K.Ravindranathan Nair, Kollam V. DCIT, Kollam

ITA 526/COCH/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6889 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-02-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S BINDHU
• Assessee Lawyers: T V HARIHARAN
• Keywords: TDS
• Section: 201

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFOR E S/ SHRI CHANDRA POOJARI , AM & GEORGE GEORGE K., J M I .T . A. NO. 526 & 527 / COCH/ 201 8 ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 SHRI K. RAVINDRANATH NAIR, VIJAY A LAXMI CASHEW COMPANY, KOCHUPILAMMOODU, KOLLAM . [PAN: TVDRO 0175A] VS. THE ASSISTANT COMMISSIONER OF INCOME - TAX(TDS), TRIVANDRUM. (ASSESSEE - APPE LLANT) (REVENUE - RESPONDENT) A SSESSEE BY SHRI T.V. HARIHARAN, CA REVENUE BY SMT. A.S. BINDHU, DR D ATE OF HEARING 19/02/2019 DATE OF PRONOUNCEMENT 01 / 0 3 /201 9 O R D E R PER GEORGE GEORGE K. JM : THESE APPEALS AT THE INSTANCE OF THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE CIT(A), TRIVANDRUM DATED 12/09/2018. THE RELEVANT ASSESSMENT YEARS ARE 2008 - 09 AND 2009 - 10. THE ORDER OF T HE CIT(A) ARISE OUT OF THE ORDERS PASSED U/S. 201 (1) & 201(1A) OF THE I.T. ACT. 2 . SINCE COMMON ISSUES ARE RAISED IN THESE APPEALS, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. I.T.A. NO S . 526 & 527 /COCH/201 8 2 3. THE GROUNDS RAISED FOR AYS 2008 - 0 9 AND 2009 - 10 ARE IDENTICAL EXCEPT FOR VARIATION IN FIGURES. HENCE, THE GROUNDS RELATING TO ASSESSMENT YEAR 2008 - 09 ARE REPRODUCED BELOW: (1) THE ORDER OF THE COMMISSIONER OF INCOME - TAX(APPEALS), TRIVANDRUM IS AGAINST LAW, OPPOSED TO THE FACTS AND CI RCUMSTANCES OF THE CASE. (2) THE LEARNED CIT(A) ERRED IN CONCLUDING THAT NO ADJOURNMENT WAS SOUGHT FOR HEARING FIXED ON 11/09/2018. ADJOURNMENT DATED 8/9/2018 STATING VALID REASONS FOR THE SAME WAS EMAILED TO CIT(A), TVM & CONFIRMATORY COPY SENT BY POST. ON ALL EARLIER THREE OCCASIONS TOO, SIMILAR ADJOURNMENT THROUGH EMAIL WERE SOUGHT. (3) THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER IMPOSING THE DEMAND ON THE ASSESSEE U/S. 201(1)/201(1A) I N SPITE OF THE FACT THAT FOR THE RELEVANT ASSESSMENT YEAR THE ASSESSEE FILED THE TDS RETURNS IN FORM 26Q AND REMITTING TAX DEDUCTED AT SOURCE FROM TIME TO TIME AT RATES AS PRESCRIBED IN THE ACT. HENCE THE DEMAND WAS UNSUSTAINABLE IN LAW. (4) CIT(A) OUGHT TO HAVE APPRECIATED THAT THE OFFICER HAD FAILED TO CONSIDER THE REQUESTS FOR RECTIFICATION FILED BY THE ASSESSEE FROM TIME TO TIME POINTING OUT NO SHORTFALL OR DEDUCTION OF TAX AT SOURCE AND CONSEQUENTLY NO LIABILITY FOR TAX AND INTEREST IN EH ABS ENCE OF ANY DEFAULT. (5) THE CIT(A) WOULD HAVE APPRECIATED THAT FOR FINANCIAL YEAR 2007 - 08 (ASSESSMENT YEAR 2008 - 09), THE ASSESSEE HAS PAID THE FOLLOWING AMOUNTS IN RESPECT OF SHORT DEDUCTION OF TAX. TOTAL DEMAND AMOUNT PAID (INCLUDING INTEREST) (RS.) (RS.) III QUARTER 267070 52560 IV QUARTER 287550 33390 (6) THE CIT(A) AS WELL AS OFFICER OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE DEDUCED THE TAX AT SOU RCE ON VARIOUS PAYMENT ONLY AT APPROPRIATE RATES AS STIPULATED IN THE RELEVANT PROVISIONS OF THE ACT AS WAS ALSO EVIDENT FROM T HE REPLIES GIVEN BY T HE ASSESSEE IN RESPONSE TO THE I.T.A. NO S . 526 & 527 /COCH/201 8 3 SHOW CAUSE NOTICES WHEREIN REQUEST FOR RECTIFICATION WAS SOUGHT. THIS WAS COMPLETELY IGNORED BY THE OFFICER RES ULTING IN THE DEMAND SERVED ON THE ASSESSEE WHICH IS HENCE UNTENABLE. FOR THE ABOVE AND OTHER ADDITIONAL GROUNDS THAT MAY BE ADVANCED AND OTHER RECORDS AND EVIDENCE THAT HAS TO BE PRODUCED AT THE TIME OF HEARING THE APPELLANT PRAYS THAT THE APPEAL BE ALLOWED. 4. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS: ACIT(TDS) PASSED ORDERS U/S. 201 (1) & 201(1A) OF THE ACT FOR THE ASSESSMENT YEARS 2008 - 09 & 2009 - 10 , ON ACCOUNT OF SHORT DEDUCTION OF TAX AND AL SO FOR NON PAYMENT OF TAX DEDUCTED AT SOURCE BY THE ASSESSEE . 5. AGGRIEVED BY THE ORDERS PASSED U/S . 201 (1) & 201(1A) OF THE I.T. ACT , THE ASSESSEE PREFERRED APPEALS BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT(A) CONFIRMED THE VIEW TAKEN BY THE ASSESSING OFFICER AND REJECTED THE APPEALS FILED BY THE ASSESSEE. 6. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. IT IS NOW SUBMITTED BEFORE THE TRIBUNAL THAT THE TAX THAT WAS DEDUCTED AT SOURCE WAS ALREADY PAID AND THERE IS NO PAYMENT PENDING. AS PROOF THEREOF THE RELEVANT COPIES OF CHALLANS WERE ENCLOSED ALONGWITH THE PAPER BOOK FILED BY THE ASSESSEE. 7. THE LD. DR SUPPORTED THE ORDERS OF THE INCOME TAX AUTHORITIES. I.T.A. NO S . 526 & 527 /COCH/201 8 4 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAS PRODUCED THE RELEVANT COPIES OF CHALLANS FOR PAYMENT OF TDS . ACCORDIN G TO THE ASSESSEE , AS PER DEFAULT SUMMARY FOR THE ASSESSMENT YEAR 2008 - 09, T HE DEMAND WAS RS.38,660/ - AND FOR THE ASSESSMENT YEAR 2009 - 10, IT WAS RS.41,650/ - WHICH WAS DULY PAID. IN THE INTEREST OF JUSTICE AND EQUITY, WE ARE OF THE VIEW THAT ONE MORE OPPO RTUNITY IS TO BE GRANTED TO THE ASSESSEE TO PROVE THAT THERE IS NO SHORT DEDUCTION OF TAX OR NON PAYMENT OF TAX DEDUCTED AT SOURCE. FOR THE ABOVE PURPOSE, WE REMIT THIS ISSUE TO THE FILE OF THE CIT(A) FOR FRESH CONSIDERATION. 9 . IN THE RESULT, THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 ST MARCH , 2019 SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JU DICIAL MEMBER PLACE: KOCHI DATED: 01 ST MARCH , 2019 GJ COPY TO: 1 . SHRI K. RAVINDRANATH NAIR, VIJAYALAXMI CASHEW COMPANY, KOCHUPILAMMOODU, KOLLAM. 2. THE ASSISTANT COMMISSIONER OF INCOME - TAX (TDS), TRIVANDRUM. 3 . THE COMMISSIONER OF INCOME - TAX (AP P EA LS) ,TRIVANDRUM. I.T.A. NO S . 526 & 527 /COCH/201 8 5 4. THE COMMISSIONER OF INCOME - TAX (TDS), KOCHI. 5. D. R., I.T.A.T., COCHIN BENCH, COCHIN. 6 . GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN =