M/S BALAJI VENTURES PVT. LTD, Nagpur V. DY, CIT(TDS) CIR. 1, Nagpur

ITA 541/NAG/2016

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9253 (ITAT-NAGPUR)
• Duration Of Justice: 5 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 09-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VITTHAL BHOSALE
• Keywords: Additional evidence; TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SH. VIKRAM SINGH YADAV, ACCOUNTANT MEMBER AND SH. YOGESH KUMAR U.S., JUDICIAL MEMBER ITA No.541/NAG/2016 (ASSESSMENT YEAR 2015-16) M/s. Balaji Ventures Pvt. Ltd. “Krishna House”, 71/A, S.T.Bus Stand Road, Ganeshpeth, Nagpur-440 018 PAN: NGPD0 2781C (APPELLANT) Vs. The Dy. Commissioner of Income Tax (TDS), Circle-1, Nagpur (RESPONDENT) ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the assessee against the order of Learned Commissioner of Income Tax (Appeals)-2, Nagpur, [“Ld. CIT(A)”, for short], dated 14/07/2016 for Assessment Year 2015-16. 2.The brief facts of the case are that, a survey u/s 133A(2A) of the Income Tax Act, 1961 was conducted on 11.08.2015 and it was noticed that the Assessee Company has collected Tax Collected at Source (‘TCS’ for short) but has not deposited the same into Government Account. Subsequently, information was called for from the Assessee in respect of the TCS. From information furnished by Appellant bySh. NareshJakhotia, CA Respondent bySh.VitthalBhosale,Jt.CIT-DR Date of Hearing06.06.2022 Date of Pronouncement08.06.2022 2 ITA No.541/Nag/2016 M/s. Balaji Ventures Pvt. Ltd. vs. DCIT the Assessee company, it is seen that TCS of Rs.26,08,082/- was collected during the financial year 2014-15 on sale of coal, but the same was not deposited. The Assessee Company was given an opportunity to explain why it should not be treated as ‘assessee in default’ for the amount of TCS collected but not paid in view of provision of section 206C(6A) of the Act. After considering the reply from the assessee an order u/s 206C(6A) of the Act came to be passed on 26.11.2015 by treating the assessee as ‘assessee in default’ and directed to pay a sum of Rs.28,80,052/-. 3.Aggrieved by the order dated 26.11.2015, the assessee has preferred an appeal before the Ld. CIT(A). The Ld. CIT(A) vide order dated 14.07.2016 dismissed the appeal filed by the assessee. 4.Aggrieved by the order of the CIT (A) dated 14.07.2016, the assessee has preferred the instant appeal on following grounds: “1)The Id. DCIT and Hon'ble CIT Appeal is not justified in considering the fact that the assessee is not required to collect tax at source u/s. 206C (6A) and Explanation provided under the said section under I.T. Act. The Lower Authorities have missed the explanation provided under the said section in total when the purchasing party are assessed to Income tax, filed their return u/s. 139 and taken into account the transaction of the assessee and paid the taxes. This amounts double taxation on assessee and also to the purchasing party. 2)The Id. DCIT and Hon'ble CIT Appeal is not justified in considering the fact that the assessee has not received money in consideration of sale of goods on which tax is collected and when the consideration is not realised, the assessee is not required to deposit the tax collected at source. 3 ITA No.541/Nag/2016 M/s. Balaji Ventures Pvt. Ltd. vs. DCIT 3)The Id. DCIT and Hon'ble CIT Appeal is not justified in levying the interest u/s. 206C(7) of the I.T. Act when the assessee is not required to collect tax at source. 4)The Id. DCIT and Hon'ble CIT Appeal is not justified in considering the fact that the assessee is not required to collect the tax at source as the transactions of the assessee is not at 1 st Point sale. 5)Any other ground of appeal at the time of hearing with prior approval of the Hon'ble Bench.” 5.During the pendency of the present appeal, an application for additional evidence under Rule 29 of the ITAT Rules has been filed by the assessee on 27.04.2022 by producing Form No.27BA of two parties. The Ld. Counsel for the assessee submitted that now the assessee has received the certificate from Chartered Accountant in the prescribed Form No.27BA in accordance with proviso to Section 206C(6A) of the Act, therefore sought permission to produce the additional Evidence before us. 6. The Form No.27BA of two parties (mentioned supra) produced by the Assessee are admissible under law and the same are relevant for deciding the issue under consideration, since the same was not available with the assessee to produce the same authorities below, filed an application to produce the same before us as additional evidence. In our opinion, the assessee has made sufficient cause to admit the additional evidence, accordingly we allow the assessee to produce the documents as additional evidence. 4 ITA No.541/Nag/2016 M/s. Balaji Ventures Pvt. Ltd. vs. DCIT 7.We have heard both the parties, perused the materials on record and gave our thoughtful consideration. As per section 206C(6A) of the Act, the assessee will not be treated as ‘assessee in default’ if the buyer has furnished his return with the tax payment thereon by incorporating all its purchase and certificate to that effect from an Accountant in the prescribed Form No.27BA. The proviso to Section 296C (6A)read as follows: "(6A) If any person responsible for collecting tax in accordance with the provisions of this section does not collect the whole or any part of the tax or after collecting, fails to pay the tax as required by or under this Act, he shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of the tax: Provided that any person 23 [***] responsible for collecting tax in accordance with the provisions of this section, who fails to collect the whole or any part of the tax on the amount received from a buyer or licensee or lessee or on the amount debited to the account of the buyer or licensee or lessee shall not be deemed to be an assessee in default in respect of such tax if such buyer or licensee or lessee- (i)has furnished his return of income under section 139; (ii)has taken into account such amount for computing income in such return of income; and (iii)has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed:" 8. In view of the above, since the Form No.27BA of two parties produced as Additional evidence by the Assessee has been allowed to be produced, we set aside the impugned order to the file of Ld. Assessing Officer to examine the facts in the light of the above discussions and the additional evidence produced by the 5 ITA No.541/Nag/2016 M/s. Balaji Ventures Pvt. Ltd. vs. DCIT assessee and pass order in accordance with law. The assessee is hereby directed to cooperate with the assessment proceedings. Accordingly, we allow the grounds of appeal for statistical purposes. 9.In result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the Open Court on this 8 th Day of June, 2022. Sd/- Sd/- (VIKRAM SINGH YADAV) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 08/06/2022 PK/Sps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT 6. Guard File True Copy By Order Assistant Registrar, Income Tax Appellate Tribunal, Nagpur Bench, Nagpur