THE DISTRICT MAGISTRATE, UTTARKASHI V. ITO, TDS, HARIDWAR

ITA 5445/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3186 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 25-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: G: NEW DELHI) BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NOS.- 5445, 5446, 5447/DEL/2017 (ASSESSMENT YEARS: 2013-14, 2014-15 AND 2015-16) THE DISTRICT MAGISTRATE OFFICER IN CHARGE/DDO, FOR THE DISTRICT, MAGISTRATE, COLLECTRATE OFFICE, UTTARKASHI, UTTARAKHAND, PIN- 249 193 VS. ITO, TDS, HARIDWAR TAN NO: MRTD01328F APPELLANT RESPONDENT ASSESSEE BY : SH. RAJIV NANDA, STANDING COUNSEL REVENUE BY : SH. N.K. BANSAL, SR. DR ORDER PER: ANADEE NATH MISSHRA, AM THESE THREE APPEALS ARE FILED AGAINST SEPARATE ORD ERS EACH DATED 23.05.2017 OF COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A) FOR SHORT], DEHRADUN IN APPEAL NOS. 487, 488 AND 489/CIT(A)/DDN /2015-16. THE GROUNDS OF APPEAL ARE AS UNDER: GROUNDS OF APPEAL IN ITA NO. 5445/DEL/2017AGAINST A PPEAL NO. 487/CIT(A)/DDN/2015-16 FOR AY 2013-14 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN SUSTAINING THE DEMAND OF RS. 3,46,363/- SOLELY ON BASIS THAT THE A SSESSEE HAS MADE DEFAULT ON ACCOUNT OF TAX THAT WAS FAILED TO BE DED UCTED. ITA NOS.- 5445, 5446, 5447/DEL/2017 THE DISTRICT MAGISTRATE PAGE 2 OF 6 GROUNDS OF APPEAL IN ITA NO. 5446/DEL/2017 AGAINST APPEAL NO. 488/CIT(A)/DDN/2015-16 FOR AY 2014-15 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN SUSTAINING THE DEMAND OF RS. 3,53,069/- SOLELY ON BASIS THAT THE A SSESSEE HAS MADE DEFAULT ON ACCOUNT OF TAX THAT WAS FAILED TO BE DED UCTED. GROUNDS OF APPEAL IN ITA NO. 5447/DEL/2017AGAINST A PPEAL NO. 489/CIT(A)/DDN/2015-16 FOR AY 2015-16 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN SUSTAINING THE DEMAND OF RS. 3,11,930/- SOLELY ON BASIS THAT THE A SSESSEE HAS MADE DEFAULT ON ACCOUNT OF TAX THAT WAS FAILED TO BE DED UCTED. 2. AS SIMILAR ISSUES ARE INVOLVED, THE THREE APPEALS ARE HEREBY DISPOSED OFF THROUGH THIS CONSOLIDATED ORDER. THE ASSESSING OFFI CER(AO FOR SHORT) PASSED SEPARATE ORDERS U/S 201(1)/201(1A) OF INCOME TAX AC T(IT ACT FOR SHORT) ON 30.12.2015 FOR ASSESSMENT YEAR(AY FOR SHORT)S 2 013-14, 2014-15 AND 2015- 16 RAISING DEMANDS OF RS. 3,46,363/- FOR AY 2013-14 , RS. 3,53,069/- FOR AY 2014-15 AND RS. 3,11,930/- FOR AY 2015-16; THE BREA KUP OF WHICH IS SUMMARIZED IN THE FOLLOWING TABULAR FORM AS FOLLOWS : SL. NO. ASSESSMENT YEAR SHORT CHARGE OF TAX DEDUCTED AT SOURCE INTEREST U/S 201(1A) OF IT ACT TOTAL SHORT CHARGE INCLUDING INTEREST 1 2013 - 14 2,59,989/ - 86,374/ - 3,46,363/ - 2 201 4 - 1 5 2,91,833/ - 61,236/ - 3,53,069/ - 3 2015 - 16 2,86,190/ - 26,740/ - 3,11,930/ - 2.1. THESE ORDERS U/S 201(1)/201(1A) OF IT ACT WERE PAS SED BY THE AO AFTER EXAMINATION OF THE RECORDS OF THE OFFICE OF THE DIS TRICT MAGISTRATE, UTTARKASHI (THE ASSESSEE) DURING WHICH AO OBSERVED THAT NO QUA RTERLY STATEMENT U/S 200(3) OF IT ACT IN FORM NO. 26Q HAD BEEN FILED BY THE ASSESSEE. EVEN THOUGH THE ASSESSEE HAD PAID HUGE AMOUNT TO DISTRICT GOVER NMENT COUNCILS AS PROVISIONAL FEES FOR THE YEARS UNDER REFERENCE, THE REAFTER A VERIFICATION LETTER WAS ISSUED BY THE AO TO THE ASSESSEE TO FURNISH INF ORMATION WITH REGARD TO ITA NOS.- 5445, 5446, 5447/DEL/2017 THE DISTRICT MAGISTRATE PAGE 3 OF 6 DEDUCTION OF TAX ON PAYMENTS MADE TO DISTRICT GOVER NMENT COUNCILS. ON RECEIPT OF THE REPLIES THE AO THAT PROVISIONAL FEES IN EXCESS OF RS. 30,000/- HAD BEEN PAID BY THE ASSESSEE TO DIFFERENT PERSONS FOR THE YEARS UNDER REFERENCE AND NO TAX HAVE BEEN DEDUCTED AT SOURCE U/S 194J(1) (A) OF IT ACT. 2.2. AGGRIEVED BY THE AFORESAID ORDERS OF THE AO U/S 20 1(1)/201(1A) OF IT ACT THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). VI DE AFORESAID SEPARATE ORDERS EACH DATED 23.05.2017 OF THE LD. CIT(A) THE APPEALS FILED BY THE ASSESSEE WERE DISMISSED. 2.3. AGGRIEVED AGAIN, THE ASSESSEE HAS FILED THESE PRESE NT APPEALS IN INCOME TAX APPELLATE TRIBUNAL(ITAT FOR SHORT). THE APPEA LS FILED BY THE ASSESSEE IN ITAT ARE LATE BY FOURTEEN DAYS HAVING REGARD TO TIM E PRESCRIBED U/S 253(3) OF IT ACT. THE ASSESSEE HAS SUBMITTED PETITION FOR CONDON ATION OF DELAY IN FILING OF THE APPEAL, AS PER SECTION 253(5) OF IT ACT. THE RE LEVANT PORTION OF THE PETITION IS REPRODUCED AS UNDER: 1. THAT THE APPEAL FILED BY THE ASSESSEE BEFORE THE C OMMISSIONER OF INCOME TAX (APPEALS), DEHRADUN WAS DISPOSED OF BY O RDER DATED 23.05.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), DEHRADUN. 2. THAT THE TIME FOR FILING OF THE APPEAL BEFORE THE T RIBUNAL WAS TO EXPIRE ON 11.08.2017. 3. THAT THE PLACE UTTRAKHASHI IS SITUATED IN THE REMOT E HILLS OF GARHWAL REGION IN THE STATE OF UTTARAKHAND. 4. THAT THE ONLY MEANS OF CONVEYANCE IS THROUGH ROAD T RANSPORT AND DURING THE MONTHS OF JUNE, JULY AND AUGUST 2017 THE DISTRICT WITNESSED MULTIPLE NATURAL CALAMITIES AND LANDSLIDES. 5. THAT AT UTTARAKHASHI NO PROFESSIONAL RESOURCE IS AV AILABLE IN RESPECT OF INCOME TAX MATTERS. 6. THAT ON 12TH AUGUST 2017, ON THE IMPROVEMENT OF CLI MATIC CONDITIONS A STAFF WAS DEPUTED TO TRAVEL TO DEHRADUN AND GET T HE APPEAL AND OTHER ENCLOSURES DRAFTED. THEREAFTER THE SAID DOCUM ENTS REACHED UTTARAKHASHI ON 17TH AUGUST 2017 FOR NECESSARY SIGN ATURE AND ACCORDINGLY WERE DISPATCHED BACK TO DEHRADUN TO REA CH THERE BY 21ST AUGUST 2017. ITA NOS.- 5445, 5446, 5447/DEL/2017 THE DISTRICT MAGISTRATE PAGE 4 OF 6 7. THAT THE MEMO OF APPEAL IS BEING PRESENTED TODAY I. E. 23.08.2017 TO THE OFFICE OF THE TRIBUNAL. IN VIEW OF THE AFORESAID REASONS, THE DELAY IN FILI NG OF APPEAL IN ITAT IS CONDONED, AND THE THREE APPEALS ARE ADMITTED U/S 25 3(5) OF IT ACT. 3. IN THE COURSE OF APPELLATE PROCEEDINGS IN ITAT THE FOLLOWING ADDITIONAL EVIDENCES WERE FILED BY THE ASSESSEE: S. NO. DESCRIPTION 1 INCOME TAX RETURN FILED BY THE ASSESSEE PREM SING H BHANDARI ON 30.07.2013 IN AY 2013-14 2 INCOME TAX RETURN FILED BY THE ASSESSEE HUKUM SIN GH RAWAT ON 21.03.2013 IN AY 2013-14 3 INCOME TAX RETURN FILED BY THE ASSESSEE GAMBHIR S INGH CHAUHAN ON 16.03.2013 IN AY 2013-14 4 INCOME TAX RETURN FILED BY THE ASSESSEE DEVENDRA SINGH NEGI ON 20.03.2013 IN AY 2013-14 5 INCOME TAX RETURN FILED BY THE ASSESSEE RAJENDRA PRASAD JAGURI ON 28.03.2013 IN AY 2013-14 6 INCOME TAX RETURN FILED BY THE ASSESSEE ANIL CHAN D RAMOLA ON 27.03.2014 IN AY 2014-15. 7 INCOME TAX RETURN FILED BY THE ASSESSEE HUKUM SIN GH RAWAT ON 27.03.2014 IN AY 2014-15 8 INCOME TAX RETURN FILED BY THE ASSESSEE DHARMENDR A SINGH BISHT ON 21.03.2014 IN AY 2014-15 9 INCOME TAX RETURN FILED BY THE ASSESSEE GAMBHIR S INGH CHAUHAN IN AY 2014-15 10 INCOME TAX RETURN FILED BY THE ASSESSEE DEVENDRA SINGH NEGI IN AY 2014-15 11 INCOME TAX RETURN FILED BY THE ASSESSEE RAJESH K UMAR IN AY 2014-15 12 INCOME TAX RETURN FILED BY THE ASSESSEE RAJENDRA PRASAD JAGURI ON 27.03.2014 IN AY 2014-15 13 INCOME TAX RETURN FILED BY THE ASSESSEE MAHENDRA SINGH PANWAR IN AY 2014-15 14 INCOME TAX RETURN FILED BY THE ASSESSEE KRITI PR ASAD BHATT ON 27.03.2014 IN AY 2014-15. 15 INCOME TAX RETURN FILED BY THE ASSESSEE ANIL CHA ND RAMOLA IN AY 2015-16. 16 INCOME TAX RETURN FILED BY THE ASSESSEE HUKUM SI NGH RAWAT ON 04.03.2015 IN AY 2015-16. 17 INCOME TAX RETURN FILED BY THE ASSESSEE DHARMEND RA SINGH BISHT ON 25.03.2015 IN AY 2015-16. 18 INCOME TAX RETURN FILED BY THE ASSESSEE RAJESH K UMAR IN AY 2015-16 19 INCOME TAX RETURN FILED BY THE ASSESSEE RAJENDRA PRASAD JAGURI ON 24.03.2015 IN AY 2015-16 ITA NOS.- 5445, 5446, 5447/DEL/2017 THE DISTRICT MAGISTRATE PAGE 5 OF 6 3.1. AT THE TIME OF HEARING BEFORE US THE LD. COUNSEL FO R ASSESSEE PRAYED FOR ADMISSION OF THE AFORESAID ADDITIONAL EVIDENCES ON THE FOLLOWING GROUND: THE APPELLANT WISHES TO PLACE ON RECORD THE ACCOM PANYING DOCUMENTS. THE SAID DOCUMENTS WERE NOT IN POSSESSION OF THE AP PELLANT EARLIER. THUS THE SAME WERE NOT PLACED BEFORE EITHER THE AO OR TH E CIT(A). 3.2. AT THE TIME OF HEARING BEFORE US THE LD. COUNSEL FO R ASSESSEE ONCE AGAIN REITERATED THE PRAYER FOR ADMISSION OF ADDITIONAL E VIDENCES IN VIEW OF THE AFORESAID GROUNDS. THE LD. DEPARTMENTAL REPRESENTAT IVE (DR FOR SHORT) RELIED ON THE ORDERS OF THE AO AND THE LD. CIT(A). 3.3. WE HAVE HEARD BOTH SIDES AND WE HAVE ALSO PERUSED T HE MATERIALS ON RECORD. IN VIEW OF THE GROUNDS STATED BY THE ASSESS EE FOR ADMISSION OF THE AFORESAID ADDITIONAL EVIDENCES; WE ADMIT THE ADDITI ONAL EVIDENCES. AS THE ADDITIONAL EVIDENCES FILED DURING THE COURSE OF APP ELLATE PROCEEDINGS BY THE ASSESSEE WERE NOT AVAILABLE TO THE LOWER AUTHORITIE S, NAMELY THE AO AND THE CIT(A), WE RESTORE THE ISSUES IN DISPUTE TO THE FIL E OF THE AO WITH THE DIRECTION TO PASS DE-NOVO ORDERS U/S 201(1)/201(1A) OF IT ACT AS PER LAW AFT ER DUE CONSIDERATION OF THE ADDITIONAL EVIDENCES NOW FILED IN ITAT BY THE ASSESSEE, AND AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD. THUS THE IMPUGNED ORDERS OF THE LD. CIT(A) ARE HEREBY SET ASIDE AND D ISPUTED ISSUES ARE RESTORED TO THE FILE OF THE AO WITH THE AFORESAID DIRECTIONS. I N THE RESULT THESE THREE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.02.2019. SD/- SD/- (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED: 26.02.2019 BIDHAN ITA NOS.- 5445, 5446, 5447/DEL/2017 THE DISTRICT MAGISTRATE PAGE 6 OF 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER