILLY/ MORADABAD AND IN RESPECT OF OTHER ITOS IN CHARGE BAREILLY/ MORADABAD. AFTER A CAREFUL PERUSAL OF THE SAID ORDER REGARDIN G THE JURISDIC TION OF ITO (TDS), BAREILLY/ MORADABAD , THE LD CIT(A) COULD NOT FIND THE ASS ESSEES ADDRESS WHICH IS SITUATED IN RAEBAREILLY IN THE TERRITORY PRESCRIBED UNDER THE ITO (TDS) BAREILLY/MORADABAD . THUS THE LD CIT(A) MADE A FINDING THAT THE ASSESSEES ADDRESS DOES NOT FALL IN THE TERRITORIAL LIMITS OF THE ITO (TDS) BAREILLY/ MORADABAD. IN THE SAID CIRCUMSTANCES LEFT WITH NO OPTION THE CIT(A) RIGHTLY QUASHED THE ORDER OF THE ITO (TDS) , BAREILLY . THE LD DR COULD NOT POINT OUT FROM THE ORDER OF THE CCIT BAREILLY AS TO WHET HER THE ADDRESS OF THE ASSESSEE FALLS WITH IN THE TERRITORIAL JURISDICTION OF ITO (TDS), BAREILLY/ MORADABAD. MERELY BECAUSE THE TAN OF THE ASSESSEE HAPPENED TO BE IN THE COMPUTER SYSTEM OF THE ITO, DOES NOT CONFER JURISDICTION AND ASSUMPTION OF JURISDICTIO N IS CLEARLY ILLEGAL AND THEREFORE ITO BAREILLY/MORADABAD IS QUA RUM - NON - JUDICE IN THIS MATTER . THEREFORE WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD CIT(A) AND CONFIRM THE SAME. 8. IN RESULT THE INSTANT APPEAL IS DEVOID OF MERITS AND THEREFORE IT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 .01.2014. - S D / - - S D / - ( SHAMIM YAHYA ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 3 1 /01 /2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI