ACIT, New Delhi V. M/s. HCL Comnet Ltd., New Delhi

ITA 5053/DEL/2012

• Counselvise Citation: 505320114 RSA 2012
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 26-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Keywords: Opportunity of being heard
• Section: 201(1); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A.NOS.5052 & 5053/DEL/2012 ASSESSMENT YEARS : 2010-011 & 2011-12 ASSTT. COMMISSIONER OF INCOME-TAX, M/S. HCL COMNE T LTD., CIRCLE-50(1), NEW DELHI. VS. 806, SIDDHARTH, 96, NEHRU PLACE, NEW DELHI. PAN: AAACH9667H. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SATPAL SING H, SR. DR. RESPONDENT BY : NONE. O R D E R PER DIVA SINGH, JUDICIAL MEMBER THESE ARE TWO APPEALS FILED BY THE REVENUE AGAINST THE ORDERS DATED 25-05-2012 & 27-07-2012 OF THE COMMISSIONER OF INCOME-TAX (AP PEALS)-XXX, NEW DELHI PERTAINING TO THE ASSESSMENT YEARS 2010-11 & 2011-1 2 ON THE FOLLOWING COMMON GROUNDS:- 1) THE ORDER OF LD. CIT(A) IS PERVERSE AND ERRONEO US ON THE FACTS AND CIRCUMSTANCES OF THE CASE. THE CIT(A) ON THE ONE H AND HAS DISMISSED THE APPEAL OF THE DEDUCTOR ASSESSEE BY HOLDING THAT THE ORDER PASSED BY THE ASSESSING OFFICER U/S 200A OF THE INCOME-TAX ACT, 1 961 IS NOT APPEALABLE U/S 246A OF THE INCOME-TAX ACT, 1961 AND ON THE OTH ER HAND HAS GIVEN DIRECTION TO THE ASSESSING OFFICER TO TAKE CORRECT ACTION TO RECTIFY THE MISTAKE IN THE ORDER WITHIN TWO MONTHS EITHER THROU GH THE ITD SYSTEM OR MANUALLY. 2) THE LD. CIT(A) HAS OVERREACHED HIS JURISDICTION IN ISSUING DIRECTION TO THE ASSESSING OFFICER IN A NON-EST APPEAL. 3) THE LD. CIT(A) HAS ALSO ERRED IN FIXING THE TIME LIMIT OF TWO MONTHS FOR RECTIFICATION OF THE ORDER PASSED BY THE ASSESSING OFFICER U/S 200A OF THE INCOME-TAX ACT, 1961 AND DIRECTING HIM TO DO CORREC TION MANUALLY. THE ITA NOS.5052 & 5053/DEL/2012 2 PROVISIONS OF THE INCOME TAX ACT, 1961 DO NOT PERMI T THE ASSESSING OFFICER TO MAKE ANY CORRECTION IN THE E-TDS RETURNS FILED BY THE DEDUCTOR ASSESSEE AS HE HAS BEEN PROVIDED WITH VERY LIMITED POWERS TO MODIFY THE DATA IN THE E-TDS RETURNS TO WHICH THE DEDUCTOR ASS ESSEE IS NOT AUTHORIZED AND WHICH ALSO NEEDS VERIFICATION AT HIS END. 4) THE LD. CIT(A) HAS FURTHER ERRED IN ISSUING DIRE CTION TO THE ASSESSING OFFICER FOR RECTIFICATION OF THE ORDER WHEN ONUS TO FILE CORRECTION STATEMENT LIES ENTIRELY WITH THE DEDUCTOR ASSESSEE AND THERE IS NO ROLE OF THE ASSESSING OFFICER IN THIS REGARD. 2. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING. HOWEVER, THE LEARNED SR. DR SHRI SATPAL SINGH SUBMITTED THAT THE POINT AT ISSUE IS COVERED IN FAVOUR OF THE REVENUE BY THE ORDER DATED 27 TH SEPTEMBER, 2012 IN ITA NOS.3910/DEL/2012 ETC. IN THE CASES OF ITO VS. GOVT. CO-ED SECONDARY SCHOOL A ND OTHERS WHEREIN CONSIDERING THE SIMILAR ISSUE THE COORDINATE BENCH WAS PLEASE TO EX PUNGE THE DIRECTIONS GIVEN BY THE CIT(A) AND THE DEPARTMENTAL APPEALS AS SUCH WERE AL LOWED. COPY OF THE CONSOLIDATED ORDER IN THE CASES OF VARIOUS ASSESSEES WAS PLACED BEFORE THE BENCH. A PERUSAL OF THE SAME SHOWS THAT CONSIDERING AN IDENTICAL ISSUE THE COORDINATE BENCH VIDE PARA 5 OF THE ORDER DATED 27-09-2012 CONSIDERED THE ISSUE IN THE FOLLOWING MANNER:- 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR. S INCE NO APPEAL IS PROVIDED U/S 246A AGAINST THE INTIMATION ISSUED U/S 200A, THEREFORE, LD. COMMISSIONER OF INCOME TAX (A) HAVING SO HELD COULD NOT HAVE GIVEN ANY DIRECTION. AN APPELLATE AUTHORITY DERIVES ITS JURIS DICTION FROM STATUTORY PROVISIONS AND, THEREFORE, CAN ACT ONLY AS PER PROV ISIONS OF LAW BESTOWING POWER UPON HIM. IF NO SUCH POWER IS THERE, HE CANNO T GIVE ANY DIRECTION. THEREFORE, THE FOLLOWING DIRECTIONS OF LD. CIT (A) ARE EXPUNGED FROM HIS ORDER: THE APPELLANTS ARE ADVISED TO FILE NECESSARY CORRE CTIONS STATEMENT BEFORE THE ASSESSING OFFICER (TDS), COORD INATE AND COOPERATE WITH THE ASSESSING OFFICER AND AFTER RECTIFICATION, PAY THE TAX AND INTEREST IF ANY, AFT ER RECTIFICATION. THE ASSESSING OFFICER (TDS) SHOULD G IVE APPEAL EFFECT TO THESE ORDERS WITHIN 2 MONTHS OF RE CEIPT OF THE ORDER IMMEDIATELY BY ISSUING NECESSARY NOTICES U/S 154 OF THE ACT TO THE APPELLANT AND RECTIFYING THE ORDE RS AS PER ITA NOS.5052 & 5053/DEL/2012 3 LAW. IF THE RECTIFICATION IS NOT POSSIBLE IN COMPUT ER, THE ASSESSING OFFICER SHOULD MANUALLY RECTIFY BY PASSIN G SUITABLE ORDER IN A FORMAT SO THAT A MASS RECTIFICA TION CAN BE COMPLETED QUICKLY. THE ASSESSING OFFICER (TDS) S HOULD GIVE OPPORTUNITY OF BEING HEARD TO THE APPELLANT BE FORE RECTIFYING THESE ORDERS AND LISTENING TO THE GRIEVA NCES OF THE APPELLANT. AS PER THE NEW COMPUTERIZED PROCEDURE, THE APPELLAN T SHOULD GO TO NSDL WEBSITE WWW.TIN.NSDL.COM > AND FILE CORRECTION STATEMENT OR DEFICIENT DATA THERE. THERE IS NO ACCESS OF ASSESSING OFFICER (TDS) TO ABOVE NSDL SIT E. HE CAN GENERATE FINAL DEMAND NOTICE U/S 156, AND ORDER S U/S 200A /201(1) /201(1A) AFTER GETTING INSTRUCTIONS FR OM HIGHER AUTHORITIES. THE APPELLANT CAN FILE CORRECTI ON STATEMENT ANY NUMBER OF TIMES IS THIS PROCESS IN NS DL SITE. WHEN HIS ALL ALTERNATIVES ARE EXHAUSTED, HE SHOULD GIVE HIS CALCULATION OF 201(1) TAX DEDUCTED FROM PAYMENTS TO DEDUCTEE AND INTEREST U/S201(1A) TO ASSESSING OFFIC ER (TDS) AND PAY THE FINAL TAX AND INTEREST ACCORDINGL Y. THEN HE CAN RECOVER THE TAX FROM DEDUCTEE AS PER LAW. FI NALLY, THE INTEREST U/S 201 (1A) IS A BURDEN ON APPELLANT WHICH IS COMPENSATORY IN NATURE, IF PROPER TDS IS NOT DEDUCT ED AND PAID TO GOVERNMENT ACCOUNT. IN THE RESULT THE DEPARTMENTAL APPEALS ARE ALLOWED IN TERMS OF AFOREMENTIONED DIRECTION. 3. IN THE LIGHT OF ABOVE THE IDENTICAL DIRECTIONS A RE GIVEN IN THE PRESENT APPEALS ARE ALSO EXPUNGED AND FOLLOWING THE SAID ORDER, THE APP EALS OF THE DEPARTMENT ARE ALLOWED. 4. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON T HE DATE OF HEARING ITSELF I.E. 27 TH NOVEMBER, 2012. SD/- SD/- (T.S. KAPOOR) (DIV A SINGH) ACCOUNTANT MEMER JUDICIAL M EMBER DATED: 27 TH NOVEMBER, 2012. ITA NOS.5052 & 5053/DEL/2012 4 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.