Jodhpur Development Authority, JODHPUR V. ITO, JODHPUR

ITA 545/JODH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54374 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-11-2011
• Assessment Year: 2009-2010
• Appeal Filed On: 12-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR (BEFORE SHRI R.K. GUPTA AND SHRI .N.L. KALR A ) ITA NO.545/JU/2009 ASSESSMENT YEAR : 2009-10 TAN: JDHJO 3145C M/S. JODHPUR DEVELOPMENT AUTHORITY VS. THE ITO FORMERLY UIT, JODHPUR TDS-2, JODHPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY: SHRI SUNIL MATHUR DATE OF HEARING: 29-11-2011 DATE OF PRONOUNCEMENT: 09-12-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD.CIT(A), JODHPUR DATED 20-07-2009 FOR THE ASSESSMENT YEAR 2009-10. 2.1 THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E AS UNDER:- (1) THAT ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE, THE LD. AUTHORITIES BELOW HAVE ERRED IN:- (I) NOT PROVIDING AND ADEQUATE OPPORTUNITY OF BEING HEARD AND EVEN NO PROPER NOTICE WAS ISSUED. (II) NOT TAKING INTO THE ACCOUNT OF CORRECT FINGERS OF RESPECTIVE PAYMENTS AND TAX DEDUCTION THEREON AND T HEREBY ERRED IN PASSING/ UPHOLDING THE ORDER OF ASSESSMENT OF TAX U/S 201/201(1A) OF THE INCOME TAX ACT WHICH ACTION OF LOWER AUTHORITIES IS ILLEGAL, BAD IN LAW AND IS ARB ITRARY ALSO. 2.2 BEFORE THE LD.CIT(A), IT WAS SUBMITTED THAT THE AO HAS NOT GIVEN PROPER OPPORTUNITY TO THE ASSESSEE. IT WAS POINTED OUT THA T THE AO FIXED THE DATE OF HEARING ON 9- 03-2009 BY NOTICE DATED 4-3-2009 AND THEREFORE, THE ASSESSEE WAS NOT PROVIDED ADEQUATE OPPORTUNITY. THE LD.CIT(A) HAS MENTIONED IN HIS ORD ER THAT THE ASSESSEE FILED THE WRITTEN 2 SUBMISSIONS AND ADMITTED THE DEFAULT BEFORE THE AO. IT WAS EXPLAINED THAT THE SAME HAS OCCURRED DUE TO LACK OF FUNDS AND CHANGE IN THE CON STITUTION OF THE BODY. THE LD.CIT(A) FURTHER OBSERVED THAT THE ASSESSEE HAS NOT GIVEN AN Y SUBMISSIONS ON THE ISSUE RAISED IN THE GROUNDS OF APPEAL. THERE IS NOTHING IN THE WRITTEN SUBMISSIONS TO SAY THAT LEVY OF TDS AND INTEREST WAS WRONG AND UNJUSTIFIED. 2.3 WE HAVE HEARD BOTH THE PARTIES. THE HON'BLE APE X COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE (P) LTD. VS CIT , 293 ITR 226 HE LD THAT THE PAYMENT OF TDS CANNOT BE RAISED AGAINST THE PAYER IN CASE THE PAYEE HAS P AID THE TAX ON THE AMOUNT RECEIVED FROM THE PAYER ON WHICH TDS WAS TO BE DEDUCTED. ONE WILL HAVE TO CONSIDER THE LIABILITY OF INTEREST U/S 201(1A) WHEN THE PAYEE HAS DEPOSITED T HE TAX. IN THIS CASE, THE AO HAS RAISED THE DEMAND OF AROUND RS. 1.98 CRORES. SINCE THE DEC ISION OF HON'BLE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE (P) LTD. VS C IT (SUPRA) IS BINDING, THEREFORE, WE FEEL THAT THE ISSUE OF CHARGING OF TDS U/S 201 AND INTEREST U/S 201(1A) IS RESTORED BACK ON THE FILE OF THE AO. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09- 12-2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JODHPUR DATED: 09/12/2011 MISHRA COPY TO: 1. M/S. JODHPUR DEVELOPMENT AUTHORITY, JODHPUR 2. THE ITO, WARD- TDS-2, JODHPUR 3.THE LD. CIT (A) BY ORDER 4.THE CIT 5.THE D/R 6.THE GUARD FILE (ITA NO. 545/JU/09) A.R.. ITAT: JODHPUR 3