YES BANK LIMITED, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX,CENTRAL PROCESSING CELL,TDS, GHAZIABAD

ITA 5129/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4088 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITA VEERMA
• Keywords: Opportunity of being heard; Principle of natural justice; TDS
• Section: 201; 154

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 5129/MUM/2019 (ASSESSMENT YEAR 2014-15 ) I.T.A. NO. 5130/MUM/2019 (ASSESSMENT YEAR 2015-16 ) I.T.A. NO. 5131/MUM/2019 (ASSESSMENT YEAR 2015-1 6) YES BANK LIMITED IFC 2, 15 TH FLOOR SENAPATI BAPAT MARG ELPHISTONE WEST MUMBAI-400 013. PAN : AAACY2068D VS . ACIT, CENTRAL PROCESSING CELL TDS, GAZIABAD AAYAKAR BHAVAN SECTOR-3 VAISHALI GAZIABAD (UP) (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI KRUPA GANDHI DEPARTMENT BY MS. SMITA VEERMA DATE OF HEARING 25.02.2021 DATE OF PRONOUNCEMENT 18.05.2021 O R D E R PER SHAMIM YAHYA (AM) :- THESE ARE APPEALS BY THE ASSESSES AGAINST RESPECT IVE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [IN SHORT LEAR NED CIT(A)] FOR THE CONCERNED ASSESSMENT YEARS AS ABOVE. SINCE THE ISSU ES ARE COMMON AND CONNECTED THESE ARE BEING DISPOSED OF TOGETHER BY T HIS COMMON ORDER. 2. THE GROUNDS OF APPEAL RAISED ARE COMMON. FOR THE SAKE OF CONVENIENCE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2014-15 IS REPRODUCED HEREUNDER :- GROUND NO. I: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSTT COMMISSIONE R OF INCOME TAX CPC- TDS ('THE AO') PASSED U/S 154 OF THE ACT FOR Q1TREATING THE APPELLANT AS AN ASSESSEE IN DEFAULT U/S 201 OF THE ACT WITHOUT GIVING A N OPPORTUNITY OF HEARING TO THE APPELLANT AND THEREBY VIOLATING THE PRIN CIPLES OF NATURAL JUSTICE. 2. THE LD CIT(A) FAILED TO APPRECIATE THAT THE APPELL ANT HAD NOT RECEIVED THE PURPORTED NOTICE FOR HEARING OF APPEAL. YES BANK LIMITED 2 3. THE APPELLANT PRAYS THAT THE ORDER PASSED BY THE A O UNDER SECTION 201(1)/201(1A) FOR QL OF THE ACT AND UPHELD BY THE LD. CIT(A) BE ANNULLED AS VOID AB-INITIO AND/OR OTHERWISE BAD IN LAW. WITHOUT PREJUDICE TO GROUND I GROUND NO. II: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ISSUING THE DIRECTION TO THE AO TO VERIFY FRO M RECORDS THE CLAIM OF THE APPELLANT AND DO AS PER LAW, WITHOUT CONSIDERING THE O RDERS PASSED BY CIT(A) IN OTHER PERIODS, ON THE SAME ISSUE 2. LD CIT(A) FAILED TO APPRECIATE THAT THE GROUND ON WHICH THE APPELLANT WAS HELD AS AN ASSESSEE IN DEFAULT WAS DECIDED IN FAVOU R OF THE APPELLANT BY OTHER APPELLATE ORDERS OF CIT(A). 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD CIT(A) BE STRUCK DOWN AS HAVING BEEN PASSED DISREGARDING THE EARLIER APPELLA TE ORDERS ON THE SAME ISSUE. WITHOUT PREJUDICE TO GROUNDS I AND II GROUND NO III: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO OF HOLDING THE APPELLANT AS AN ASSESSEE IN DEFAULT U/S 201 OF THE ACT FOR RS. 2,36 ,559/- EVEN THOUGH THERE WAS NO SHORT DEDUCTION OF TAX AT SOURCE AND THERE WAS ONLY A MIS-MATCH BETWEEN THE AMOUNT CLAIMED BY THE APPELLANT AND THE AMO UNT CAPTURED BY TRACES DUE TO WRONG QUOTING OF TAN BY CUSTOMERS IN THEI R APPLICATIONS U/S 197 OF THE ACT. 2. THE APPELLANT PRAYS THAT IT BE HELD THAT IN THE ABS ENCE OF ANY SHORT DEDUCTION, THE APPELLANT SHOULD NOT BE TREATED AS AN A SSESSEE IN DEFAULT U/S 201. WITHOUT PREJUDICE TO GROUNDS I AND II GROUND NO IV: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO OF CHARGING I NTEREST U/S 201(1A) OF THE ACT AMOUNTING TO RS. 67,685/-ON THE PURPORTED SHOR T DEDUCTION OF TAX AT SOURCE. 2. THE APPELLANT PRAYS THAT THE AO BE DIRECTED TO DELETE THE INTEREST AMOUNTING TO RS. 67,685/ - CHARGED U/S. 201(1A). 3. BRIEF FACTS OF THE CASE ARE THAT PURSUANT TO ASS ESSMENT ORDER THE LEARNED CIT(A) PASSED A NON-SPEAKING ORDER REMITTING THE ISSUE TO THE FILE OF ASSESSING OFFICER BY OBSERVING AS UNDER :- I HAVE GONE THROUGH THE GROUNDS OF APPEAL AND STATEMEN T OF FACTS. AS THE APPELLANT HAS NOT ATTENDED HEARING EVEN AFTER BEING G IVEN MANY YES BANK LIMITED 3 OPPORTUNITIES AND SINCE NO DOCUMENTS HAVE BEEN ATTACHE D ABOUT DEDUCTION OF TAX. HENCE, THE ONLY DIRECTION THAT CAN BE GIVEN TO ASSESS ING OFFICER IS TO VERIFY FROM THE RECORDS THE CLAIM OF THE APPELLANT AND DO A S PER LAW. 4. THE ABOVE ORDER WAS PASSED EVEN AFTER NOTING DOW N THE VARIOUS GROUNDS RAISED BY THE ASSESSEE AND THE STATEMENT OF FACTS S UBMITTED. 5. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE US. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. 6. WE FIND THAT IT IS SETTLED LAW THAT EVEN ADMINIS TRATIVE ORDERS HAVE TO BE CONSISTENT WITH THE RULES OF NATURAL JUSTICE. WE NO TE THAT DESPITE NOTING THE ASSESSEE'S ISSUES AND GROUNDS RAISED LEARNED CIT(A) HAS CHOSEN NOT TO PASS BY SPEAKING ORDER. SHE HAS LACONICALLY REMITTED THE MA TTER TO THE FILE OF ASSESSING OFFICER. AS PER THE PROVISIONS OF LAW CONTAINED IN SECTION 251(1) OF THE ACT. THE LEARNED CIT(A) HAS NO POWER TO REMIT THE MATTER TO THE FILE OF ASSESSING OFFICER. SHE CAN ONLY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. IN THIS VIEW OF THE MATTER THE ORDER OF LEARNED CIT(A) IS NOT AT ALL SUSTAINABLE. HOWEVER IN THE INTEREST OF JUSTICE WE REMIT THE ISSUE TO THE F ILE OF LEARNED CIT(A). THE LEARNED CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER ON THE GROUNDS AND ISSUE RAISED BY THE ASSESSEE. NEEDLESS TO ADD ASSESSEE SH OULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT THESE APPEALS STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 18.5.2021. SD/- SD/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 18/05/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) YES BANK LIMITED 4 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI