Bansilal Leisure Parks Ltd, Kolkata V. I.T.O (TDS) 57(2),kolkata, Kolkata

ITA 506/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4957 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEBASISH ROY JCIT SRDR
• Assessee Lawyers: SAUMITRA CHOWDHURY
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 5 06 - 5 0 7 / KOL / 2013 ASSESSMENT YEARS :2005-06 & 2006-07 BANSILAL LEISURE PARKS LTD., BARIK & ASSOCIATES, CHARTERED ACCOUNTANTS, 12, CHOWRINGHEE SQUARE, KOLKATA 700 069 [ PAN NO.AABCB 2932 L ] V/S . INCOME TAX OFFICER (TDS), WARD-57(2), 10B, MIDDLETON ROW, KOLKATA 700 071 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SAUMITRA CHOWDHURY, ADVOCATE /BY REVENUE SHRI DEBASISH ROY, JCIT-SR-DR /DATE OF HEARING 08-03-2016 ! /DATE OF PRONOUNCEMENT 19-04-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- BOTH APPEALS BY THE ASSESSEE ARE ARISING OUT OF OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-XIX, KOLKATA IN APPEAL NO.9 8-97/CIT(A)-XIX/WD- 57(2)/KOL/11-12 DATED 08.01.2013. ASSESSMENTS WERE FRAMED BY ITO WARD- 57(2), KOLKATA U/S 206C(7) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 19.11.2008 FO R ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. 2. SINCE COMMON GROUNDS ARE INVOLVED EXCEPT THE CHA NGE IN THE FIGURES IN BOTH THE APPEALS, THEREFORE, THEY WERE HEARD TOGETH ER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONV ENIENCE. HENCE, WE TAKE ITA NO.506-507/KOL/2013 A.YS. 2005-06 & 2006-07 BANSILAL LEISURE PARKS LTD. V. ITO (TDS) WD-57(2) KOL. PAGE 2 THE LEAD CASE IN ITA NO.507/KOL/2013 FOR A.Y. 2006-07 AND REPRODUCED THE GROUNDS AS UNDER:- 1. GROUND NO. 1 THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(APPEALS) HAS ERRED IN CONFIRMING T HE ORDER OF ASSESSING OFFICER ON ACCOUNT OF TCS & INTEREST ON TCS ASSESSE D U/S 206(6) & 206C(7). 2. GROUND NO. 2 THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(APPEALS) HAS MISINTERPRETED THE PROVISION O F SEC. 206C(6) & 206C(7). 3. GROUND NO. 3 THAT ON THE FACTS & CIRCUMSTANCE OF THE CASE, THE LD. CIT(APPEALS) HAS FAILED TO APPLY HIS MIND IN THE FA CTS, AND THE DOCUMENTS AS EVIDENCE PRODUCED BY THE APPELLANT ASSESSEE. 4. GROUND NO. 4. THAT THE LD. CIT(APPEALS)CALLED FOR A REMAND REPOR T AND THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT ALL T HE DEDUCTES HAVE FILED THE I.T RETURNS & PAID TAXES THEREON. ON THESE FACTS, T HE FINDING OF THE CIT(APPEALS) IS COMPLETELY ERRONEOUS, PERVERSE & IL LEGAL. 5. GROUND NO.5 THAT IN DECIDING THE APPEAL THE LD. CIT(APPEALS) H AS MISCONSTRUED THE APEX COURTS JUDGMENT AS WELL AS T HAT OF HIGH COURTS WHICH LED HIM TO ARRIVE AT A ARBITRARY, VINDICTIVE AND MA LAFIDE CONCLUSION. 6. GROUND NO.6 THAT THE DEMAND OF TAX ON TCS BEING RS.77,56,739/- IS ILLEGAL & NOT IN ACCORDANCE IN THE INCOME TAX ACT. 3. THERE IS COMMON AND SINGLE ISSUE INVOLVED IN BO TH THE APPEALS. THE ISSUE RAISED BY ASSESSEE IN APPEAL IS THAT LD. CIT( A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER BY TREATING ASSESSEE IN DEFAULT FOR NON- COLLECTION OF TAX AT SOURCE AS PER THE PROVISIONS O F SECTION 206C(6A) OF THE ACT. 3.1 FACTS OF THE CASE ARE THAT ASSESSEE IS A PRIVAT E LIMITED COMPANY AND ENGAGED IN THE WHOLESALE BUSINESS OF TIMBERS. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, AO FOUND THAT ASSESSEE HAS MADE SALE OF THE TIMBERS TO VARIOUS PARTIES BUT FAILED TO COLLECT TC S IN TERMS OF THE PROVISIONS OF THE SEC.206C(6) OF THE ACT. THE PARTY-WISE DETAIL O F SALE OF TIMBERS IS REPRODUCED BELOW :- SL. NO. NAME OF THE BUYERS AMOUNT OF SALE (RS) 1 D.D ENTERPRISES 2,27,98,516/- 2 ZENITH TIMBERS PRODUCTS PVT.LTD 3,73,21,252/- ITA NO.506-507/KOL/2013 A.YS. 2005-06 & 2006-07 BANSILAL LEISURE PARKS LTD. V. ITO (TDS) WD-57(2) KOL. PAGE 3 3 RAJPUTANA GENERAL COMM CORP (P) LTD 3,64,33,527 /- 4 VAISHNO TIMBER PVT LTD. 88,42,499/- 5 TIMTECH INDIA PVT LTD 87,73,024/- 6 ARPAN FISCAL SERVICES 90,99,822/- 7 EASTERN TIMBER COMMO. TRADE PVT.LTD. 3,56,99,641 /- 8 SHREE IMPEX 2,58,27,077/- 9 A.B.FUNISHING PVT. LTD. 67,46,304/- 10 SHYAM SALES AGENCIES 6,64,161/- 11 CHOWDHURY ENTERPRISES 1,40,51,426/- 12 SHIVANG PREXIM PVT. LTD. 1,52,17,526/- 13 S.R.TIMBER WORKS PVT. LTD. 18,45,000/- TOTAL RUPEE 22,93,19,778/- ON QUERY FOR THE SAID DEFAULT, ASSESSEE SUBMITTED T HAT BUYERS OF THE TIMBER HAVE PAID THE TAXES IN THEIR RESPECTIVE RETURNS OF INCOME, SO ASSESSEE SHOULD NOT BE TREATED AS ASSESSEE IN DEFAULT. HOWEVER, AO REJECTED THE CLAIM OF ASSESSEE BY HOLDING THAT THE ASSESSEE HAS GROSSLY V IOLATED THE PROVISIONS OF SEC. 206C OF THE ACT. ACCORDINGLY, AO DISALLOWED TH E SUM OF RS.22,93,19,778/- @ 2.5% OF THE SALES AND ADDED IT TO THE TOTAL INCOME OF ASSESSEE. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) AND SUBMITTED THAT ALL THE PARTIES TO WHOM THE SALES WE RE MADE BY THE ASSESSEE, HAVE PAID THE TAXES BY FILING THEIR INCOME TAX RETU RNS. THE ASSESSEE RELIED ON THE ORDER OF HONBLE APEX COURT IN THE CASE OF COCA-COLA BEVERAGE PVT. LTD. VS CIT (2007) 293 ITR 226 (SC) WHEREIN IT WAS HELD THAT THE TRIBUNAL CAME TO THE RIGHT CONCLUSION THAT THE TAX ONCE AGAIN COU LD NOT BE RECOVERED FROM THE APPELLANT (DEDUCTOR ASSESSEE) SINCE THE T AX HAS ALREADY BEEN PAID BY THE RECIPIENT OF INCOME. HOWEVER, THE LD. CIT(A) HAS DISREGARDED THE PLEA OF THE ASSESSEE AND ADDED TO THE TOTAL INC OME OF THE ASSESSEE. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. ITA NO.506-507/KOL/2013 A.YS. 2005-06 & 2006-07 BANSILAL LEISURE PARKS LTD. V. ITO (TDS) WD-57(2) KOL. PAGE 4 SHRI SAUMITRA CHOWDHURY, LD. AUTHORIZED REPRESENTAT IVE APPEARING ON BEHALF OF ASSESSEE AND SHRI DEBASISH ROY, LD. DEPARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 5. WE HAVE HEARD RIVAL SUBMISSIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE US THE LD. AR SUBMITTED THAT ALL THE PARTIES TO WHOM SALES WERE MADE BY THE ASSESSEE HAV E DULY FURNISHED INCOME TAX RETURNS. THEREFORE THE LD. AR CONTENDED THAT THE ASSESSEE IN THE PRESENT CASE CANNOT BE TREATED AS ASSESSEE IN DEFAU LT. THE AR ALSO SUBMITTED THAT THE HONBLE TRIBUNAL OF KOLKATA HAS ALREADY DE CIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE IN ITA NO. 573-574/KOL/2013 FOR THE AYS 2007- 08 AND 2008-09 RESPECTIVELY DATED 20-01-2016. ON OT HER HAND THE LD. DR VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELO W. 5.1 FROM THE AFORESAID DISCUSSIONS, WE FIND THAT TH E ASSESSEE FAILED TO COLLECT THE TCS AT THE TIME OF SELLING THE TIMBER T O THE PARTIES AS PER THE PROVISIONS OF LAW. ACCORDINGLY THE AO TREATED THE A SSESSEE IN DEFAULT AND RAISED THE DEMAND OF THE TAX. HOWEVER WE FIND THAT THE SIMILAR ISSUE IS ALREADY COVERED IN FAVOUR OF ASSESSEE BY HONBLE TRIBUNAL O F KOLKATA IN ITS OWN CASE IN ITA NO. 573-574/KOL/2013 FOR THE AYS 2007-08 AND 2008-09 DATED 20-01- 2016. HOWEVER WE FIND FROM THE ORDER OF LD. CIT(A) THAT THE ASSESSEE HAS SUBMITTED THAT THE COPIES OF THE ITR OF THE PARTIES TO WHOM GOODS WERE SOLD FOR A VALUE OF RS. 16,57,64,885.00 AS DETAILED UNDE R : SL.N0. NAME OF THE PARTIES AMOUNT (RS) DATE OF FILI NG RETURN FOR THE AY 06-07 1 ZENITH TIMBER PRODUCTS (P) LTD. 3,73,21,252.60 27 .11.2006 2 TIMTECH INDIA (P) LTD. 87,73,024.00 27.11.2006 3 VAISHNO TIMBER (P) LTD. 88,42,500.00 29.11.200 6 4 RAJPUTANA GENERAL COMM.CORPN (P) LTD. 3,64,33,527.33 30.11.2006 5 EASTERN TIMBER COMMO TRADE (P) LTD. 3,56,99,639.30 29.11.2006 6 CHOWDHURY ENTERPRISE 1,40,51,426.35 31.10.2006 7 DD ENTERPRISE 2,27,98,516.00 31,10.2006 8 S.R TIMBER PRODUCTS (P) LTD. 18,45,000.00 ITA NO.506-507/KOL/2013 A.YS. 2005-06 & 2006-07 BANSILAL LEISURE PARKS LTD. V. ITO (TDS) WD-57(2) KOL. PAGE 5 FROM THE ABOVE, WE FIND THAT ALL THE PARTIES TO WHO M THE GOODS WERE SOLD HAVE NOT FURNISHED THEIR INCOME TAX RETURNS. THEREFORE W E ARE RESTORING THIS FILE TO THE AO WITH THE DIRECTION NOT TO TREAT THE ASSESSEE IN DEFAULT WITH RESPECT TO THE PARTIES WHO HAVE FURNISHED INCOME TAX RETURNS A ND ADJUDICATE THE MATTER ACCORDINGLY AS PER LAW. RELYING IN THE OWN DECISION OF THE ASSESSEE (SUPRA), WE REVERSE THE ORDER OF THE AUTHORITIES BELOW AND A LLOW THIS GROUND OF ASSESSEES APPEAL FOR STATISTICAL PURPOSE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. COMING TO ITA NO. 506/KOL/2013 FOR A.Y. 05-06. 7. THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THE FACTS FOR A.Y 2006-07 INCLUDING THE SECTION UNDER WHICH T HE ORDER HAS BEEN PASSED EXCEPT THE AMOUNT INVOLVED. AS THE REST OF THE FACT S AND CIRCUMSTANCES ARE SIMILAR, SO FOLLOWING OUR ORDER FOR AY 2006-07 IN P ARA-5 TO 5.1 OF THIS ORDER, WE DECIDE THE EFFECTIVE GROUND OF ASSESSEES APPEAL FO R STATISTICAL PURPOSE IN TERMS OF ITA 507/KOL/2013. 8. SUMMARIZING THE RESULT OF THIS ORDER, BOTH APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 19 /04/2016 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP '#$- 19 / 04 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE BANSILAL LEISURE PARKS LTD., BARIK & ASSOCI ATES, CHARTERED ACCOUNTANTS, 12, CHOWRINGHEE SQUARE, KOLKATA-700 069 2. /REVENUE- ITO (TDS), WARD-57(2), 10B MIDDLETON ROW, KOLKATA-71 3.#,#-. / / CONCERNED CIT KOLKATA 4. /- / CIT (A) KOLKATA 5.2 3455-., -.!, / DR, ITAT, KOLKATA 6.489:; / GUARD FILE. BY ORDER/ , /TRUE COPY/ /# -.!,