M/s. Temple Rock Consultancy Pvt. Ltd., Bhubaneswar V. DCIT, CPC, Bangalore

ITA 6/CTK/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2607 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2018-2019
• Appeal Filed On: 16-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 234B; 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER M/s. Temple Rock Consultancy Pvt Ltd., 1187/1188, Ratnakar Bag-2, Tankapani Road, Bhubaneswar. PAN/GIR No. (Appellant Per Bench This is an appeal filed by the assessee against the or CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 29.10.2021 in Appeal No.CIT(A), Bhubaneswar year 2018-19. 2. The appeal filed by the assessee is barred by limitation by 20 days. The assessee has the appeal could not be filed on time due to the fact that the Director of the Company Shri Dipti Prakash Nanda, who looks after all the accounts and tax matter, underwent a knee surgery and was hospitalized IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER ITA No.06/CTK/2022 Assessment Year : 2018-19 M/s. Temple Rock Consultancy Pvt Ltd., 1187/1188, Ratnakar 2, Tankapani Road, Bhubaneswar. Vs. DCIT, CPC, Bangalore No.AAFCT 2145 K (Appellant) .. ( Respondent Assessee by : Shri Sourav Kejriwal Revenue by : None (Adjournment application) Date of Hearing : 11 /5/ 20 Date of Pronouncement : 11 / O R D E R This is an appeal filed by the assessee against the or CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 29.10.2021 in Appeal No.CIT(A), Bhubaneswar -1/14970/2019-20 . The appeal filed by the assessee is barred by limitation by 20 days. The assessee has filed condonation petition dated 15.1.2022 stating that the appeal could not be filed on time due to the fact that the Director of the Company Shri Dipti Prakash Nanda, who looks after all the accounts and tax underwent a knee surgery and was hospitalized Page1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER DCIT, CPC, Bangalore Respondent) Sourav Kejriwal , AR : None (Adjournment application) / 2022 /5/2022 This is an appeal filed by the assessee against the order of the CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 29.10.2021 in 20 for the assessment The appeal filed by the assessee is barred by limitation by 20 days. filed condonation petition dated 15.1.2022 stating that the appeal could not be filed on time due to the fact that the Director of the Company Shri Dipti Prakash Nanda, who looks after all the accounts and tax underwent a knee surgery and was hospitalized and advised by ITA No.06/CTK/2022 Assessment Year : 2018-19 Page2 | 5 the doctor for complete bed rest. In support of this, the assessee has filed an affidavit, wherein, it is mentioned that the non filing of the appeal on time is not intentional as it was beyond his control. It is prayed that the delay of 20 days in filing of the appeal be condoned. After considering the condonation petition, we are satisfied that the assessee had a reasonable cause for not filing the appeal on time. Hence, we condone the delay of 20 days and admit the appeal for hearing. 3. Shri Sourav Kejriwal, ld A.R. appeared on behalf of the assessee. None appeared on behalf of the revenue. 4. Ld CIT DR filed an adjournment letter dated 10.5.2022 mentioning that he is presently holding all the three appeal unit charges of Odisha alongwith CIT(Audit & ITAT) and thus overburden with the task of passing appellate orders. It is further mentioned that he received the additional charge of CIT(Audit & ITAT) only on the evening of 9.5.2022. Consequently, he has sought adjournment. This appeal has been filed by the assessee on 8.2.2022 and came for hearing on 4.4.2022 on which date same was adjourned at the request of ld CIT DR, who had at that point of time mentioned that he is holding six charges of CIT(A) and considering the workload, he was not in a position to argue the case. The appeal was adjourned to 11.5.2022 i.e. today and again similarly, another CIT(A) has filed a letter that he is also overburden and unable to argue the case. As the appeal was adjourned once on similar ground and as proper alternate ITA No.06/CTK/2022 Assessment Year : 2018-19 Page3 | 5 arrangement has not been done for arguing the appeal before the Tribunal, the Tribunal has no other alternative option but to reject the application and proceed with the adjudication of the appeal and we do so. 5. It was the submission of ld A.R. that the assessee is a company, which provides consultancy services to Sahara India Limited (SIL) for which, the assessee had received gross consultancy fee of Rs.3,95,00,000/-. On the said consultancy charges, SIL had deducted TDS at 10% and the assessee had received net of Rs.3,55,50,000/-. The return filed by the assessee came to be processed and intimation u/s.143(1) of the Act came to be issued denying the assessee the benefit of credit of TDS claimed in respect of consultancy services received from SIL. Consequently, the demand of Rs.48,12,130/- came to be raised on the assessee, which included interest u/s.234A, 234B and 234C of the Act. It was the submission that the credit for TDS made by SIL was not given to the assessee and the assessee filed an application u/s.154 of the Act to the AO but the same remained pending. Consequently, the assessee filed appeal before the ld CIT(A), NFAC, Delhi and same came to be disposed of by the ld CIT(A) on 29.10.2021, wherein, the ld CIT(A) dismissed the assessee’s appeal. Ld CIT (A) has clearly given a direction that the credit for the tax representing TDS cannot be given to the assessee in view of the provisions of Rule 37BA of the income tax Rules as the TDS was not reflected in 26AS statement. The ld CIT(A) refers to the provisions of section 205 of the Act, ITA No.06/CTK/2022 Assessment Year : 2018-19 Page4 | 5 which bars against the direct demand on the assessee once the TDS has been made. However, on the credit of TDS as claimed by the assessee, the CIT(A) denied the same. No direction has been issued in regard to demand raised on the assessee. It was the prayer that the demand raised on the assessee may be vacated. 6. We have considered the submission of ld A.R. We have also perused the order of the ld CIT(A). Admittedly, there is no dispute to the fact that the assessee has received net of the consultancy service charges from SIL after deduction of TDS. It is also undisputed that SIL has not deposited the TDS to the account of the Central Government. Consequently, the CIT(A) is right in denying the assessee the benefit of credit of TDS. However, in view of the provisions of section 205 of the Act, which bars the direct demand on the assessee when TDS has been deducted, the same cannot be recovered from the assessee. So also, the interest u/s.234A & 234B in respect of the said amount of TDS cannot be charged as the income has already become subject to levy of TDS. In these circumstances, in view of the provisions of section 205 of the Act, the demand raised on the assessee stands vacated in respect of amount of TDS deducted by SIL as also the consequential interest levied u/s.234A & 234B of the Act. It is further directed that the assessee shall not be granted the credit of TDS till such time the TDS is paid by SIL to the account of Government. ITA No.06/CTK/2022 Assessment Year : 2018-19 Page5 | 5 7. In the result, appeal of the assessee is partly allowed. Order dictated and pronounced in the open court on 11/5/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 11 /05/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : M/s. Temple Rock Consultancy Pvt Ltd., 1187/1188, Ratnakar Bag-2, Tankapani Road, Bhubaneswar 2. The Respondent. DCIT, CPC, Bangalore 3. The CIT(A)-, NFAC, Delhi 4. Pr.CIT-, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//