The DGM, BSNL, NTR, Jalandhar V. The Income Tax Officer, Jalandhar

ITA 562/ASR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0803 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 29-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: RAVISH SOOD
• Keywords: Opportunity of being heard
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER [ I.T.A NOS. 561 & 562 (ASR)/2013 ASSESSMENT YEARS: 2009-10 & 2010-11 THE DGM, BSNL, NTR, MTCE, MASTER TARA SINGH NAGAR, JALANDHAR. PAN: AABCB5576G VS. ITO, TDS-II JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAVISH SOOD (ADV.) RESPONDENT BY: SH. S.S.KANWAL (DR.) DATE OF HEARING: 04.05. 2016 DATE OF PRONO UNCEMENT: 05.05.2016 ORDER PER T. S. KAPOOR (AM): THESE ARE TWO APPEALS FILED BY ASSESSEE AGAINST TH E ORDER OF CIT(A), BOTH DATED 18.04.2013 FOR ASST. YEAR 2009-10 & 2010 -11. 2. THE APPEALS WERE EARLIER DISPOSED OFF BY A CONSO LIDATED ORDER IN ITA NOS. 559 TO 562 VIDE ORDER DATED 12.02.2015. HOWEVE R, ON AN APPLICATION FILED BY ASSESSEE THE GROUND NOS. 5 & 6 IN ITA NO. 561(ASR)/2013 AND GROUND NO.4 IN ITA NO.562(ASR)/2013 WERE RECALLED F OR RE-ADJUDICATION ITA NOS. 561 & 562 (ASR)/2013 ASST. YEARS: 2009-10 & 2010-11 2 VIDE TRIBUNAL ORDER DATED 11.3.2016 AND THEREFORE, THE LEARNED AR IS BEFORE US FOR ARGUING THESE GROUNDS. 3. AT THE TIME OF HEARING, THE LEARNED AR EXPLAINED THE FACTS OF THE CASE AND SUBMITTED THAT GROUND NOS. 5 & 6 IN ITA N O.561 AND GROUND NO.4 IN ITA NO.562(ASR)/2013 ESCAPED FOR ADJUDICATI ON BY THE TRIBUNAL AND THEREFORE, THE ORDER DATED 12.2.2015 WAS RECALL ED TO THAT EXTENT. THE LEARNED AR SUBMITTED THAT GROUND NO.5 IN ITA NO.561 AND GROUND NO.4 IN 562 ARE SIMILAR IN NATURE AND THE GRIEVANCE OF T HE ASSESSEE WAS WITH THE ACTION OF LEARNED CIT(A) BY WHICH HE HAD UPHELD THE ADDITION MADE BY ASSESSING OFFICER BY HOLDING THE PAYMENT MADE TO M/S. MOHAN DEVI CANCER HOSPITAL AS COVERED BY THE PROVISIONS OF SEC TION 194J WHEREAS THE FACT REMAINS THAT THE MEDICAL EXPENSES WERE REIMBUR SED TO EMPLOYEE OF ASSESSEE AND THEREFORE, THE PROVISIONS OF SECTION 1 94J WERE NOT APPLICABLE AND THE ASSESSEE COULD NOT BE SAID TO BE ASSESSEE IN DEFAULT U/S 201(1) & 201(1A) OF THE ACT. 4. AS REGARDS GROUND NO.6 IN ITA NO.561(ASR)/2013, THE LEARNED AR SUBMITTED THAT THE PAYMENTS MADE TO M.S.T.C WERE AL SO NOT LIABLE FOR TAX DEDUCTION AS M.S.T.C ON BEHALF OF ASSESSEE HAD SOLD CERTAIN SCRAP AND HAD MADE PAYMENTS TO ASSESSEE AFTER DEDUCTION OF IT S COMMISSION AND THEREFORE, SUCH PAYMENTS WERE NOT SUBJECTED TO TDS. WITHOUT PREJUDICE IT WAS SUBMITTED THAT M.S.T.C BEING A PUBLIC FINANC IAL INSTITUTION THE ITA NOS. 561 & 562 (ASR)/2013 ASST. YEARS: 2009-10 & 2010-11 3 ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS AND ABOVE A LL IT WAS SUBMITTED THAT M.S.T.C ITSELF HAD PAID THE TAX ON THE COMMISS ION DEDUCTED FROM THE PAYMENT DUE TO ASSESSEE AND THEREFORE, AS PER T HE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE (P) LTD. VS. CIT(2007) 293 ITR 226 (SC), THE ASSESSEE CANNOT BE SAID TO BE ASSESSEE IN DEFAULT. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT EARLIER THE APPEALS WERE DISPOSED OFF BY A CONSOLIDATED ORDER IN ITA NOS. 559 TO 562 VIDE ORDER DATED 12.02.2015. GROUND NOS.5 & 6 IN ITA NO.561 AND GROU ND NO.4 IN ITA NO.562 WERE RECALLED FOR ADJUDICATION VIDE ORDER DA TED 11.3.2016 . WE FIND THAT GROUND NO.5 IN ITA 561 AND GROUND NO.4 IN ITA NO.562 ARE SIMILAR WHICH RELATES TO A PAYMENT MADE BY ASSESSEE TO M/S. MOHAN DEVI CANCER HOSPITAL ON BEHALF OF ASSESSEE ON WHICH ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE. THE LEARNED AR ARGUED THAT IN FACT THE PAYMENTS WERE NOT MADE TO M/S. MOHAN DEVI CANCER HOSPITAL AN D RATHER THESE WERE REIMBURSED TO THE EMPLOYEE OF ASSESSEE, THEREF ORE, THE PROVISIONS FOR TAX DEDUCTION WERE NOT APPLICABLE TO THE ASSESS EE. WE FIND THAT THIS BEING A FACTUAL MATTER AND WHICH REQUIRES VERIFICAT ION AT THE END OF ASSESSING OFFICER WHO ON THE BASIS OF SUBMISSIONS O F ASSESSEE WILL DECIDE ITA NOS. 561 & 562 (ASR)/2013 ASST. YEARS: 2009-10 & 2010-11 4 THE MATTER AFRESH. THE ASSESSING OFFICER WILL EXAMI NE AS TO WHETHER THE PAYMENTS WERE MADE TO THE HOSPITAL DIRECTLY OR WERE REIMBURSED TO THE EMPLOYEE AND WILL PASS THE ORDER ACCORDINGLY KEEPIN G IN VIEW THE FACTS AND EVEN IF THE PAYMENTS WERE DIRECTLY MADE TO M/S. MOHAN DEVI CANCER HOSPITAL, THE ASSESSING OFFICER WILL DECIDE THE ISS UE IN VIEW OF THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE (P) LTD. VS. CIT(2007) 293 ITR 226 (SC) . IN VIEW OF THE GROUND NOS. 5 IN ITA NO. 561(ASR)/2013 AND GROUND NO.4 IN ITA NO.562(ASR)/2013 ARE ALLOWED FOR STATISTICAL PURPOS ES. 7. AS REGARDS GROUND NO.6 IN ITA NO.561, WE FIND TH AT THE ASSESSEE HAS CLAIMED THAT M.S.T.C WAS A PUBLIC FINANCIAL INS TITUTION AND M.S.T.C HAD SOLD SCRAP ON BEHALF OF ASSESSEE AND HAD MADE P AYMENTS TO ASSESSEE AFTER DEDUCTION OF THEIR COMMISSION AND THERE WAS N O OCCASION AVAILABLE TO THE ASSESSEE TO DEDUCT TAX. MOREOVER, IT WAS SUB MITTED THAT M.S.T.C HAD DECLARED SUCH COMMISSION INCOME IN ITS RETURN O F INCOME AND THEREFORE, KEEPING IN VIEW THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE O F HINDUSTAN COCA COLA BEVERAGE (P) LTD. VS. CIT(2007) 293 ITR 226 (SC) , THE ASSESSEE CANNOT BE SAID TO BE ASSESSEE IN DEF AULT. WE FIND THAT THIS MATTER ALSO NEEDS VERIFICATION AT THE END OF A SSESSING OFFICER, THEREFORE, GROUND NO.6 IN ITA 561 IS ALSO REMITTED BACK TO THE ASSESSING OFFICER WHO WILL DECIDE THE ISSUE AFRESH KEEPING IN VIEW THE ABOVE JUDGMENT. IN VIEW OF THE ABOVE GROUND NO.6 IN ITA 5 61 IS ALSO ALLOWED ITA NOS. 561 & 562 (ASR)/2013 ASST. YEARS: 2009-10 & 2010-11 5 FOR STATISTICAL PURPOSES. NEEDLESS TO SAY THE ASSES SEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD. 8. IN VIEW OF THE ABOVE, THE ABOVE BOTH APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH MAY, 2016 SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05.05.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER