The ITO, TDS-3, JAMNAGAR V. M/s. Shakti Clearing Agency Pvt. Ltd., JAMNAGAR

ITA 612/RJT/2012

• Counselvise Citation: 61224914 RSA 2012
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: KAMLESH RATHOD
• Keywords: Principle of natural justice; Corroborative evidences; Assessment record; Tax effect
• Section: 194C

Judgement Text

I , IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . . A O . . BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM ITA . NO . 612 /RJT/2012 : : / ASSESSMENT YEAR 200 7 - 08. THE INCOME - TAX OFFICER, TDS - 3, JAMNAGAR. ( 2 / APPELLANT) M/S SHAKTI CLEARING AGENCY P VT. .LTD. , 4 - PATEL COLONY, B/H ST. ANNS SCHOOL, JAMNAGAR. PAN :AA CCS9861 P/ RKT S 00842 D 02 / RESPONDENT C.O. NO. 48/RJT/2012 : : / ASSESSMENT YEAR 2007 - 08. M/S SHAKTI CLEARING AGENCY PVT. LTD., 4 - PATEL COLONY, B/H ST. ANNS SCHOOL, JAMNAGAR. PAN :AACCS9861 P/ RKT S 00842 D ( 2 / APPELLANT) T HE INCOME - TAX OFFICER, TDS - 3, JAMNAGAR 02 / RESPONDENT O / REVENUE BY SHRI VILAS V . SHINDE , DR : / ASSESSEE BY SHRI KA ML ESH RATHOD , CA / DATE OF HEARING 2 2 - 0 8 - 2013 & 23 - 08 - 2013 / DATE OF PRONOUNCEMENT 23 - 08 - 2013 / ORDER . . A , O / T. K. SHARMA, J. M. : TH IS APPEAL BY THE REVENUE AND CROSS OBJECTIONS OF THE ASSESSEE ARE AGAINST THE ORDER DATED 17 - 08 - 2012 OF LD. CIT (A) - I I, RAJKOT FOR THE ASSESSMENT YEA R S 200 7 - 08 . 2 . T HE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A COMPANY. A SURVEY/VERIFICATION U/S.133A OF THE I.T. ACT WAS CARRIED OUT ON 21 - 02 - 2008 WHEREIN, IT WAS NOTICED THAT IN MAKING DEDUCTION OF TAX AT SOURCE , TAX HAS BEEN DEDUCTED IN SOME CASES U/ S. 194C OF THE ACT. WHEREAS, THOSE CASES PERTAIN TO HIRING CHARGES PAID ON ACCOUNT OF FACILITIES GIVEN BY VARIOUS AUTHORITIES WHICH FALL U/S.194 1 OF THE I.T. ACT. SUBSEQUENTLY, AO PASSED AN ORDER U/S.201(1)/201(1A) OF THE I.T. ACT ON 2 1 - 0 2 - 2011 WHEREIN HE COMPUTED THE DIFFERENCE OF SHORTFALL TAX LIABILITY OF RS.29,80,580/ - U NDER THE PROVISIONS OF SEC.194 1 OF THE I.T. ACT AND CHARGED THE INTEREST U/S.20 1(1A) AMOUNTING TO RS. 3,17,138/ - AS UNDER: - ITA 61 2 - 2012 2 SR. NO. NAME OF THE PARTY TDS DIFFERENCE AMOUNT DT. OF PAYMEN T. DUE DATE FOR PAYMENT. ACTUAL DT. OF PAYMENT. LATE BY MONTHS AMOUNT OF INTEREST 1 HALAR MARITIME AGENCIES UNITED SHIPPER LTD. 1085180 31/3/2007 7/4/2007 OCT - 2007 7 75962 2 HALAT TIMES PANDY ENTERPRISE 404011 31/3/2007 7/4/2007 OCT - 20 07 7 28280 3 G.M.B. 60801 31/3/2007 7/4/2007 OCT - 2007 7 4256 4 G.M.B. 2980580 31/3/2007 7/4/2007 OCT - 2007 7 208640 TOTAL 317138 ON APPEAL, BEFORE THE LD. CIT (A) , THE ASSESSEE CONTENDED THAT INTEREST U/S .201(1A) OF THE ACT WORKS OUT RS.43,335/ - AND NOT RS.3,17,138/ - . T HE LD. CIT (A) IN THE IMPUGNED ORDER DATED 17 - 08 - 2012 RESTORED TH IS ISSUE REGARDING CALCULATION OF INTEREST TO THE FILE OF AO FOR THE DETAILED REASON GIVEN IN PARA - 8 WHICH READS AS UNDER: - 8. I HAVE CONSIDERED THE CONTENTIONS OF THE ASSESSING OFFICER AND THE SUBMISSIONS OF THE APPELLANT AS REPRODUCED ABOVE. IN HIS SUBMISSIONS, THE AR OF THE APPELLANT HAS MAINLY DISPUTED THE CALCULATION OF INTEREST AS MADE BY THE ASSESSING OFFICER IN THE ASSE SSMENT ORDER. AS THIS MATTER INVOLVES VERIFICATION OF VARIOUS DETAILS, THE ASSESSING OFFICER IS DIRECTED TO RE - CALCULATE THE INTEREST AFTER OBTAINING NECESSARY SUPPORTING EVIDENCES FROM THE APPELLANT AND VERIFYING THE DETAILS AVAILABLE IN THE ASSESSMENT RE CORD OF THE APPELLANT FOR THE RELEVANT PERIOD ACCORDINGLY. THUS, THESE GROUNDS OF APPEAL ARE ALLOWED ACCORDINGLY. AGGRIEVED WITH THE ORDER OF LD. CIT (A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUND S : - 1 . THE LD. CIT (A) ERRED IN LA W AS WELL AS FACTS OF THE CASE IN DELETING THE INTEREST CHARGED U/S.20 1(1A)OF THE I.T. ACT OF RS. 3,17,138 / - BY THE AO. 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3 . THE APPELLA NT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND, WHICH MAY BE NECESSARY. 4 . IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT (A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EFFECT. 3. THE ASSESSEE H AS ALSO FILED CROSS - OBJECTIONS. THE VARIOUS GROUNDS RAISED BY THE ASSESSEE IN ITS CROSS - OBJECTIONS ARE AS UNDER: - 1. THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - II IS BAD IN LAW AS WELL AS ON FACTS. 2. THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) - II HAS ERRED IN LAW AS WELL AS ON FACTS WHILE CONFIRMING THE APPLICABILITY OF THE PROVISIONS OF SECTION 194I, IN RESPECT OF PAYMENTS MADE TOWARDS BARGE HIRE CHARGES, EQUIPMENT HIRE CHARGES, BERTH HIGHER CHARGES AND WHARFAGE CHARGES INSTEAD OF PROVISIONS OF SECTION ITA 61 2 - 2012 3 194C APPLIED BY THE APPELLANT AS THE NATURE OF SERVICES WAS CONTRACTUAL IN NATURE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II HAS ERRED IN LAW AS WELL AS ON FACTS WHILE CHARGING INTEREST U/S. 201(1A). 4. THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) - II HAS ERRED IN LAW AND FACTS OF THE CASE BY CONFIRMING INTEREST LIABILITY U/S.201(1) TO THE EXTENT OF RS.43,335/ - . 5 . THE APPEAL EFFECT ORDER PASSED BY THE ASSESSING OFFICER IS WITHOUT GIVING AN OPPORTUNITY OF BEING HEA RD AS STATED IN PARA 8 AND THEREFORE, THE ORDER PASSED BY HIM VIOLATES THE PRINCIPLES OF NATURAL JUSTICE. 4. AT THE TIME OF HEARING ON 22 - 08 - 2013, ON BEHALF OF ASSESSEE , SHRI KAMLESH RAHOD, CA APPEARED AND POINTED THAT AO ALLOWED THE APPEAL TO THE OR DER OF LD. CIT (A) VIDE ORDER DATED 29 - 09 - 2012 WHEREIN HE WORKED T C S AND INTEREST AT RS.43,435/ - . HE HAS FURTHER SUBMITTED THAT IN THE IMPUGNED ORDER, THE LD. CIT (A) MERELY DIRECTED THE AO TO RE - CALCULATE THE INTEREST AFTER OBTAINING NECESSARY EVIDENCES FROM THE ASSESSEE AND VERIFYING THE DETAILS AVAILABLE IN THE ASSESSMENT RECORD THEREFORE, VIEW TAKEN BY LD. CIT (A) BE UPHELD. ALTERNATIVELY, ASSESSEE PLEADED THAT SINCE THE APPEAL EFFECT IN THIS CASE IS LESS THAN RS.3 LACS, AS PER CBDT INSTRUCTION NO.0 3/2 011 ISSUED ON 09 - 02 - 2011 , THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE THEREFORE, SAME BE DISMISSED. 5 . WITH REGARD TO CROSS OBJECTIONS, COUNSEL OF THE ASSESSEE POINTED OUT THAT VARIOUS GROUNDS RAISED IN CROSS OBJECTIONS ARE NOT PRESSED. 6 . SHRI VILA S V . SHINDE, DR APPEARED ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID CONTENTION . 7 . HEAVING HEARD BOTH SIDES, W E HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER, LD. CIT (A) DIRECTED THE AO TO RE - CALCULATE THE INTEREST AFTER OBTAINING NECESSARY EVIDENCES FROM THE ASSESSEE AND VERIFYING THE DETAILS AVAILABLE IN THE ASSESSMENT ORDER OF THE ASSESSEE FOR THE RELEVANT PERIOD. SINCE THE LD. CIT (A), IN THE IMPUGNED ORDER MERELY DIRE CTED THE AO TO VERIFY THE CALCULATION OF INTEREST, WE ARE OF THE VIEW THAT THIS VIEW TAKEN BY THE LD. CIT (A) CALLS NO INFERENCE. WITHOUT PREJUDICE TO THIS, AO AFTER ALLOWING THE APPEAL EFFECT TO THE ORDER OF LD. CIT (A) VIDE ORDER DATED 23 - 09 - ITA 61 2 - 2012 4 2012 COMPUTE D THE REVISED TAX AT RS.43,335/ - . ADMITTEDLY, THE TAX EFFECT IS LESS THAN RS.3 LACS . THEREFORE, AS PER CBDT INSTRUCTION NO.03/2011 ISSUED ON 09 - 02 - 2011, THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE. FOR THIS REASON ALSO THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. 8 . THE VARIOUS GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTIONS WERE NOT PRESSED AT THE TIME OF HEARING. THEREFORE, CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALSO DISMISSED. 9 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND CROS S OBJECTIONS FILED BY THE ASSESSEE BOTH ARE DISMISSED. 10 . THIS O RDER IS PRONOUNCED IN OP EN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD/ - ( . . O D. K. SRIVASTAVA ) ( . . : / T. K. SHARMA ) / ACCOUNTANT MEMBER O / JUDICIAL MEMBER / ORDER DATE 23 - 08 - 2013. /RAJKOT NVA/ - 8 J / COPY OF ORDER FORWARDED TO: - 1 . 2 / APPELLANT - THE INCOME - TAX OFFICER, TD S - 3, JAMNAGAR 2 . 02 / RESPONDENT - M/S SHAKTI CLEARING AGENCY PVT. .LTD., 4 - PATEL COLONY, B/H ST. ANNS SCHOOL, JAMNAGAR. 3 . I M / CONCERNED CIT ( TDS ) ,RAJKOT. 4 . M - / CIT (A) - I I, RAJKOT. 5 . I , I , / DR, ITAT, RAJKOT 6 . : / GUARD FILE. / BY ORDER TRUE COPY. PRIVATE SECRETARY, ITAT, RAJKOT