V LINK FLEET SOLUTIONS P. LTD, MUMBAI V. ITO TDS CIR 3(5), MUMBAI

ITA 4688/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4052 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 20-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' F ' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 4688 /MUM/201 4 (ASSESSMENT YEAR: 2008 - 09 ) M/S. V LINK FLEET SOLUTIONS P. LTD . VS. INCOME TAX OFFICER (TDS) 128, IJMIMA, RAHEJA METROPLEX OFF LINK ROAD, MALAD (W) MUMBAI 4000 64 CIRCLE - 3(5) 10 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG. CHARNI ROAD, MUMBAI 400002 PAN - AACCV3809R APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI ANIL KUMAR DAS DATE OF HEARING: 20 .04 .2016 DATE OF PRONOUNCEMENT: 22 .0 4 .2016 O R D E R PER JASON P. BOAZ, A.M . THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 16 , MUMBAI DATED 04 . 04.2014 FOR A.Y. 2008 - 09 (24Q FOR QUARTER 4) . 2 . THE FACTS OF THE CASE, IN BRIEF, ARE AS UNDER: - 2.1 THE ASSESSEE - COMPANY FILED ITS QUARTERLY TDS RETURN IN FORM 24Q FOR THE 4 TH QUARTER OF FINANCIAL YEAR 2007 - 08. IN THIS CASE, THE ASSESSING OFFICER (AO) VIDE ORDER UNDER SECTION 201(1)/ 201( 1A) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') DATED 08.01.2011 HAS RAISED A DEMAND OF ` 31,58,160/ - IN VIEW OF THE FACT THAT THE ASSESSEE FA ILED TO CORRECT THE QUARTERLY E - TDS RETURN FILED ON BEING AFFORDED AN OPPORTUNITY TO DO SO BY THE AO VIDE SHOW CAUSE NOTICE DATED 07.12.2010. 2.2 AGGRIEVED BY THE ORDER UNDER SECTION 201(1)/201(1A) DATED 08.01.2011 FOR A.Y. 2008 - 09, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) - 16, MUMBAI. DUE TO NON - ATTENDANCE OF THE ASSESSEE BEFORE THE LEARNED CIT(A) IN THE OPPORTUNITIES AFFORDED TO IT IN THE APPELLATE ITA NO. 4688 /MUM/2014 M/S. V LINK FLEET SOLUTIONS P. LTD. 2 PROCEEDINGS, THE LEARNED CIT(A) WAS CONSTRAINED TO DISPOSE OFF THE ASSESSEES APPEAL EXPARTE ON THE BASIS OF THE MATERIAL ON RECORD. AFTER CONSIDERING THE ASSESSEES SUBMISSIONS IN THE STATEMENT OF FACTS, AND THE MATERIAL ON RECORD, THE LEARNED CIT(A) DISMISSED THE ASSESSEES APPEAL VIDE THE IMPUGNED ORDER DATED 04.04.2014. 3 . AGGRIEVED BY THE ORDER OF THE CIT(A) - 16, MUMBAI DATED 04.04.2014 FOR A.Y. 2008 - 09, THE ASSESSEE HAS PREFERRED THIS APPEAL RAISING THE FOLLO WING GROUNDS: - 1. THE LD. CIT (A PPEALS ) ERRED IN CONFIRMING THE DEMAND OF RS.31,58,160/ - COMPRISING SHORT DEDUCTION OF TAX AT SOURCE, NON - PAYMENT OF TAX COLLECTED AT SOURCE AND INTEREST THEREON. 2. THE LD. CIT (APPEALS) IN DISMISSING THE APPEAL DID NOT APPRECIATE THAT NOTICE FIXING THE HEARING OF APPEAL ON 06.03.2014 OUGHT TO HAVE BEEN FORWARDED TO THE APPELLANT AT CHANGED ADDRESS. 3. THE LD. CIT (APPEALS) IN ANY EVENT OUGHT TO HAVE GIVEN ONE MORE OPPORTUNITY IN THE CIRCUMSTANCES. 4 . IN THE PRESENT APPEAL, INSPITE OF AFFORDING THE ASSESSEE AT LEAST FIVE OPPORTUNITIES, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. EVEN ISSUE OF NOTICE FOR HEARING BY RPAD DID NOT ELICIT COMPLIANCE FROM THE ASSESSEE. TODAY, I.E. ON 20.04.2016, WHEN THE CASE WAS CALLED FOR HEARIN G, NONE WAS PRESENT FOR THE ASSESSEE BUT THE LEARNED D.R. FOR REVENUE WAS PRESENT. IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL SERIOUSLY. AS PER THE RECORDS, WE FIND THAT EVEN BEFORE T HE LEARNED CIT(A) ALSO NONE WAS PRESENT FOR THE ASSESSEE IN APPELLATE PROCEEDINGS. FURTHER, EVEN WHEN ON THE ASSESSEES REQUEST COPIES OF THE APPEAL PAPERS WERE MADE AVAILABLE TO THE ASSESSEE BY THE LEARNED CIT(A), THE ASSESSEE FAILED TO AVAIL THE OPPORTUN ITY OF HEARING GRANTED THEREAFTER BY THE LEARNED CIT(A). IN THESE FACTUAL CIRCUMSTANCES, WE PROCEED TO DISPOSE OFF THIS APPEAL WITH THE ASSISTANCE OF THE LEARNED D.R. FOR REVENUE AND THE MATERIAL ON RECORD. 5 . GROUND NO. 1 5.1 IN THIS GROUND, THE ASSESSEE CONTENDS THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE DEMAND OF ` 31,58,160/ - COMPRISING OF SHORT DEDUCTION OF TAX AT SOURCE, NON - PAYMENT OF TAX COLLECTED AT SOURCE AND INTEREST THEREON. ITA NO. 4688 /MUM/2014 M/S. V LINK FLEET SOLUTIONS P. LTD. 3 5.2 THE LEARNED D.R. SUPPORTED THE IM PUGNED ORDER OF THE LEARNED CIT(A), WHEREIN THE LEARNED CIT(A) RENDERED THE FINDINGS DISMISSING THE ASSESSEES APPEAL AFTER CONSIDERING THE AOS ORDER, THE STATEMENT OF FACTS FILED BY THE ASSESSEE AND OTHER MATERIAL ON RECORD. IT IS PRAYED THAT THE ASSESSE ES APPEAL ON THIS ISSUE BE DISMISSED AS THE ASSESSEE HAS F A ILED TO BRING ON RECORD ANY MATERIAL EVIDENCE TO CONTROVERT THE FINDINGS OF THE AO. 5.3.1 WE HAVE HEARD THE LEARNED D.R. FOR REVENUE AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. THE AO IN HIS ORDER UNDER SECTION 201(1)/201(1A) OF THE ACT DATED 08.01.2011 HAS ADJUDICATED THE MATTER AS UNDER: - IN THIS CASE QUARTERLY TDS RETURN FOR Q1,Q2,Q3,Q4 FOR FINANCIAL YEAR 2007 - 08 WAS FILED BY THE ASSESSEE IN FORM 24Q/26Q. THESE RETURNS WERE PROC ESSED BY THE DEPARTMENT. ON PROCESSING OF SAID RETURN FOLLOWING DEFAULT HAVE BEEN FOUND U/S 201(1)/201(1A) OF THE INCOME TAX ACT. 1961. S. NO. FORM NO. QUARTER SHORT D EDUCTIO N / C OLLECTION AMOUNT DEDUCTED/ COLLECTED BUT NOT PAID INTEREST PAYABLE TOTAL AMOUNT OF DEFAULT 1 24Q Q4 10270 1256530 5720 1272520 2 26Q Q1 11570 435770 7730 455070 3 26Q Q2 0 284970 15050 300020 4 26Q Q3 0 242850 2890 245740 5 26Q Q4 810 86700 15480 102990 TOTAL TAX & INTEREST PAYABLE 2376340 THE AFORESAID DEFAULTS WERE COMMUNICATED TO THE ASSESSEE VIDE SHOW CAUSE NOTICE DATED 7.12.2010 REQUIRING TO FILE CORRECTION RETURN IF THE DEFAULT WAS DUE TO ERROR IN DATA ENTRY OTHERWISE PAY THE AMOUNT OF DEFAULT. ON VERIFICATION, IT APPEARS THAT ASSESSEE HAS NOT CORRECTED BY FILING 'CORRECTION STATEMENT' WITH THE TAX INFORMATION NETWORK FACILITATION CENTER (TIN - FC) IN RESPECT OF THE AFORESAID DEFAULT. I AM, THEREFORE INCLINED TO INFER THAT THE ASSESSEE HAS COMMITTED DEFAULT WITHIN THE MEANING OF SECT 201(1) OF I.T ACT, 1961. IN THE LIGHT OF ABOVE FACTS THE ASSESSEE IS TREATED AS DEFAULTER WITHIN THE MEANING OF SECT 201(1)/201(1A) FOR THE DEFAULTS MENTIONED ABOVE. ACCORDINGLY, THIS ORDER U/S. 201(1)/201(1A) COMPUTING THE TOTAL AMOUNT OF DEFAULT AS ON DATE IS COMPUTED AT ` 31,58,160/ - F OR 4 TH QUARTER OF 24Q OF THE FINANCIAL YEAR 2007 - 08. COMPUTATION OF THE TOTAL AMOUNT OF DEFAULT IS AS UNDER ITA NO. 4688 /MUM/2014 M/S. V LINK FLEET SOLUTIONS P. LTD. 4 S. NO. FORM NO. QTR. SHORT DEDUCTION/ COLLECTION INTEREST ON SHORT DEDUCTI ON AMOUNT DEDUCTED/ COLLECTED BUT NOT PAID INTEREST ON SHORT PAYMENT INTEREST PAYABLE TILL DUE DATE TO LATE DEPOSIT OF TAX TOTAL DEFAULT 1 24Q 4 10270 3590 2242950 895480 5870 3158160 5.3.2 THE LEARNED CIT(A) IN THE IMPUGNED ORDER HAS HELD AS UNDER: - 1.2 NO BODY HAS REPRESENTED THIS APPEAL. NOTICES FOR HEARING AS FOLLOWS WERE ISSUED TO THE APPELLANT. DATE OF ISSUE OF NOTICE DATE FIXED FOR HEARING AS PER NOTICE/AS PER ADJOURNMENT GRANTED REMARKS/ COMPLIANCE 23/12/2013 31/12/2013 NONE ATTENDED 19/02/2014 06/03/2014 NONE ATTENDED VIDE LETTER DATED 07/03/2014, THE APPELLANT STATED THAT THEY HAVE MISPLACED THE SET OF APPEAL PAPERS AS THEY HAVE SHIFTED THEIR OFFICE AND REQUESTED TO PROVIDE THEM WITH FORM NO. 33, STATEMENT OF FACTS, GROUNDS OF APPEAL AND THE ASSESSMENT ORDER AGAINST WH ICH APPEAL FILED. THE SAID DOCUMENTS WERE GIVEN TO THE APPELLANT COMPANY AND A FINAL OPPORTUNITY OF HEARING WAS GRANTED TO THE APPELLANT ON 24/03/2014. HOWEVER, ON THE APPOINTED DATE NONE ATTENDED. 2. THE GROUNDS OF APPEAL: 'GROUND NO.1 '1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE INCOME TAX OFFICER (TDS) - 3 (5) ('AO') ERRED IN TREATING THE APPELLANT AS ASSESSEE IN DEFAULT U/S. 201 (1)/201(1A) OF THE INCOME TAX ACT, 1962 ('THE ACT') ON THE ALLEGED GROUND THAT THE APPELLANT HAD FAILED TO MA KE CORRECTIONS IN THE QUARTERLY E - TDS RETURN FOR 24Q - 4. 2 . THE ITO ERRED IN TREATING THE APPELLANT TO BE IN DEFAULT U/S. 201/201 (1A) OF THE INCOME TAX ACT, 1961. 3 . THE ITO HAS ACCORDINGLY ERRED IN RAISING A DEMAND OF ` 32,58,160/ - . 4 . THE ITO IN RAISING THE DEMAND AS ABOVE DID NOT PASS ANY SPEAKING ORDER. 5 . THE ITO IN ANY EVENT DID NOT ALLOW ANY OPPORTUNITY LET ALONE REASONABLE OPPORTUNITY TO THE APPELLANT TO PROVE ITS CASE. YOUR APPELLANT THEREFORE SUBMITS THAT THE DEMAND OF ` 31,58,160/ - BE QUASHED PR A SUITABLE REL IEF BE GIVEN. ITA NO. 4688 /MUM/2014 M/S. V LINK FLEET SOLUTIONS P. LTD. 5 GROUND NO. II YOUR APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND / OR AMEND ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL.' 2.1. IN THE STATEMENT OF FACTS FILED WITH THE APPEAL MEMORANDUM, IT IS STATED THAT THE AO REQUIRED THE APPELLANT TO FURNISH THE DETAILS OF THE PAYMENT FOR THE FINANCIAL YEAR UNDER APPEAL AND ALSO CALLED UPON TO CORRECT THE SAID RETURNS WHICH DID NOT GIVE THE REQUIRED PARTICULARS WHEN SUCH QUARTERLY RETURNS IN 24Q - 4 WERE FILED. THAT THE SHOW CAUSE NOTICE ISSUED BY THE AO WAS IN A ROUTINE MANNER AND DID NOT SPECIFY THE TYPE OF DEFAULT OR MISMATCH IN DATA FILED IN THE RETURN OF TDS. THAT THE AO WITHOUT HAVING REGARD TO THE NATURE OF ENQUIRY AND WITHOUT AFFORDING ANY FURTHER OPPORTUNITY HAS TREATED THE APPELLANT TO BE ASS ESSEE IN DEFAULT FOR PAYMENT OF TAXES. 2.2 THE APPELLANT CLAIMS THAT NO OPPORTUNITY WAS PROVIDED BY THE AO, HOWEVER IT IS NOTED THAT EVEN IN APPEAL PROCEEDINGS, THE APPELLANT FAILED TO FILE ITS SUBMISSIONS AFTER BEING AFFORDED AMPLE OPPORTUNITIES. SINCE TH E APPELLANT HAS NOT CARED TO FILE ANY DETAILS/SUBMISSION IN RESPECT OF THE GROUNDS TAKEN, IT IS PRESUMED THAT THE APPELLANT HAS NOTHING TO STATE. ACCORDINGLY THE AO'S ACTION IS CONFIRMED. 5.3.3 BEFORE US ALSO THE ASSESSEE HAS NEITHER APPEARED FOR HEARING NOR BROUGHT ON RECORD ANY MATERIAL EVIDENCE TO CONTROVERT THE FINDINGS OF THE AUTHORITIES BELOW (SUPRA). IN THESE CIRCUMSTANCES OF THE CASE, AS DISCUSSED ABOVE, WE ARE CONSTRAINED TO UPHOLD THE ORDER OF THE AUTHORITIES BELOW ON THIS ISSUE AND CONSEQUENTLY DISMISS GROUND NO. 1 RAISED BY THE ASSESSEE. 6 . GROUND NO. 2 & 3 6.1 IN GROUND NO. 2 , THE ASSESSEE CONTENDS THAT THE LEARNED CIT(A) OUGHT TO HAVE SENT THE NOTICE FIXING THE H EARING ON 06.03.2014 TO THE ASSESSEE AT ITS CHANGED ADDRESS. ON AN APPRECIATION OF THE FACTS ON RECORD, WE FIND THAT THE ASSESSEE, VIDE LETTER DATED 07.03.2014, HAD WRITTEN TO THE LEARNED CIT(A) ASKING FOR COPIES OF FORM NO. 35, STATEMENT OF FA CTS, GROUNDS OF APPEAL AND THE ORDER OF ASSESSMENT SINCE THE SAME WERE MISPLACED WHEN SHIFTING OF THE ASSESSEES OFFICE. THE LEARNED CIT(A) RECORDS THAT THE SAME WAS GIVEN TO THE ASSESSEE. OBVIOUSLY, SINCE NO ONE APPEARED BEFORE THE LEARNED CIT(A) IN APPEL LATE PROCEEDINGS, THESE DETAILS SOUGHT FOR WOULD HAVE BEEN SENT TO THE ASSESSEE BY POST AT THE ADDRESS GIVEN BY THE ASSESSEE IN ITS LETTER DATED 07.03.2014. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THE ASSESSEE HAD INFORMED THE LEARNED CIT(A) OF ITS CHANGE OF ITA NO. 4688 /MUM/2014 M/S. V LINK FLEET SOLUTIONS P. LTD. 6 ADDRESS PRIOR TO ITS LETTER DATED 07.03.2014. THIS GROUND NO. 2 OF THE ASSESSEE , BEING BEREFT OF ANY MERIT , IS ACCORDINGLY DISMISSED. 6.2 IN GROUND NO. 3 , THE ASSESSEE SUBMITS THAT IN ANY EVENT, THE ASSESSEE OUGHT TO HAVE BEEN ALLOWED ONE MORE OPPO RTUNITY OF BEING HEARD. ON A PERUSAL OF THE IMPUGNED ORDER AT PARA 1.2 THEREOF, WE FIND THAT IN FACT THE LEARNED CIT(A) HAS GRANTED A FURTHER FINAL OPPORTUNITY OF BEING HEARD IN APPELLATE PROCEEDINGS BEFORE HER ON 24.03.2014. IT IS, RECORDED BY THE LEARNED CIT(A) IN THIS REGARD THAT ON THE APPOINTED DATE NONE ATTENDED. IN THIS FACTUAL MATRIX THE ASSESSEES GRIEVANCE THAT IT OUGHT TO HAVE BEEN ALLOWED ONE MORE OPPORTUNITY OF BEING HEARD HAS BEEN MET. CONSEQUENTLY, FINDING NO MERIT IN THIS GROUND NO. 3 RAISED BY THE ASSESSEE, WE DISMISS THE SAME. 7 . IN THE RESULT, THE ASSESSEES APPEAL FOR A.Y. 2008 - 09 IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND APRIL , 2016 . SD/ - SD/ - ( SANDEEP GOSAIN ) ( JASON P. BOAZ ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 22 ND APRIL , 2016 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 16 , MUMBAI 4 . THE CIT (TDS) , MUMBAI 5 . THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.