Executive Engineer, Hathras V. I.T.O.(TDS), Aligarh

ITA 60/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0704 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 2 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-05-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 25-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: MANISH DIXIT
• Keywords: Rectification of order; Agreed addition; TDS
• Section: 194C; 201(1); 143(1); 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 60/AGRA/2013 ASSTT. YEAR : 2008-09 EXECUTIVE ENGINEER, PMGSY, VS. INCOME-TAX OFFICER , LEHRA ROAD, HATHRAS. (TDS & SURVEY), ALIGARH. (PAN: AAALO 0017) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH DIXIT, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 27.05.2013 DATE OF PRONOUNCEMENT OF ORDER : 31.05.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), MUZAFFARNAGAR DATED 05.12.2012 FOR THE ASSESSMENT Y EAR 2008-09. 2. IT IS RELEVANT TO MENTION HERE THAT THOUGH THE L D. CIT(A) DECIDED THE APPEALS FOR TWO ASSESSMENT YEARS 2008-09 AND 2009-10 U/S. 2 01(1)/201(1A) OF THE IT ACT, BUT THE ASSESSEE HAS PREFERRED PRESENT APPEAL ONLY FOR THE ASSESSMENT YEAR 2008-09. 3. THE FACTS OF THE CASE, AS NOTED IN THE APPELLATE ORDER, ARE THAT THE ITO (TDS & SURVEY) CONDUCTED AN INSPECTION OF THE OFFICE OF THE EXECUTIVE ENGINEER, PWD ITA NO. 60/AGRA/2013 2 (PMGSY), HATHRAS TO VERIFY PROPER DEDUCTION OF TAX AT SOURCE AND ITS DEPOSIT INTO THE ACCOUNT OF CENTRAL GOVERNMENT. DURING THE INSPE CTION, IT WAS NOTICED BY THE AO THAT THE TAX HAS NOT BEEN DEDUCTED ON PROFESSION AL AND CONTRACTUAL PAYMENTS AS REQUIRED U/S. 194C, 194-I AND 194J OF THE IT ACT FO R F.Y. 2007-08 AND 2008-09. THE AO COMPUTED SUCH TAX LIABILITY AMOUNTING TO RS. 3,74,973/- (3,59,796 + 15177 INTEREST) FOR THE ASSESSMENT YEAR 2008-09 UNDER APP EAL. THIS ORDER IS DATED 05.03.2009 U/S. 201(1)/201(1A). THE OTHER FACTS OF ASSESSMENT YEAR 2009-10 ARE NOT REPRODUCED AS NO APPEAL IS PREFERRED AGAINST SU CH ORDER. HOWEVER, THE ASSESSEE DURING THE PENDENCY OF APPEAL, DEPOSITED THE TAX FR OM RUNNING BILLS OF THE CONTRACTORS AND SUBMITTED EVIDENCE BEFORE THE AO IN RESPECT OF SUCH DEPOSITS. THE AO, THEREFORE, RECTIFIED HIS ORDER DATED 05.03.2009 AND PASSED THE ORDER U/S. 154 OF THE IT ACT ON 29.04.2009 AND THE NET TAX DEMAND RED UCED TO RS.18,453/- (RS.15,908 + 2545 INTT.) FOR THE ASSESSMENT YEAR 20 08-09. THE ASSESSEE CHALLENGED THE ORDER DATED 05.03.2009 BEFORE THE LD. CIT(A) AN D IT WAS SUBMITTED THAT THE ASSESSEE HAS DEDUCTED PROPER TAXES ALONG WITH INTER EST AMOUNTS FROM THE RUNNING BILLS OF THE CONTRACTORS TO WHOM THE ASSESSEE HAD G IVEN ADVANCE WITHOUT DEDUCTING TAX. ONLY THE LIABILITY IN RESPECT OF THE FOLLOWING PAYMENTS REMAINED : I). SHORT DEDUCTION IN RESPECT OF PAYMENTS MADE TO SHRI RAJENDRA SHARMA, FOR VEHICLE HIRING CHARGES AMOUNTING TO RS. 2,844/- AND INTEREST THEREUPON AMOUNTING TO RS.455/-. II). SHORT DEDUCTION IN RESPECT OF SHRI YOGENDRA PA L SINGH AND SHRI MAHENDRA PAL SINGH FOR PREPARATION OF DPR, A PROFES SIONAL/TECHNICAL SERVICE U/S. 194J OF THE ACT, I.E., ITA NO. 60/AGRA/2013 3 (A) SHRI Y.P. SINGH SHORT DEDUCTION RS.6,937/- AND INTE REST RS.1,110/- (B) SH. M.P. SINGH- SHORT DEDUCTION RS.6,127/- AND INTE REST RS.980/- TOTAL (I + II) : RS.15,908/- + 2,545/- = 18,453/- 4. DURING THE APPEAL PROCEEDINGS, THE ASSESSEE HAS ADMITTED HIS MISTAKE IN SHORT DEDUCTION OF TAX ON PAYMENTS MADE TO THE PROF ESSIONALS AND PRODUCED COPIES OF BILLS AS EVIDENCE OF DEPOSIT OF TAX DEMAND, THE DETAILS OF WHICH ARE THAT IN ASSESSMENT YEAR 2008-09, RS.12,195 (INTEREST) DEPOS ITED ON 05.12.2009. THE LD. CIT(A) ON CONSIDERATION OF THE ABOVE FACTS FOUND TH AT SINCE AOS ACTION HAS BEEN ACCEPTED BY THE ASSESSEE AND SHORT TAX ALONG WITH I NTEREST HAVE BEEN DEPOSITED, THE APPEAL ON THIS ISSUE BECOMES INFRUCTUOUS AND IS ACC ORDINGLY DISMISSED. HOWEVER, IT APPEARS THAT THE TAX DEPOSITED IN THE ASSESSMENT YE AR 2008-09 IS LESS THAN WHAT HAS BEEN COMPUTED BY THE AO. THE ASSESSEE IS DIRECTED T O DEPOSIT BALANCE AMOUNT AND PRODUCE ORIGINAL CHALLANS BEFORE THE AO FOR THE ASS ESSMENT YEAR UNDER APPEAL AND THE AO IS DIRECTED TO GIVE CREDIT OF THE SAME AS PE R LAW. THE LD. CIT(A), HOWEVER, WITH REGARD TO PAYMENT OF VEHICLE HIRING CHARGES TO SHRI RAJENDRA SHARMA, ACCEPTED THE EXPLANATION OF THE ASSESSEE FOR SHORT DEDUCTION. THEREFORE, DEMAND IN RESPECT THEREOF WAS DELETED. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE NOW LEFT FOR CONSIDERATION IS OF SHORT DEDUCTION MADE IN THE CAS E OF SHRI Y.P. SINGH AND M.P. SINGH. HE HAS RAISED ADDITIONAL GROUND OF APPEAL AS UNDER : ITA NO. 60/AGRA/2013 4 WHERE THE REGULAR ASSESSMENT OF PAYEE HAD BEEN COMP LETED AND THE AMOUNT OF TAX WAS PAID BY HIM, THE INCOME T AX OFFICER (TDS) HAD NO JURISDICTION UNDER SECTION 201, TO DEMAND FU RTHER TAX FROM THE PAYER IN RESPECT OF TAX SHORT DEDUCTED RELATING TO SUCH PAYEE. 5.1 HE HAS ALSO FILED FORM III-D AND 16A IN RESPECT OF M.P. SINGH AND PROCESSING OF RETURN IN THE CASE OF Y.P. SINGH U/S. 143(1) AND SUBMITTED THAT WHEN BOTH OF THEM HAVE PAID TAX TO THE REVENUE DEPARTMEN T, FURTHER DEMAND SHOULD NOT BE RAISED AGAINST THE ASSESSEE. THE LD. DR, HOWEVER , RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE AO ORIGINALLY PASSED ORDER U/S. 201(1)/201(1A) OF THE IT ACT ON DATED 05.03.2009 AND TREATED THE A SSESSEE IN DEFAULT AND RAISED THE DEMAND OF RS.3,59,796/- (3,10,915 + 48,881) AND INT EREST OF RS.15,177 (7878 + 7299) FOR THE ASSESSMENT YEAR UNDER APPEAL, I.E., 2 008-09. THE ASSESSEE THEREAFTER MOVED APPLICATION U/S. 154 BEFORE THE AO AGAINST TH E ORDER DATED 05.03.2009 AND SUBMITTED THAT THE ASSESSEE DURING THE PENDENCY OF APPEAL DEPOSITED THE TAX FROM RUNNING BILLS OF THE CONTRACTOR AND SUBMITTED EVIDE NCE BEFORE THE AO IN RESPECT OF SUCH DEPOSITS. THE ASSESSEE, THEREFORE, SOUGHT RECT IFICATION OF THE ORDER DATED 05.03.2009 BY SUBMITTING THAT THE DEMAND OF RS.3,59 ,796/- AND INTEREST OF RS.15,177/- HAVE BEEN DEPOSITED TIME TO TIME, WHICH HAVE BEEN RECOVERED. THE AO ACCEPTED THE EXPLANATION OF THE ASSESSEE AND SUITAB LY RECTIFIED THE ORDER. THE AO, ITA NO. 60/AGRA/2013 5 HOWEVER, FURTHER FOUND THAT TAX HAVE NOT BEEN DEDUC TED AT THE TIME OF PAYMENT AS REQUIRED U/S. 194C OF THE IT ACT, THEREFORE, THE DE DUCTOR IS LIABLE TO PAY INTEREST ON DELAYING THE TAX DEDUCTION. THE AO ACCORDINGLY WORK ED OUT SHORT DEDUCTION OF RS.15,908/- AND INTEREST OF RS.12,195/- AS PER RECT IFICATION DATED 29.04.2009. IT IS NOT CLARIFIED BEFORE US WHETHER THE ASSESSEE FILED ANY APPEAL AGAINST THE ORDER U/S. 154 DATED 29.04.2009 BEFORE THE LD. CIT(A). THE ASS ESSEE ONLY FILED APPEAL BEFORE THE LD. CIT(A) AGAINST THE MAIN ORDER DATED 05.03.2 009, WHICH IS IN FURTHER CHALLENGE BEFORE US. THE ASSESSEE ALSO SUBMITTED BE FORE THE LD. CIT(A) THAT THE INTEREST OF RS.12,195/- HAS BEEN DEPOSITED ON 05.12 .2009 AS PER RECTIFICATION ORDER U/S. 154 DATED 29.04.2009. THUS, THE ISSUE IS FURTH ER NARROWED DOWN TO THE SHORT DEDUCTION FOR THE ASSESSMENT YEAR UNDER APPEAL IN A SUM OF RS.15,908/- WHICH WOULD BE FURTHER REDUCED TO THE AMOUNTS OF RS.6,937 /- AND 6,127/- (13,064/-) BECAUSE THE LD. CIT(A)HAS GIVEN RELIEF IN RESPECT O F RAJENDRA SHARMA. THE LD. CIT(A) HAS SPECIFICALLY NOTED IN THE IMPUGNED ORDER THAT SINCE AOS ACTION HAS BEEN ACCEPTED BY THE ASSESSEE AND SHORT TAXES ALONG WITH INTEREST HAVE BEEN DEPOSITED, THEREFORE, THE APPEAL OF THE ASSESSEE HA S BECOME INFRUCTUOUS AND WAS ACCORDINGLY DISMISSED. IT WOULD AMOUNT THAT THE ASS ESSEE HAS AGREED AND CONSENTED TO THE ORDER OF THE AO IN RAISING THE DEMAND AGAINS T THE ASSESSEE. IT IS WELL SETTLED LAW THAT NO APPEAL LIES ON THE AGREED ADDITIONS. TH E HONBLE BOMBAY HIGH COURT IN THE CASE OF JIVATLAL PURTAPSHI VS CIT, 65 ITR 26 1 HELD AS UNDER: ITA NO. 60/AGRA/2013 6 HELD, THAT THE DEPARTMENT, HAVING AGREED TO DELETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONCEDED THE DELETIO N BEFORE THE APPELLATE ASSISTANT COMMISSIONER CANNOT BE HELD TO BE AGGRIEVED BY THIS PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL TO THE TRIBUNAL; THE APPEAL OF THE DEPARTMENT REGAR DING THE DELETION OF THE AMOUNT WAS NEITHER COMPETENT NOR CA PABLE OF BEING ENTERTAINED BY THE TRIBUNAL. 6.1 THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF BANTA SINGH KARTAR SINGH VS CIT, 125 ITR 239 OBSERVED: AN ORDER BASED ON AN AGREEMENT CANNOT GIVE RISE TO GRIEVANCES AND THE SAME CANNOT BE AGITATED IN APPEA L. IT WAS HELD: HELD, THAT IT WAS ON THE AGREEMENT OF THE ASSESSEE , WHICH AGREEMENT MENTIONED THE RATE AS WELL AS THE FIGURE, THAT PENALTY HAD BEEN LEVIED. THE ASSESSEE HAD NO RIGHT TO AGITA TE THIS QUESTION IN APPEAL. THE TRIBUNAL WAS RIGHT IN LAW I N NOT GOING INTO THE QUESTION WHETHER THE PENALTY WAS IN LAW TH E MINIMUM PENALTY LEVIABLE UNDER S. 271(1) ( C ) OF THE I. T. ACT,1961. 6.2 THE HONBLE KERALA HIGH COURT IN THE RECENT DE CISION IN THE CASE OF CIT VS VAMADEVAN BHANU, 330 ITR 559 HELD AS UNDER: ASSESSMENT ASSESSMENT ON AGREED BASIS ASSESSEE CANNOT APPEAL AGAINST SUCH ORDER INCOME TAX ACT, 1961. 6.3 THE ASSESSEE DID NOT CHALLENGE THIS FINDING OF THE LD. CIT(A) IN THE PRESENT APPEAL. THEREFORE, THE APPEAL OF THE ASSESSEE WOULD NOT BE MAINTAINABLE IN THE PRESENT FORM. FURTHER, THE ASSESSEE ADMITTED BEFORE THE LD. CIT(A) HIS MISTAKE IN SHORT DEDUCTION OF TAX AND PRODUCED COPIES OF BILLS AND EVIDENCES OF TAX DEMAND AND INTEREST. SAME WAS PLEADED BEFORE THE AO IN THE PROCEEDINGS U/S. 154 WHICH ITA NO. 60/AGRA/2013 7 HAVE BEEN ACCEPTED BY THE AO. THEREFORE, THE GRIEVA NCE OF ASSESSEE AGAINST THE IMPUGNED ORDER DATED 05.03.2009 HAS ALREADY BEEN TA KEN CARE OF BY THE AO IN RECTIFICATION PROCEEDINGS. NO APPEAL LIES BEFORE TH E CIT(A) AGAINST THE SAME ORDER. SINCE FURTHER DEMAND OF RS.15,908/- HAVE BEEN RAISE D IN ORDER U/S. 154 DATED 29.04.2009, THEREFORE, IF THE ASSESSEE WAS AT ALL A GGRIEVED AGAINST THE ORDER DATED 29.04.2009 AND FURTHER ENHANCEMENT IN THE DEMAND ON ACCOUNT OF SHORT DEDUCTION U/S. 201(1) OF THE IT ACT, HE SHOULD HAVE PREFERRED APPEAL BEFORE THE LD. CIT(A) U/S. 246A(1) (C) OF THE IT ACT. SINCE THE ORDER U/S . 154 IS APPEALABLE BEFORE THE LD. CIT(A) AND THE ASSESSEE HAS NOT PREFERRED ANY APPEA L BEFORE THE LD. CIT(A) RAISING FURTHER DEMAND OF RS.15,908/-, THEREFORE, SUCH AN I SSUE CANNOT BE RAISED IN THE PRESENT APPEAL. WHATEVER ORIGINALLY DEMAND WAS CREA TED AGAINST THE ASSESSEE VIDE ORDER DATED 05.03.2009 HAS BEEN TAKEN INTO CONSIDER ATION BY THE AO IN ORDER U/S. 154 OF THE IT ACT AND RELIEF TO THAT EXTENT HAS ALR EADY BEEN GIVEN TO THE ASSESSEE. WE MAY ALSO NOTE HERE THAT THOUGH THE ASSESSEE HAS RAISED THE PRESENT ADDITIONAL GROUND, BUT NO SUPPORTING DOCUMENTS HAVE BEEN FILED TO PRIMA FACIE PROVE THAT WHATEVER PAYMENTS HAVE BEEN MADE TO THESE PARTIES, I.E., M.P. SINGH AND Y.P. SINGH WHETHER THEY HAVE DECLARED THE SAME INCOME BE FORE THE INCOME-TAX AUTHORITIES AND HAVE PAID TAXES ON THE SAME OR NOT. THEREFORE, ADDITIONAL GROUND COULD NOT BE TAKEN INTO CONSIDERATION AT THIS STAGE IN THE ABSENCE OF ANY EVIDENCE AND FURTHER THAT THE APPEAL IS NOT MAINTAINABLE IN THE PRESENT FORM, THE ADDITIONAL GROUND COULD NOT BE CONSIDERED IN FAVOUR OF THE ASS ESSEE. IN VIEW OF THE ABOVE ITA NO. 60/AGRA/2013 8 DISCUSSION, WE DO NOT FIND ANY JUSTIFICATION TO INT ERFERE WITH THE ORDER OF LD. CIT(A). WE, THEREFORE, ARE NOT INCLINED TO ADMIT TH E ADDITIONAL GROUND OF APPEAL. THE SAME IS ACCORDINGLY DISMISSED. THE APPEAL OF TH E ASSESSEE HAS NO MERIT AND IS ALSO DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY