ACIT CIRCLE-3 (1)(2), MUMBAI V. M/S HEMLATHA INVESTMENT PVT LTD., MUMBAI

ITA 6266/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6369 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 03-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: TDS
• Section: 234B; 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6266/M/2019 ASSESSMENT YEAR: 2013-14 ACIT CIRCLE-3(1)(2), ROOM NO.607, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S. HEMLATHA INVESTMENT PVT. LTD., 201, KETAN VILLA, 25, EAST WEST ROAD NO.2, JUHU, MUMBAI 400 056 PAN: AAACH0052Q (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : MS. SMITA VERMA, D.R. DATE OF HEARING : 01.07.2021 DATE OF PRONOUNCEMENT : 08.07.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 25.07.2019 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. AT THE TIME OF HEARING WHEN THE CASE WAS CALLED UP FOR HEARING NEITHER ASSESSEE NOR HIS AUTHORIZED REPRESE NTATIVE APPEARED BEFORE THE BENCH NOR ANY APPLICATION FOR A DJOURNMENT WAS RECEIVED. THEREFORE, WE ARE DISPOSING OF THIS APPEAL AFTER HEARING THE LD. D.R. AND AFTER CONSIDERING THE MERI TS OF THE CASE. 3. THE ONLY ISSUE RAISED BY THE REVENUE IS AGAINST THE ORDER OF LD. CIT(A) DIRECTING THE AO TO ALLOW THE CREDIT OF TAXES DEDUCTED ITA NO.6266/M/2019 M/S. HEMLATHA INVESTMENT PVT. LTD. 2 AT SOURCE OF RS.3,27,960/- WHICH THE DEDUCTOR FAILE D TO DEPOSIT WITH GOVERNMENT TREASURY IN TERMS OF PROVISIONS OF SECTION 205 OF THE ACT. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAD GIV EN ITS PREMISES ON RENT TO PRATIBHA SHIPPING LTD. FROM WHO M THE ASSESSEE RECEIVED A SUM OF RS.32,79,600/- AS RENT A ND OFFERED THE SAME UNDER THE HEAD HOUSE PROPERTY AFTER CLAI MING THE DEDUCTIONS UNDER SECTION 24 OF THE ACT. THE SAID P AYER OF RENT DEDUCTED TAX AT SOURCE OF RS.3,27,960/- FROM THE RE NT AND PAID THE NET AMOUNT OF RENT TO THE ASSESSEE. HOWEVER, T HE SAID TAX DEDUCTED AT SOURCE WAS NOT DEPOSITED IN THE GOVERNM ENT TREASURY AND CONSEQUENTLY NOT REFLECTED IN FORM NO. 26AS. THE ASSESSEE RECEIVED THE INTIMATION UNDER SECTION 143( 1) OF THE ACT DATED 29.09.2014 PROCESSING THE INCOME TAX RETURN F ILED BY THE ASSESSEE ON 27.09.2013 WHEREBY A DEMAND OF RS.4,12, 700/- COMPRISING TAX OF RS.3,27,960/- AND INTEREST UNDER SECTION 234B OF RS.68,262/- AND INTEREST UNDER SECTION 234C RS.16,481/- WAS RAISED. 5. THE AGGRIEVED ASSESSEE FILED AN APPEAL BEFORE LD . CIT(A) WHICH WAS ALLOWED BY LD. CIT(A) BY OBSERVING AND HO LDING AS UNDER: 4.2.1 THE INFORMATION PROVIDED BY THE APPELLANT REGARDING THE PAYMENT OF RENT BY M/S PRATIBHA SHIPPING LIMITED AFTER DEDUCTION OF TAXES HAS BEEN VERIFIED. IT IS A FACT THAT THE TDS WAS DEDUCTED BY THE PARTY WHILE M AKING THE RENTAL PAYMENTS TO THE APPELLANT. NOW, THE ISSUE TO BE DECIDED IS WHET HER THE ANT IS TO BE HELD RESPONSIBLE FOR PAYMENT OF THAT TAX WHICH WAS E;D B Y THE PARTY WHO WAS SUPPOSED TO DEPOSIT THE SAME. THE SECTION ACT VERY CLEARLY S TATES THAT THE ASSESSEE SHALL NOT BE CALLED UPON1 TO PAY THE TAX TO THE EXTENT THE TA X HAS BEEN DEDUCTED FROM THE INCOME. THE CENTRAL BOARD OF BOARD OF DIRECT TAXES VIDE IT'S OFFICE MEMORANDUM DATED 11.03.2016 HAVING F.NO. 275/29/2014-IT(B] HAS ALSO SPECIFICALLY DIRECTED THE FIELD OFFICERS TO NOT TO CALL UPON THE DEDUCTEE ASS ESSES TO PAY TAXES WHICH WERE ALREADY DEDUCTED BY THE DEDUCTORS. THUS, IN THIS CA SE ALSO THE APPELLANT SHOULD NOT ITA NO.6266/M/2019 M/S. HEMLATHA INVESTMENT PVT. LTD. 3 BE ASKED TO PAY THE TAXES WHICH WERE ALREADY DEDUCT ED BY THE DEDUCTEE PARTY, I.E. M/S PRATIBHA SHIPPING LIMITED. 4.2.2 IN VIEW OF THE ABOVE DISCUSSION AND AS PRES CRIBED BY THE PROVISION OF SECTION 205 OF THE ACT, THE AO IS DIRECTED TO ALLOW CREDIT OF TAX DEDUCTED AT SOURCE BY M/S. PRATIBHA SHIPPING LIMITED AND CHARGE CORRECT INTERE ST U/S 234A & 234C OF THE ACT WHILE GIVING EFFECT TO THIS APPELLATE ORDER. 6. AFTER HEARING THE LD. D.R. AND PERUSING THE MATE RIAL ON RECORD INCLUDING THE IMPUGNED ORDER, WE OBSERVE THA T THE LD. CIT(A) HAS CORRECTLY DIRECTED THE AO TO ALLOW THE C REDIT OF TAX DEDUCTED AT SOURCE FROM THE RENT BY M/S. PRATIBHA S HIPPING LTD. OF RS.3,27,960/- IN CONSONANCE WITH THE PROVISIONS OF SECTION 205 OF THE ACT WHICH PROVIDES THAT ONCE THE TAX IS DEDUCTED AT SOURCE, THE ASSESSEE CAN NOT BE CALLED UPON TO PAY THE TAX HIMSELF TO THE EXTENT TO WHICH THE TAX HAS BEEN DED UCTED AT SOURCE FROM THE INCOME. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A) AND ACCORDINGLY ARE INCL INED TO UPHOLD THE SAME. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.07.2021. SD/- SD/- (SAKTIJIT DEY) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 08.07.2021. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.