Dy.Commissioner of Income-Tax ,(TDS),Circle-2, Nagpur V. Addl.Special Land Aquisition Officer, Nagpur

ITA 51/NAG/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3078 (ITAT-NAGPUR)
• Duration Of Justice: 7 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 15-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DAHARIA
• Assessee Lawyers: PRAKASH G PATIL
• Keywords: TDS
• Section: 201(1); 195

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR E-BENCH, NAGPUR (THROUGH VIDEO CONFERENCE AT MUMBAI) . . , . / , . . BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER /AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 51/NAG/2012 / ASSESSMENT YEAR 2008-09 DY. COMMISSIONER OF INCOME-TAX (TDS), CIRCLE-2, GROUND FLOOR, AAYAKAR BHAVAN, TELANGHKHEDI ROAD, CIVIL LINES, NAGPUR. VS. ADDL. SPECIAL LAND ACQUISITION OFFICER, PENCH PROJECT, NAGPUR. TAN: NGPAO 3353 A ( / APPELLANT ) ( / RESPONDENT ) REVENUE BY : SHRI A.K. DAHARIA, DCIT ASSESSEE BY : SHRI PRAKASH G. PATIL ! '#$ / DATE OF HEARING : 24-01-2013 %& ! '#$ / DATE OF PRONOUNCEMENT : 30-01-2013 '( / O R D E R PER RAJENDRA, AM APPEAL HAS BEEN FILED BY THE DY.CIT (TDS), CIRCLE-2 , NAGPUR (AO) CHALLENGING THE ORDER DT. 28-11-2011 OF THE CIT(A)- II, NAGPUR RAISING THE FOLLOWING GROUND OF APPEAL: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(APPEALS)-II, NAGPUR, RELYING UPON THE DECISION IN THE CASE OF MA DHUSUDAN SHRIKRISHNA VS. EMKAY EXPORTS (2010) 188 TAXMAN 195 (BOM.), THOUGH TH E INCOME TAX DEPARTMENT WAS NOT A PARTY IN THE CASE AND IGNORING THE CONTRARY D ECISIONS IN THE CASE OF KANTIKUMAR SAXENA (2003) 262 ITR-33 (MP), M. KUMARAN VS. STATE OF KERALA (1999) 239 ITR 846 (KER.) STATE OF KERALA VS. MARIAMMA & OTHERS 19 3 CTR (393) KER, IS CORRECT IN LAW IN HOLDING THAT THE A.O. ERRED IN TREATING THE TAX DEDUCTOR AS ASSESSEE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1) READ WITH SECT ION 194A OF THE INCOME TAX ACT, 1961 AND ACCORDINGLY RAISING A DEMAND OF RS. 7,79,4 13/- U/S. 201(1)/201(1A) READ WITH SECTION 194LA / 194A OF THE I.T.ACT, 1961. ITA NO. 51/NAG/2012 2 2. FACTS OF THE CASE: WHILE MAKING INQUIRIES ABOUT COMPLIANCE OF PROVISIO NS OF TDS, ACIT (TDS), NAGPUR NOTICED THAT ADDITIONAL COMPENSATION WITH RE GARD TO LAND ACQUISITION PROCEEDINGS WAS PAYABLE TO MEMBERS OF FAMILY OF NA GPURE, THAT COMPENSATION WAS DEPOSITED IN THE COURT AS PER THE DIRECTIONS OF THE COURT, THAT AMOUNT-IN-QUESTION INCLUDED INTEREST PAYABLE ON ADDITIONAL COMPENSATIO N, THAT TAX WAS NOT DEDUCTED ON AMOUNTS OF INTEREST DEPOSITED WITH COURT, THAT MEMB ERS OF THE NAGPURE FAMILY HAD FILED APPEALS BEFORE THE HONBLE HIGH COURT AGAINST THE ORDER OF THE LOWER COURT. 2.1 CONSIDERING THE ABOVE FACTS, AO HELD THAT THERE WAS FAILURE ON THE PART OF THE DEDUCTOR, ADDITIONAL SPECIAL LAND ACQUISITION OFFIC ER, PENCH PROJECT, NAGPUR, TO DEDUCT TDS ON COMPENSATION AWARDED, THAT DEDUCTOR S HOULD PAY RS. 7,98,003/- ON ACCOUNT OF DEMAND U/S. 201(1)/201(1A) FOR THE AY 20 07-08, THAT PROVISIONS OF SEC. 201 R.W.S. 194LA/194A OF THE ACT WERE APPLICABLE IN THE MATTER UNDER CONSIDERATION. AO RELIED UPON THE CASES OF THE HONBLE M.P. HIGH C OURT, HONBLE KERALA HIGH COURT, HONBLE PUNJAB & HARYANA HIGH COURT DELIVERE D IN THE MATTERS OF KANTI KUMAR SAXENA [262 ITR 33 (MP)]; STATE OF KERALA VS. MARI AMMA AND OTHER [208 ITR 225); M. KUMARAN VS. STATE OF KERALA [239 ITR 848] AND BA LDEEP SINGH VS. UNION OF INDIA ( ITR 628) RESPECTIVELY. 3. DEDUCTOR FILED AN APPEAL BEFORE THE FIRST APPELLAT E AUTHORITY (FAA). RELYING ON THE JUDGMENT DELIVERED BY THE HONBLE JURISDICTI ONAL HIGH COURT IN THE CASE OF MADHUSUDAN SHRIKRISHNA VS. EMKAY EXPORTS [188 TAXMA N 195 (BOM)] DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 3.1 BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) SUBMITT ED THAT ADDITIONAL SPECIAL ACQUISITION OFFICER SHOULD HAVE DEDUCTED TA X AT SOURCE, THAT FAA DID NOT CONSIDER THE JUDGMENTS OF HONBLE HIGH COURT OF KER ALA, PUNJAB & HARYANA AND MP. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS A FACT THAT MEMBERS OF NAGPURE FAMILY ARE ENTITLED FOR COMPENSATION. BUT, CONSIDE RING THE FACTS, THAT COMPENSATION WAS NOT DISTRIBUTED TO LAND-HOLDERS, THAT MATTER IS SUBJUDICE, THAT HONBLE BOMBAY HIGH COURT HAS DECIDED THE ISSUE AGAINST THE REVENU E, WE ARE OF THE OPINION THAT ORDERS OF THE FAA IS NOT SUFFERING FROM ANY INFIRMI TY. AS FAR AS JUDGMENTS OF OTHER HONBLE HIGH COURTS ARE CONCERNED, IN OUR HUMBLE OP INION, ORDER OF THE JURISDICTIONAL HIGH COURT WILL PREVAIL. THEREFORE, FOLLOWING THE JUDGEMENT OF MADHUSUDAN SHRIKRISHNA (SUPRA), WE UPHOLD THE ORDER OF THE FA A AND DECIDE THE ONLY GROUND OF APPEAL AGAINST THE AO. AS A RESULT, APPEAL FILED BY THE AO STANDS DISMISSED. * +, - -# / '01 ! +23 ! ' 45. ORDER PRONOUNCED BY E-BENCH AT MUMBAI ON THIS 30 TH DAY OF JANUARY, 2013 +7 0,' - 789 / 30 # 2013 & '( %&:' ; . SD/- SD/- ( . . / R.K. GUPTA ) ( / RAJENDRA ) ', / JUDICIAL MEMBER $ ', / ACCOUNTANT MEMBER +7 MUMBAI, ;' DATE: 30 TH JANUARY, 2013 ITA NO. 51/NAG/2012 3 TNMM COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE :' ' //TRUE COPY// BY ORDER, ASST. REGISTRAR, ITAT