ASHWINI DHIR, MUMBAI V. DCIT (TDS) 1(1), MUMBAI

ITA 4903/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8765 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 11-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Principle of natural justice
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA N O. 4903 / MUM./2015 ( ASSESSMENT YEAR : 20 1 2 1 3 ) SHRI ASHWINI DHIR 1301, RUSTOMJEES OZONE TOWER NO. 05, BEHIND TELE EXCHANGE OFF S.V. ROAD, GOREGAON (W) MUMBAI 400062 PAN ADVPD4582A . APPELLANT V/S DY . COMMISSIONER OF INCOME TAX TDS 1 (1), MUMBAI . RESPONDENT APPELLANT BY : SHR I ASHOK MEHTA RESPONDENT BY : S HRI RAJESH KUMAR YADAV DATE OF HEARING 11 .10 .201 7 DATE OF ORDER 31.10.2017 O R D E R PER SAKTIJIT DEY, J.M. AFORESAID APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 05.06.2015 OF LEARNED COMMISSIONER OF INCOME TAX (A PPEALS ), MUMBAI 59 , FOR ASSESSMENT Y EAR . 2012 13. 2 . BRIEFLY THE FACTS ARE, THE ASSESSEE, AN INDIVIDUAL, IS ENGAGED IN THE ACTIVITY OF SCRIPTS AND SERIAL WRITER AND PRODUCER. THE ASSESSING OFFICER WHILE VERIFYING THE ACCOUNTS OF THE ASSESSEE HAVING NOTICED THAT 2 SHRI ASHWINI DHIR ASSESSEE HAD DEBITED CERTAIN EXPENDIT URE S WHICH ARE SUBJECT TO TDS PROVISION BUT THE ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE WHILE MAKING SUCH PAYMENTS , ISSUED A SHOW CAUSE NOTICE UNDER SECTION 201(1) AND 201(1 A ) OF THE ACT ON 21.03.2014. IN RESPONSE TO THE SAID NOTICE , ASSESSEE FURNISHED HI S REPLY STATING THEREIN THAT CERTAIN PAYMENTS A RE TOWARDS REIMBURSEMENT OF EXPENSES INCURRED BY THE PAYEES , HENCE , TDS PROVISIONS ARE NOT APPLICABLE. IN RESPECT OF OTHER PAYMENTS ASSESSEE STATED TO HAVE DEDUCTED TAX AT SOURCE. THE ASSESSING OFFICER, HOWEVER , DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND ALLEGING SHORT DEDUCTION OF TAX AT SOURCE UNDER SECTION 194J ON PAYMENTS FOR SERIAL EXPENSES, SET DESIGNING EXPENSES AND SHOOTING EXPENSES THE ASSESSING OFFICER PASSED AN ORDER TREATING THE ASSESS EE AS AN ASSESSEE IN DEFAULT UNDER SECTION 201(1) AND RAISED A DEMAND OF ` 1,23,09,870/ UNDER SECTION 201(1) AND LEVIED INTEREST OF ` 44,31,553/ UNDER SECTION 201(1A) OF THE ACT. ASSESSEE CHALLENGED THE AFORESAID ORDER PASSED BY ASSESSING OFFICER BEFORE THE COMMISSIONER (A PPEALS ). AS OBSERVED BY THE LEARNED COMMSSIONER (A PPEALS ) IN THE IMPUGNED ORDER , IN SPITE OF REPEATED OPPORTUNITY BEING GIVEN TO THE ASSESSEE NO ONE APPEARED ON BEHALF OF THE ASSESSEE FOR HEARING OF THE APPEAL. I NSTEAD, ADJOURNMENTS WERE SOUGHT REPEATEDLY BY DIFFERENT SET OF CHARTERED ACCOUNTANTS WHO EVEN DID NOT HAVE VALID POWER OF ATTORNEY EXECUTED IN FAVOUR OF THEM BY THE 3 SHRI ASHWINI DHIR ASSESSEE. THEREFORE, LEARNED COMMISSIONER (A PPEALS ) PROCEEDED TO DISPOSE OF ASSESSEES APP EAL EX PARTE BY UPHOLDING THE ORDER PASSED UNDER SECTION 201(1)/201(1A) OF THE ACT. 3 . WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS ON RECORD. THE SHORT SUBMISSION MADE BEFORE US ON BEHALF OF THE ASSESSEE IS, ONE MORE OPPORTUNITY MAY BE EXTENDE D TO THE ASSESSEE TO REPRESENT H IS CASE ON MERITS BEFORE THE COMMISSIONER (A PPEALS ). AS COULD BE SEEN, LEARNED COMMISSIONER (A PPEALS ) HAS DISPOSED OFF ASSESSEES APPEAL EX PARTE , SINCE , REPEATED ADJOURNMENTS WERE SOUGHT AND NO ONE APPEARED TO AR GUE THE APP EAL ON MERITS. HE HAS ALSO ALLEGED THAT CHARTERED ACCOUNTANTS WHO SOUGHT ADJOURNMENT ON BEHALF OF THE ASSESSEE WERE ALSO NOT DULY AUTHORISED BY THE ASSESSEE. HOWEVER, CONSIDERING THE SUBMISSIONS OF THE LEARNED A.R. AND ALSO KEEPING IN VIEW THE PRINCIPLE S OF NATURAL JUSTICE , WE ARE INCLINED TO GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, CONSIDERING THE FACT THAT THE ASSESSEE WAS NOT TOO DILIGENT IN PURSUING HIS APPEAL BEFORE THE COMMISSION ER (A PPEALS ) , WE DIRECT THE ASSESSEE TO PAY COST OF ` 10,000/ FOR RESTORAT ION OF HIS APPEAL BEFORE THE COMMISSIONER (A PPEALS). THE AFORESAID COST OF ` 10,000/ SHOULD BE DEPOSITED BY THE ASSESSEE IN PRIME MINISTERS RELIEF FUND WITH IN SEVEN DAYS FROM THE RE CEIPT OF THIS ORDER. ON FURNISHING THE PROOF OF PAYMENT OF ` 10,000/ 4 SHRI ASHWINI DHIR AS DIRECTED ABOVE, ASSESSEES APPEAL WILL BE TAKEN UP FOR HEARING BY THE COMMISSIONER (A PPEALS ). COMMISSIONER (APPEALS) MUST GIVE REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE DECIDING THE APPEAL. WE ALSO DIRECT THE ASSESSEE TO COMPLY TO THE NOTICE OF HEARING TO BE ISSUED BY THE COMMISSIONER (APPEALS) AND COOPERATE IN FINALISATION OF THE PROCEEDINGS. WITH THE AFORESAID OBSERVATION GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 4 . I N THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 31.10.2017 SD/ - G.S. PANNU ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMB AI, DATED: 31.10.2017 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER N. PANICKER SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI