The Dy. Commr. Income Tax, TDS Circle, RAJKOT-GUJARAT V. M/s ASR Multi Metal Pvt. Ltd., Mundra (Kutch)

ITA 581/RJT/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2366 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHAKARAVARTY
• Assessee Lawyers: VIVEK VISHNOI
• Keywords: Procedural lapse

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] , ! , ! #$ BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.581/RJT/2014 ( / ASSESSMENT YEAR : 2009-10) DEPUTY CIT TDS CIRCLE, RAJKOT / VS. M/S.ASR MULTIMETAL PVT.LTD., SURVEY NO.394/2-400, VILL.CHHADAVADA RAL.BHACHAU, SAMKHIYALI KUTCH !) ./ ./ PAN/GIR NO. AAECA 9439 L ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+. / APPELLANT BY : SHRI V.K. CHAKARAVARTY, DR ,-)+/. / RESPONDENT BY : SHRI VIVEK VISHNOI, C.A. 0/ / DATE OF HEARING 29/12/2015 12 / / DATE OF PRONOUNCEMENT 20/01/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, RAJKOT [CIT(A) IN SHORT] DATED 21/7/2014 PERTAINING TO ASSESSMENT YEAR (AY) 2009-10. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ITA NO.581/RJT/ 2014 DY.CIT VS. M/S.ASR MULTIMETAL PVT.LTD. ASST.YEAR 2009-10 - 2 - 1. THE LD.CIT(A) HAS ERRED IN LAW AS WELL AS FACTS OF THE CASE IN DIRECTING NO TO TREAT THE DEDUCTOR IN DEFAULT FOR N ON-COLLECTION OF TAX AT SOURCE ON THE SALE OF SCRAP OF RS.1,63,3 2,003/- TO M/S.ELECTROTHERM INDIA LTD. AND RS.57,27,590/- TO M /S.MONO STEEL INDIA LTD. ON THE BASIS OF FORM NO.27C FILED BY THE DEDUCTOR BEFORE THE CIT(A)-II, RAJKOT. 2. THE LD.CIT(A) ERRED IN NOT CONSIDERING THE REMAND R EPORT SUBMITTED BY THE ASSESSING OFFICER WHEREIN THE A.O. HAS DOUBTED THE AUTHENTICITY OF SUCH CERTIFICATES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) OUGHT TO HAVE DIRECTED THE A.O. TO VERIFY THE AUTHENTICITY OF THE CERTIFICATE IN FORM NO.27C. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASS ESSING OFFICER. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 6. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.C IT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE REST ORED TO THE ABOVE EFFECT. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT, A SUR VEY U/S.133A OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS CARRIED OUT AT THE BUSINESS PREMISE OF THE ASSESSEE ON 08/1 2/2009. DURING THE COURSE OF SURVEY, IT WAS NOTICED THAT THE ASSESSEE HAD MADE DEFAULT U/S.192, 194-C AN 194-J OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER (AO IN SHORT) PASSED AN ORDER U/S.206C(6A) AND 206( C(7) OF THE ACT, THEREBY THE AO HELD THAT THE ASSESSEE DEEMED TO BE IN DEFAULT WITHIN THE MEANING OF THE PROVISIONS OF SECTION 260C(6A) FOR R S.5,88,235/- AND INTEREST PAYABLE THEREON U/S.206C(7) OF RS.2,35,970 /-, TOTALING TO RS.8,24,205/- PAYABLE BY THE ASSESSEE. THE ASSE SSEE BEING AGGRIEVED ITA NO.581/RJT/ 2014 DY.CIT VS. M/S.ASR MULTIMETAL PVT.LTD. ASST.YEAR 2009-10 - 3 - BY THE ASSESSMENT ORDER, PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE P ARTLY ALLOWED THE APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), NOW THE REVENUE IS IN APPEAL BEFORE US. 3. GROUND NOS.1 TO 3 ARE INTER-CONNECTED AND, THERE FORE, THE SAME ARE DECIDED TOGETHER. THE LD.SR.DR SUPPORTED THE ORDER OF THE AO AND SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN D ELETING THE ADDITION. 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE S UPPORTED THE ORDER OF THE LD.CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) HAS DECIDED THE ISSUE IN PARA-5.5 OF HIS ORDER, BY OBSERVING AS UNDER:- 5.5. I HAVE CAREFULLY CONSIDERED THE CONTENTION OF THE APPELLANT, THE ORDER PASSED BY THE A.O. AND THE REMAND REPORT SUBM ITTED BY THE A.O. MY FINDING ARE AS UNDER:- 1. THERE IS NO DOUBT THAT THE SALE MADE TO M/S.NEELKA NTH CONCAST P.LTD. OF RS.2,87,32,500/- IS THAT OF IRON ORE PELL ETS. THE APPELLANT AND THE A.O. ALSO AGREE ON THE POINT THAT THIS IS N OT SCRAP AND IS NOT COVERED U/S.206C. THE ONLY BONE OF CONTENTION IS THAT, ACCORDING TO THE A.O., THIS MATTER WAS NOT RAISED I N PROCEEDINGS U/S.201(1) AND THUS NOW SHOULD OT BE ADMITTED UNDER RULE 46A. I DO NOT AGREE WITH THE A.O. ON THIS ISSUE. THE SALE TO M/S.NEELKANTH CONCAST P. LTD. TOOK PLACE ON 26/2/2009. THE SURVE Y TOOK PLACE ON 8/12/2009. THE BILL AND THE LEDGER ENTRIES HAVE CL EARLY SHOWN THE SALES AS IRON ORE PELLETS. THE A.O. HIMSELF SHOULD HAVE VERIFIED U/S.201(1) PROCEEDINGS AS TO WHETHER THIS WAS COVER ED UNDER SCRAP OR NOT. THUS, IN MY OPINION, THIS ISSUE HAS NOT BE EN RAISED FOR THE ITA NO.581/RJT/ 2014 DY.CIT VS. M/S.ASR MULTIMETAL PVT.LTD. ASST.YEAR 2009-10 - 4 - FIRST TIME AND PROVISIONS OF RULE 46A ARE NOT APPLI CABLE. IN VIEW OF THE CLEAR FINDINGS GIVEN BY THE A.O., THIS SALE IS CONSIDERED TO BE OUT OF THE AMBIT OF S.206C. THE A.O. IS DIRECTED TO EX CLUDE THIS WHILE CALCULATING THE DEFAULT OF TCS ON THE PART OF THE A PPELLANT. 2. IN RESPECT OF THE SALE MADE TO M/S.ELECTROTHEM INDI A LTD. & M/S.MONOSTEEL INDIA LTD., THOUGHT THE APPELLANT HAS FILED FORM NO.27C AS PRESCRIBED UNDER RULE 37C, THE OBJECTION OF THE A.O. IS THAT IT HAS NOT BEEN FILED BEFORE THE JURISDICTIONA L CIT, I.E. CIT(TDS), AHMEDABAD. THE SECOND OBJECTION IS THAT THE FORM H AS BEEN FILED BEYOND TIME AND THUS THE APPELLANT CANNOT ESCAPE TH E RIGORS OF S. 206C. BOTH THE ISSUES ARE MINOR ABERRATIONS IN MY OPINION. THERE IS NO DOUBT THAT FORM 27C HAS BEEN OBTAINED BY THE APPELLANT. IT IS HOWEVER FILED BEFORE CIT-III, RAJKOT AND NOT CIT (T DS), AHMEDABAD. SIMILARLY, THERE IS A DELAY OF ABOUT 10 DAYS AND 6 DAYS RESPECTIVELY IN FILING OF THE FORM BEFORE THE CIT. IN MY OPINION, FILING OF THE FORM BEFORE THE CIT-III, RAJKOT INSTE AD OF CIT (TDS), AHMEDABAD IS ONLY A PROCEDURAL LAPSE AND SHOULD BE PARDONED. THE APPELLANT IS DIRECTED TO FILE THE FORM BEFORE T HE CIT (TDS), AHMEDABAD IN FULFILLMENT OF THE REQUIREMENT UNDER R ULE 37C. SIMILARLY, THE MINOR DELAY OF 10 DAYS & 6 DAYS IN FILING OF THE FORM IS CONDONED. THE APPELLANT IS THEREFORE NOT HELD T O BE IN DEFAULT IN RESPECT OF TCS ON THE SALE MADE TO M/S.ELECTROTHERM INDIA LTD. AND MONOSTEEL INDIA LTD. THE A.O. IS DIRECTED TO EXCLU DE THE SALE MADE TO THESE COMPANIES WHILE COMPUTING THE TCS DEFAULT. 4.1. THE ABOVE FINDING ON FACT IS NOT REBUTTED BY THE REVENUE. THE LD.CIT(A) HAS GIVEN A FINDING ON FACT THAT THE ASSE SSEE HAS FILED FORM NO.27 AS PRESCRIBED UNDER RULE 37C OF THE INCOME TA X RULES, 1962. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE WI TH THE ORDER OF THE LD.CIT(A), SAME IS HEREBY UPHELD. THUS, GROUND NO S.1 TO 3 OF REVENUES APPEAL ARE REJECTED. 5. GROUND NOS.4 TO 6 ARE GENERAL IN NATURE WHICH RE QUIRE NO INDEPENDENT ADJUDICATION. ITA NO.581/RJT/ 2014 DY.CIT VS. M/S.ASR MULTIMETAL PVT.LTD. ASST.YEAR 2009-10 - 5 - 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 20 TH DAY OF JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ! ! ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20 / 01 /2016 . .,.. ./ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 6 7 / CONCERNED CIT 4. 7 ( ) / THE CIT(A)-II, RAJKOT 5. 9:, , , /DR,ITAT,RAJKOT 6. :EFG0 / GUARD FILE. / BY ORDER, -9, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) & ' , / ITAT, RAJKOT 1. DATE OF DICTATION 13.1.16 (DICTATION-PAD 3-- P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..18.1.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.20.1.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.1.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER