ITO, Delhi V. M/s. In Trading P. Ltd., Gurgaon

ITA 5882/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6491 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 29-12-2016
• Assessment Year: misc
• Appeal Filed On: 01-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AMRIT LAL
• Keywords: TDS
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 133A; 194C; 201(1); 194J

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI C.M.GARG , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI , ACCOUNTANT MEMBER I TA NO . 5882 & 5883/DEL/2013 (ASSESSMENT YEAR: 2009 - 10 & 2011 - 12 ) ITO, WARD - 50(1), DELHI VS. IN TRADING P. LTD, 163 - 164, SEC - 4, GURGAON PAN:AABCI0777J (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AMRIT LAL, SR. DR REVENUE BY: NONE DATE OF HEARING 29/12/ 2017 DATE OF PRONOUNCEMENT 09 / 0 3 / 2017 O R D E R PER PRASHANT MAHARISHI , A . M . 1. THESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDER DATED 2308.2012 OF THE LD CIT(A) - XXX, NEW DELHI FOR THE ASSESSMENT YEAR 2010 - 11 AND 2011 - 12. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2010 - 11: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD CIT(A) HAS ERRED IN - 1. DELETING THE DEMAND OF RS.2,42,060/ - HOLDING THAT THE ASSESSEE HAD NOT ADMITTED THE IDS LIABILITY OF RS.12,25,000/ DURING THE SURVEY PROCEEDINGS U/S 133A OF THE I T ACT. 2. HOLDING THAT THE ASSESSEE ADDED BACK THE AMOUNT OF AUDIT FEE OF RS.1,10,300/ - IN ITS INCOME SUO MOTTO AND HENCE, THERE IS NO NEED TO CHARGE IDS ON THIS AMOUNT AND INTEREST OF RS.1430/ - THEREON IGNORING THE FACT THAT OFFERING THE INCOME FOR TAXATION DOES NOT ABSOLVE THE DEDUCTOR FRO M THE LIABILITY U/S 201{1)/201(1A) OF THE I T ACT. 3. HOLDING THAT IDS IS NOT REQUIRED TO BE DEDUCTED U/S 194J AND 194C OF THE I T ACT ON THE PAYMENTS ON WHICH THE DEDUCTOR FAILED TO DEDUCT IDS. 4. IN DELETING THE IDS LIABILITY INCLUDING INTEREST AMOUNTING TO RS .44,24,200/ - ON EXPENSES OF RS.19.50 CR. FOR FY 2010 - 11 AND RS.18.55 CR. FOR FY 2009 - 10. THE LD CIT(A) FAILED TO APPRECIATE THE FACT THAT PARTY - WISE DETAILS WERE NOT FILED AT THE TIME OF PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES GIVEN TO FILE THE SAME. PAGE 2 OF 6 5. DEL ETING THE INTEREST OF RS.3,85,785/ - CORRECTLY COMPUTED AS PER PROVISIONS OF SECTION 201(1A) ON DELAYED SALARY AND NON - SALARY PAYMENTS FOR THE FY 2009 - 10 & 2010 - 11. 6. HOLDING THAT THE AO CAN VERIFY DETAILS BY ACCESING THE DATA FROM THE NSDL SITE AND AO HAS NO T BOTHERED TO VERIFY THE DETAILS. THE LD CIT(A) FAILED TO APPRECIATE THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO SUBMIT THE DETAILS. 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2011 - 12: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD CIT(A) HAS ERRED IN - 1. DELETING THE DEMAND OF RS.2,42,060/ - HOLDING THAT THE ASSESSEE HAD NOT ADMITTED THE TDS LIABILITY OF RS. 12,25,000/ DURING THE SURVEY PROCEEDINGS U/S 133AOFTHE I T ACT. 2. HOLDING THAT THE ASSESSEE ADDED BACK THE AMOUNT OF AUDIT FEE OF RS.1,10,300/ - IN ITS INCOME SUO MOTTO AND HENCE, THERE IS NO NEED TO CHARGE TDS ON THIS AMOUNT AND INTEREST OF RS.1430/ - THEREON IGNORING THE FACT THAT OFFERING THE INCOME FOR TAXATION DOES NOT O BSOLV E THE DEDUCTOR FROM THE LIABILITY U/S 201(1)/201(1A) OF THE IT ACT. 3. HOLDING THAT TDS IS NOT REQUIRED TO BE DEDUCTED U/S 194J AND 194C OF THE I T ACT ON THE PAYMENTS ON WHICH THE DEDUCTOR FAILED TO DEDUCT TDS. 4. IN DELETING THE TDS LIABILITY INCLUDING INTERES T AMOUNTING TO RS.44,24,200/ - ON EXPENSES OF RS.19.50 CR. FOR FY 2010 - 11 AND RS.18.55 CR. FOR FY 2009 - 10. THE LD CIT(A) FAILED TO APPRECIATE THE FACT THAT PARTY - WISE DETAILS WERE NOT FILED AT THE TIME OF PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES GIVEN TO F ILE THE SAME. 5. DELETING THE INTEREST OF RS.3,85,785/ - CORRECTLY COMPUTED AS PER PROVISIONS OF SECTION 201(1A) ON DELAYED SALARY AND NON - SALARY PAYMENTS FOR THE FY 2009 - 10 & 2010 - 11. 6. HOLDING THAT THE AO CAN VERIFY DETAILS BY ACCESING THE DATA FROM THE IMSDL SITE AND AO HAS NOT BOTHERED TO VERIFY THE DETAILS. THE LD CIT(A) FAILED TO APPRECIATE THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO SUBMIT THE DETAILS. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY OF THE GROUNDS OF APPEAL AT THE TIM E OF HEARING. 4. NOW WE FIRST COME TO THE APPEAL NO. 5882/DEL/2013 FILED BY THE REVENUE. 5. THE BRIEF FACTS OF THE CASE IS THAT THE LD ASSESSING OFFICER HAS PASSED AN ORDER U/S 201(1)/201(1A) OF THE INCOME TAX ACT ON 23.03.2012 FOR AY 2009 - 10 AND 2010 - 11, WHEREIN, PURSUANT TO SURVEY U/S 133A OF THE ACT ON 21.01.2011, IT WAS FOUND THAT THE ASSESSEE HAS ADMITTED TO PAY CERTAIN AMOUNT OF TDS WHICH WAS NOT DEPOSITED AND SUCH AMOUNT IS RS. 242060/ - . IT WAS FURTHER NOTED THAT THERE IS A DEFAULT OF SHORT DEDUCTION OF TAX AS PER TAX AUDIT REPORT OF A SUM OF RS. 11030/ - AND THEREFORE, ALONG WITH INTEREST LD ASSESSING OFFICER HAS WORKED OUT TOTAL AMOUNT PAYABLE. FURTHERMORE, IT PAGE 3 OF 6 WAS ALSO NOTED THAT A SUM OF RS. 81183/ - WAS PAID WITHOUT DEDUCTION OF TAX AT SOURCE U/S 19 4C AND 194J OF THE ACT AND CONSEQUENTLY, INTEREST OF RS. 16096/ - WAS WORKED OUT . IT WAS FURTHER FOUND THAT LD ASSESSING OFFICER HAS NOTED THAT ON VARIOUS EXPENDITURE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE AMOUNTING TO RS. 37.40 LAKHS. IT WAS ALSO NOTED TH AT TAX IS NOT DEDUCTED AT SOURCE ON SALARY PAYMENT AT AVERAGE RATE. CONSEQUENTLY, A DEMAND OF RS. 5245174/ - WAS RAISED ON THE ASSESSEE U/S 201(1) AND 201(1A) OF THE ACT. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD CIT(A) ON VARIOUS GROUNDS WHO ALLOWED THE APPEAL OF ASSESSEE AND HELD THAT THE DEDUCTOR COMPANY WAS UNDER THE PROCESS OF CHANGE OF MANAGEMENT AND REGISTERED OFFICE OF THE COMPANY ALSO SHIFTED FROM MANESAR TO OKHLA ON 21.02.2012 AND THESE FACTS WERE NOT CONSIDERED BY THE LD ASSESSING OFFICER. THERE FORE HE NOTED THAT DEDUCTOR HAS DEPOSITED THE TDS ACCORDING TO THE LAW AND IF THERE IS ANY SHORTFALL AFTER VERIFICATION BY THE ITO (TDS) THEN DIRECTED TO CHARGE THE INTEREST AS PER LAW. HENCE, HE ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER O F THE LD CIT(A) REVENUE IS IN APPEAL BEFORE US. 6. THE LD DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER OF THE LD ASSESSING OFFICER WHEREAS NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, THE ISSUE IS NOW DECIDED ON THE BASIS OF AVAILABLE INFORMATION ON RECORD. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDER OF THE LOWER AUTHORITIES. 8. ON THE FIRST GROUND OF APPEAL REGARDING DEMAND OF RS. 242060/ - THE LD CIT(A) HELD VIDE PARA NO. 6 OF HIS ORDER THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS. 982940/ - IN THE THIRD QUARTER OF FINANCIAL YEAR 2010 - 11 AND THERE IS NO ADMISSION OF THE TDS LIABILITY AT THE TIME OF SURVEY, THEREFORE, DIFFERENCE OF TWO FIGURES THE ASSESSEE CANNOT BE ASKED TO PAY. THE LD ASSESSING OFFICER IN HIS ASSESSMENT O RDER HAS NEITHER GIVEN THE DETAIL OF HOW THE LIABILITY OF RS. 12.25 LAKHS HAS ARISEN AND IN WHOSE ACCOUNT THE TAX IS REQUIRED TO BE DEDUCTED. IT CANNOT BE THE CASE THAT ANY LUMP - SUM AMOUNT CAN BE DEPOSITED AS TDS. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD CIT(A), THEREFORE THE GROUND NO.1 OF THE APPEAL OF THE REVENUE IS DISMISSED. 9. GROUNDS NOS. 2 TO 5 OF THE APPEAL OF THE REVENUE ARE AGAINST VARIOUS TAX LIABIL ITIES DELETED BY THE LD CIT(A). VIDE PARA NO. 6.1 TO 6.11 OF THE ORDER OF PAGE 4 OF 6 THE LD CIT(A) THIS TAX DEMAND OF SHORT DEDUCTION OF TAX AND INTEREST ARE DELETED AS UNDER: - 6. I HAVE HEARD BOTH THE PARTIES AND HAVE DECIDED THAT THE A.O. HAD NOT CHECKED THE RECO RDS PROPERLY FILED BY THE DEDUCTOR COMPANY. THE DEDUCTOR COMPANY HAS DEPOSITED AN AMOUNT OF RS. 9,82,940/ - IN THE THIRD QUARTER OF THE FINANCIAL YEAR 2010 - 2011 AND THEY HAD NOT ADMITTED THE TDS LIABILITY OF RS. 12,25,000/ - AT THE TIME OF SURVEY. SO THE AMOU NT OF RS. 2, 42, 060/ - BEING DIFFERENCE OF ABOVE TWO FIGURES IS DELETED, THUS GROUND # 1&2 ARE ALLOWED. 6.1 GROUND #3: THE DEDUCTOR COMPANY HAS ADDED AN INCOME OF RS. 1,10, 300/ - AS IN THE COMPUTATION OF INCOME FOR RELEVANT FINANCIAL YEAR I.E. 2010 - 2011 PROVISIONS FOR AUDIT FEES, AND ADDED BACK TO THE INCOME SUO MOTTO. THE AO(TDS) HAD CHARGED TDS @ 10% IN SUCH PROVISION OF RS. 1,10,300/ - OF RS. 11,030/ - . THEREFORE, THERE IS NO NEED TO CHARGE TDS ON THE SAID AMOUNT. SO THE AMOUNT OF RS. 11030/ - IS DELETED. GROUND # 3 IS ALLOWED. 6.2 GROUND NO. 4 : THE AO (TDS) HAS CHARGED INTEREST OF RS 1434/ - ON TDS OF RS. 11,030/ - WHICH IS UNWARRANTED AND HENCE DELETED. 6.3 GROUND NO. 5 :THE DEDUCTOR COMPANY HAS FILED DETAIL OF PAYMENT ON WHICH TDS WAS NOT DEDUCTED ON W HICH DEDUCTION OF TDS WAS NOT REQUIRED. DETAIL WAS ALSO FILED BEFORE ME AND BEFORE A.O. AT THE TIME OF HEARING. DETAIL SHOWS, THERE IS NO NEED TO DEDUCT TDS. SO I DELETE THE ADDITION OF RS. 81,183/ - 6.4 GROUND NO. 6 : THE INTEREST OF RS. 16096/ - CHARGED ON RS. 811837 - IS DELETED AS THERE IN NO LIABILITY OF IDS OF RS. 81183/ - . 6.5 GROUND NO. 7 : THE DEDUCTOR COMPANY HAS FILED HEAD WISE DETAILS OF EXPENSES OF P&L A/C. THE A.O. HAS CHARGED TDS ON AVERAGE BASIS AT THE RATE OF 5% ON EXPENSES OF RS. 19.50 CRORE FOR THE FINANCIAL YEAR 2009 - 2010. THE AUDITED BALANCE SHEET P & L A/C FOR THE RELEVANT FINANCIAL YEAR I.E. 2009 - 2010 WAS FILED BEFORE THE A.O. AND HE HAS NOT VERIFIED THE SAID AMOUNTS FROM THE BALANCE SHEET. TOTAL EXPENSES AMOUNT TO RS 18.55 CRORE F OR FY 2009 - 10 AS PER AUDIT REPORT . THIS NEEDED TO BE RECTIFIED. THE CHARGING OF TDS AT AVERAGE RATE OF 5% IS AGAINST THE LAW AS DEDUCTOR COMPANY HAS FILED THE TDS RETURN BEFORE FINALIZATION OF ORDER, U/S 201(1)7(1 A). HENCE ADDITION MADE ON THIS ACCOUNT F OR THE FINANCIAL YEAR 2009 - 2010 OF RS. 16.50 LACS AND FOR THE FINANCIAL YEAR 2010 - 2011 OF RS. 20.90 LACS IS TO BE DELETED. 6.6 . GROUND NO.8: - THE AR'S REPLY ON THIS GROUND IS AS FOLLOWS: THAT INTEREST OF RS. 6,84,200/ - (4, 12,500+2, 71,700) CHARGED AS PER PARA NO.L 1.7 OF A.O. ORDER MAY ALSO BE DELETED AS THE INTEREST ON LATE PAYMENT OF TDS HAS BEEN DULY PAID AT THE TIME OF PAYMENT OF TDS, WHICH CAN ALSO BE VERIFIED FROM THE RETURN OF TDS FOR THE RELEVANT FINANCIAL YEAR.' AS THE ADDITION OF RS. 16.50 LAKHS AND RS.20.90 LAKHS IS DELETED, THERE IS NO INTEREST TO BE CHARGED ON THESE SUMS. HENCE ADDITION OF RSF6,84,200/ - IS DELETED. 6.7 GROUND NO,9: - THAT THE QUARTERLY RETURN OF TDS WAS FILED BY THE DEDUCTOR COMPANY FOR THE RELEVANT FINANCIAL YEARS IN QUESTION AND TDS PAGE 5 OF 6 WAS DEDUCTED UNDER THE SALARY HEAD AS PER THE PROVISION OF SECTION 192B OF THE I.T.ACT, 1961 AND TDS WAS DEPOSITED WITH INT EREST AND EMPLOYEE DETAIL WAS UPLOADED WITH THE QUARTERLY RETURN OF TDS. DETAIL CAN ALSO BE VERIFIED BY ACCESSING THE DATA FROM THE NSDL SITE, A.O. HAS NOT BOTHERED TO VERIFY THE DETAILS AND FACT BY ACCESSING THE NSDL SITE. DETAILS OF TDS (INCLUDING INTERE ST THERE ON) UNDER SECTION 192B FOR THE RELEVANT FINANCIAL YEAR I.E. 2009 - 10 & 2010 - 11 ARE HEREBY ENCLOSED IN THE PAPER BOOK. NO ACTION IS REQUIRED UNDER THIS GROUND. 6.8 GROUND NO.10: THAT LEVY OF INTEREST ON TDS DUE HAS BEEN CHARGED AT RS. 3, 85,785/ - ( AS PER PARA NO 13.2 OF A.O ORDER) +28,923/ - (AS PER PARA NO 12.1 OF A.O ORDER). IN THIS REGARD, DEDUCTOR COMPANY WANTS TO SUBMIT THAT IT HAS CITED THE TDS ALONG WITH INTEREST FOR THE RELEVANT FINANCIAL YEAR IN QUESTION. TDS DETAILS (SECTION WISE) ARE HEREBY ENCLOSED FOR THE FINANCIAL YEAR 2009 - 2010 AND 2010 - 2011 IN THE PAPER BOOK. THE INTEREST CHARGED THERE UPON IS DELETED AS INTEREST HAS ALREADY BEEN DEPOSITED AT THE TIME OF PAYMENT OF TDS FOR THE RELEVANT FINANCIAL YEAR IN QUESTION. 6.9 GROUND NO.11: - THAT A.O HAS ADDED RS. 54,4637 - IN THE ADDITION OF TDS PAYABLE BEING INTEREST U/S 201(1 A) BUT ORDER DOES NOT SPEAK ANY DEFAULT OR ON WHICH AMOUNT SUCH INTEREST HAS BEEN CHARGED. IT IS SYSTEM GENERATED PROBLEM TO WHICH THE AO(TDS) SHOULD SORT OUT AND INFORM TH E APPELLANT. HENCE CHARGING OF INTEREST OF RS.54, 463/ - IS ILLEGAL AND IS DELETED AS INTEREST ON LATE PAYMENT OF TDS AMOUNT HAS BEEN DULY PAID FOR THE RELEVANT FINANCIAL YEAR IN QUESTION. 10. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD CIT(A) AND NONE HAS BEEN POINTED OUT BY THE LD DR. IN VIEW OF THIS WE CONFIRM THE ORDER OF LD CIT(A) IN DELETING THE DEMAND OF RS. 5245174/ - . IN THE RESULT GROUND NO. 2 TO 5 OF THE APPEAL OF THE REVENUE ARE DISMISSED. 11. GROUND NO. 6 OF THE APPEAL OF THE REVENUE IS AGAINST TH E DIRECTION LD CIT(A) TO THE ASSESSING OFFICER TO VERIFY THE DETAIL BY ACCESSING THE DATA FROM NSDL SITE AND VERIFY IF THERE IS ANY SHORT DEDUCTION OR NONPAYMENT OF TAX AND THEN CHARGE INTEREST IF ANY. THE LD DR COULD NOT EXPLAIN TO US HOW REVENUE IS AGGRIEVED BY THE DIRECTION OF LD CIT(A). ACCORDING TO US THE LD CIT(A) HAS PROTECTED THE INTEREST OF REVENUE. THEREFORE, WE DISMISS GROUND NO. 6 OF THE APPEAL OF THE REVENUE . 12. IN THE RESULT APPEAL NO. 5882/DEL/2013 FOR AY 2010 - 11 OF REVENUE IS DISMISSED. 13. NOW WE COME TO APPEAL NO. 5883/DEL/2013 WHICH IS ALSO BASED ON SIMILAR GROUNDS WHEREIN DEMAND RAISED BY THE ASSESSING OFFICER OF RS. 5245174/ - VIDE ORDER DATED 23.03.2012 WI TH RESPECT TO FY 2009 - 10 AND 2010 - 11. THE ABOVE APPEAL IS AGAINST THE SAME ORDER OF LD CIT(A) DELETING THE DEMAND OF RS. 5245174/ - RAISED BY THE ASSESSING OFFICER BY PASSING AN ORDER U/S 201(1)/201(1A) OF THE ACT ALSO BY SINGLE ORDER. HOWEVER, AS TWO ASSES SMENT PAGE 6 OF 6 YEARS WERE INVOLVED TWO APPEALS WERE FILED BY THE REVENUE. AS WE HAVE ALREADY DISCUSSED AND DISMISSED THE APPEAL OF THE REVENUE IN ITA NO. 5882/DEL/2013 WE ALSO DISMISS THE APPEAL OF THE REVENUE IN ITA NO. 5883/DEL/2013 FOR AY 2011 - 12 AS IT IS AGAINS T THE SAME ORDER OF THE LD CIT ( A). IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. 14. IN THE RESULT APPEAL OF THE REVENUE FOR BOTH THE YEARS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 9 / 0 3 / 2017 . - S D / - - S D / - ( C.M.GARG ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 9 / 0 3 / 2017 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI