M/s Modipon Ltd., Modinagar V. ITO (TDS & Survey), Ghaziabad

ITA 6418/DEL/2016

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1619 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 15-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Assessment record; Condonation of delay; TDS
• Section: 154; 133A; 201; 264; 194A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘E’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA No.6418/Del./2026 (ASSESSMENT YEAR : 2006-07) ITA No.6419/Del./2026 (ASSESSMENT YEAR : 2007-08) ITA No.6420/Del./2026 (ASSESSMENT YEAR : 2008-09) M/s. Modipan Limited, vs. ITO (TDS & Survey), Hapur Road, Ghaziabad. Modinagar, Ghaziabad – 201 204 (UP). (PAN : AAACM2069E) (APPELLANT) (RESPONDENT) ASSESSEE BY : None REVENUE BY : Shri Vipul Kashyap, Senior DR Date of Hearing : 24.08.2022 Date of Order : 29.08.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : These are appeals by the assessee against respective orders of ld. CIT (A). Since the issues are common and connected, these are being consolidated and disposed off together. ITA Nos.6418, 6419 & 6420/Del./2016 2 2. The grounds of appeal and order of Revenue authorities are similar except for change in figures. 3. For the sake of reference, we are referring to ITA No.6418/Del/2016 for Assessment Year 2006-07. 4. The grounds of appeal read as under :- “1. That the order of the Commissioner of Income-tax (Appeals), - Ghaziabad, dated 28.09.2016, the impugned order, is wrong on facts and bad in law; 2. That the Commissioner (Appeals) failed to appreciate that the Assessing Officer erred in holding that the Appellant was liable to deduct tax under Section 194A of the Act on interest of Rs. 29,31,5251- to various depositors. It was an obvious error; 3. That the Commissioner (Appeals) erred in not directing the Assessing Officer to delete the tax of Rs.2,99,016/- charged under Section 194A of the Act on interest of Rs.29,31,525/- to various depositors; 4. That the conclusions and inferences of the Assessing Officer and/or Commissioner (Appeals) are based on suspicions, conjectures, surmises and extraneous and irrelevant considerations; 5. That the reliefs prayed for may kindly be allowed and the order(s) of the Income-tax Officer and/or Commissioner (Appeals) may kindly be quashed, set aside, annulled or modified; 6. That the aforesaid Grounds of Appeal are without prejudice to each other.” 5. In this case, the Assessing Officer (AO) passed order under section 154 of the Income-tax Act, 1961 (for short ‘the Act’) dated 31.03.2015 as under :- ITA Nos.6418, 6419 & 6420/Del./2016 3 “Order under section 201(l)/201(1A) of the Income Tax Act, 1961 in this case was passed by the A.O. on 27.06.2008. The A.O. during the course of survey under section 133A observed that as on 31.03.2006, interest of Rs. 29,55,000/- had been accrued. Since the amount of Rs.29,55,000/-on account of interest to the various depositors was credited, the TDS was to be deducted which had not been done. The AO worked out short charge of Rs.6,63,102/- at the rate of 22.44% and interest under section 201 (1A) of Rs. 2,58,610/-was also charged at the rate of 18%. Thus total demand of Rs.9,21,272/- was created against the assessee company. After it, the chronological events of the case areas under: 1) Against this order of the A.O. dated 27.06.2008, the assessee filed application under section 154 before the A.O. on 28.05.2009. 2) The assessee had also filed appeal before the CIT(Appeals), Ghaziabad. 3) The CIT(A), Ghaziabad vide order dated 14.09.2012 in A.No.1338/1339/1340/2011-12/GZB dismissed the appeal of the assessee on the ground of non condonation of delay in filing of appeal. However, the id. CIT(A) in his above referred order held that the appellant should have filed rectification application under section 154 before the A.O. subject to the genuineness and correctness of its claims and time limit involved. 4) The assessee after the order of CIT(A) filed a reminder before the A.O. dated 22.10.2012 requesting for disposal of its application under section 154 dated 28.05.2009. The A.O., however, vide order dated 30.03.2013 rejected the application filed by the assessee on the ground that the CIT(A), Ghaziabad has dismissed the appeal of the assessee and the CIT(TDS), Kanpur has also rejected the petition of the assessee filed under section 264 of the Income Tax Act, 1961. 5) The assessee also preferred an appeal before the Hon'ble ITA T against the order of the CIT(A). The Hon'ble ITAT vide their order dated in ITA No.2548, 2549 and Surprisingly, the then AO while passing order under section 201 (1)1201 (1A) of the Act ignored these complete ITA Nos.6418, 6419 & 6420/Del./2016 4 submissions dated 07.04.2008 received in his office on 15.04.2008 and did not take any cognizance of the documentary evidence put forth before him in the form of 15-H and copy of letter written to the Commissioner of Income Tax, enclosing therewith all these forms for not charging TDS on the amount of the interest related to the public depositors. We trust that you would definitely consider these submission as not considering these evidence and ignoring the same by the AO was undoubtedly a mistake apparent from the records. We hope that our request shall be acceded to and you would definitely extend the favor within the provisions of the Act and according to law. The assessee has also submitted that the AO had calculated the tax on Rs. 29,55,0001- @ 22.44% as against applicable rate of 10.20% on Rs.29,31,525/-. 2. The contention of the assessee to the extent that the AO had charged rates of TDS @ 22.44% on Rs.29,55,000/- as against applicable rate of 10.20% on Rs.29,31,525/- has been verified from the records which appears to be correct. As regards the assessee's contention that Form 15H in respect of the depositors as shown in the list submitted in the office of the Commissioner of Income Tax in as much as the interest paid to other depositors was less than Rs.5,000/- in each case, the same cannot be entertained on merits at this stage. Proceedings are accordingly revised under section 154 of the Income Tax Act, 1961. 3. The calculation of short charge, interest under section 201(1A) upto the date of order under section 201 (l) i.e. up to June, 2008, penalty under sec. 271C and interest under section 220(2) from July, 2008 to March, 2015 is as under:- Sr.No. Asstt. Year Amount of interest Short charge Intt. Upto June, 2008 Intt. u/s 220(2) upto March,2015 Total Demand 1 2 3 4 5 8 9 1 2006-07 2931525 299016 77744 305175 681935 ITA Nos.6418, 6419 & 6420/Del./2016 5 6. Upon assessee’s appeal, ld. CIT (A) reproduced the assessee’s submission and concluded as under :- “The submission of the appellant, assessment order all the case laws referred to therein, and assessment records have been duly considered. 5.1 The only ground taken in appeal is reproduced as below : That the Income-tax Officer failed to appreciate that the finding/ decision in the order dated 27.06.2008 that the Appellant was liable to deduct tax under section 194A of the Act on interest of Rs.29,55,000/- reduced to Rs.29,31,525/-, an obvious error and as such erred in not rectifying/ deleting the same. 5.2 It observed that the AO in his order has already given the benefit charging TDS @ 10.20% on Rs.29,31,525/- instead of previous computation involving charging of TDS @ 22.44% of Rs.29,55,000/-. Beyond that there is no issue involved which is prima facie rectifiable nature u/s 154. Thus the appeal of appellant is dismissed.” 7. Against the above order, assessee is in appeal before us. We have heard ld. DR for the Revenue. None appeared on behalf of the assessee despite several notices. Upon careful consideration, we find that ld. CIT (A) has passed a correct and well reasoned order. The view of ld.CIT (A) that further the issues raised by assessee were not rectifiable u/s 154 of the Act is accordingly upheld. Hence, we uphold the order of ld. CIT(A). 8. The above order applies mutatis mutandis to all the appeals. 9. In the result, all the appeals filed by the assessee are dismissed. Order pronounced in the open court on this 29 th day of August, 2022. Sd/- sd/- (CHALLA NAGENDRA PRASAD) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 29 th day of August, 2022 TS ITA Nos.6418, 6419 & 6420/Del./2016 6 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A) 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.