DY. CIT- (TDS), RAIPUR (CG) V. SENIOR ACCOUNTS OFFICER, RAIPUR (CG)

ITA 5/BIL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8920 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K JAIN
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE S HRI N.K. BILLAIYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 05 /RPR /20 1 4 ASSESSMENT YEAR: 2009 - 2010 THE DY. COMMISSIONER OF INCOME TAX (TDS), RAIPUR (C.G.) VS. THE SENIOR ACCOUNTS OFF ICER, C.G. STATE POWER HOLDING COMPANY LTD., GUDIYARI, RAIPUR (C.G.) PAN: JBPS02227B (APPELLANT) (RESPONDENT) REVENUE BY : SHRI D.K. JAIN (D R) ASSESSEE BY : SHRI PRAVEEN KHANDELWAL ( A R) DATE OF HEARING: 05/03 /201 8 DATE OF PRONOUNCEMENT: 05/ 03 /201 8 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 07.10.2013 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) RAIPUR WHEREBY THE LD. C IT(A) HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST THE O R DER PASSED BY THE AO U/S 201(1) /201(1A) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) A ND DIRECTED THE ASSESSEE TO FILE THE CORRECTION STATEMENT AFTER OBTAINING THE NECESSARY CONSOLIDATED TDS FILE FROM THE AO. 2. T HE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLLOWING GROUNDS: - 1. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS JUSTIFIED IN DELETING DEMAND OF RS. 2 ITA NO. 05 / RPR/2014 ASSESSMENT YEAR: 2009 - 2010 4,510/ - RAISED U/S 201 (1) OF THE I.T. ACT, 1961, FOR NON DEPOSIT OF TAX. 2. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS JUSTIFIED IN DELETING DEMAND OF RS. 27,38,070/ - RAISED U/S 201 (1) OF THE I.T. ACT, 1961, FOR NON DEPO SIT OF TAX. 3. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS JUSTIFIED IN DELETING DEMAND OF RS. 7,95,400/ - RAISED U/S 201 (1A) OF THE I.T. ACT, 1961, FOR LATE DEPOSIT OF TAX. 4. WHETHER ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS JUSTIFIED IN APPLYING BOARDS INSTRUCTION NO. 5/2013 DATED 08.07.2013 ON THE MATTER ARISING WELL BEFORE THE DATE OF ISSUE OF INSTRUCTION NO. 5/2013. 3. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE RELYI NG ON THE ASSESSMENT ORDER SUBMITTED THAT THE LD. CIT(A) HAS WRONGLY DELETED THE DEMAND OF RS.35,37,980/ - RAISED IN TERMS OF HIS ORDER PASSED U/S 201(1) / 201(1A) OF THE ACT DECLARING THE ASSESSEE AS ASSESSEE IN DEFAULT U/S 201 OF THE ACT FOR SHORT PAYMENT/ NON - PAYMENT OF TDS. SINCE, THE AO HA D IMPOSED THE PENALTY AND LEVIED INTEREST ON THE BASIS OF ENTRIES REPORTED BY THE ASSESSEE AND THE INFORMATION AS PER THE BANK CHALLAN DETAILS, THE LD. CIT(A) OUGHT TO HAVE CONFIRM ED THE ACTION OF THE AO. 4. ON THE OTH ER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A). THE DEMAND HAS BEEN RAISED DUE TO MISMATCH IN CHALLAN AND ENTRIES MADE BY THE ASSESSEE. SINCE, THE ASSESSEE WAS UNABLE TO FILE THE CORRECT ION STATEMENT BEFORE THE AO FOR WANT OF NECESSARY RECORD , THE LD . CIT(A) HAS RIGHTLY DIRECTED THE ASSESSEE TO FILE THE CORRECTION STATEMENT AFTER OBTAINING THE NECESSARY CONSOLIDATED TDS FILES FROM THE AO. T HE LD. C OUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT NOW THE 3 ITA NO. 05 / RPR/2014 ASSESSMENT YEAR: 2009 - 2010 ASSESSEE HAS FILED THE CORRECTION STATEMENT. LD. COUNSEL FILED A COPY OF CORRECTION STATEMENT AND SUBMITTED THAT ORDER GIVING EFFECT TO THE APPELLATE ORDER IS YET TO BE PASSED BY THE AO , HE NCE , NECESSARY DIRECTIONS MAY BE ISSUED TO THE AO TO DETERMINE THE PENALTY/INTEREST TAKING INTO CONSIDERATION THE CORRECTION STATEMENT SUBMITTED BY THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT THE LD. CIT ( A) HAS PASSED THE IMPUGNED ORDER IN ACCORDA NCE WITH THE CBDT INSTRUCTION NO 5/2013 DATED 08.07.2013 ISSUED I N THE .LIGHT OF THE JUDGMENT OF THE HONBLE DELHI HIGH COURT DELIVERED IN COURT ON ITS OWN MOTION VS. UOI AND OTHERS (W.P.(C) 2659/2012&W.P.(C)5443/2012DATED 14.03.2013) ,THE CBDT. THE RELEVAN T PORTION OF THE CBDT INSTRUCTION READS AS UNDER: WHEN AN ASSESSEE APPROACHES THE ASSESSING OFFICER WITH REQUISITE DETAILS AND PARTICULARS IN THE FORM OF TDS CERTIFICATED AS AN EVIDENCE AGAINST ANY MISMATCH AMOUNT, THE SAID ASSESSING OFFICER WILL VERIFY WHETHER OR NOT THE DEDUCTOR HAS MADE PAYMENT OF THE TDS IN THE GOVERNMENT ACCOUNT AND IF THE PAYMENT HAS BEEN MADE, CREDIT OF THE SAME SHOULD BE GIVEN TO THE ASSESSEE. HOWEVER,THE ASSESSING OFFICER IS AT LIBERTY TO ASCERTAIN AND VERIFY THE TRUE AND CORREC T POSITION ABOUT THE TDS CERTIFICATE. SUCH VERIFICATION MAY BE MADE WITH THE RELEVANT AO(TDS). THE AO(TDS) MAY ALSO, IF DEEMED NECESSARY, ISSUE A NOTICE TO THE DEDUCTOR TO COMPEL HIM TO FILE CORRECTION STATEMENT AS PER THE PROCEDURE LAID DOWN; THAT IN THIS REGARD, THE AO (TDS) MAY INVOKE ALL THE POWERS AND AUTHORITY AS AVAILABLE TO HIM /HER AS PER THE INCOME TAX ACT. IF REQUIRED AND NECESSARY, HE/SHE CAN OBTAIN PRIOR APPROVAL OF THE DIRECTOR OR COMMISSIONER TAX. THE AUTHORITIES CAN ALSO EXAMINE WHETHER GENE RAL APPROVAL CAN BE GIVEN. THUS THE MANNER LAID DOWN BY THE HONBLE HC IN THE ABOVE MANDAMUS IS THE METHOD OF DUE VERIFICATION. 6 . SINCE, THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER IN ACCORDANCE WITH THE INSTRUCTIONS OF THE BOARD, WE DO NOT FIND ANY R EASON TO INTERFERE WITH THE SAME. ACCORDINGLY, WE UPHOLD THE FINDINGS OF THE LD CIT(A) AND DIRECT THE AO TO 4 ITA NO. 05 / RPR/2014 ASSESSMENT YEAR: 2009 - 2010 PASS ORDER GIVING EFFECT TO THE APPELLATE ORDER PASSED BY THE LD. CIT(A). WE FURTHER DIRECT THE AO TO VERIFY THE CORRECTION STATEMENT FILED BY THE ASSESSEE WHILE PASSING THE ORDER AND DETERMINE THE PENALTY/INTEREST , IF ANY , ACCORDINGLY. CONSEQUENTLY, WE DISMISS ALL THE GROUNDS OF APPEAL OF THE REVENUE . IN THE RESULT, APPEAL FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2009 - 10 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MARCH, 2018 . SD/ - SD/ - ( N.K. BILLAIYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAIPUR DATED: 05 / 03 / 201 8 ALINDRA PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , RAIPUR / DR, ITAT, RAIPUR 6. / GUARD FILE . / BY ORDER, //TRUE COPY// PRIVATE SECRETARY ITAT, RAIPUR