M/s Nandganj Sihori Sugar Company Ltd., Lucknow V. Income Tax Officer (TDS), Faizabad

ITA 676/LKW/2014

• Counselvise Citation: 67623714 RSA 2014
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-10-2014
• Assessment Year: misc
• Appeal Filed On: 22-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: ARVIND SHUKLA ADV CATE
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NOS.676 TO 679/LKW/2014 ASSESSMENT YEARS:2008-09 AND 2009-10 M/S NANDGANJ SIHORI SUGAR COMPANY LIMITED DARYAPUR, RAEBAREILI V. INCOME TAX OFFICER (TDS) FAIZABAD PAN/PAN:AABCN1021G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. ARVIND SHUKLA, ADV CATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 16 10 2014 DATE OF PRONOUNCEMENT: 21 10 2014 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER OF THE LD. CIT(A) ON COMMON GROUNDS. FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS RAISED IN I.T.A. NO. 676/LKW/2014 AS UNDER:- 1. BECAUSE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN NOT FULLY ALLOWING THE APPEAL IN UTTER DISREGARD TO THE FACTUAL AND LEGAL POSITION OF THE CASE. 2. BECAUSE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS FAILED TO APPRECIATE THAT I. THE ORDER WAS BARRED BY LIMITATION AS PER SECTION 201(1)(3) OF THE ACT AND HENCE IS VOID AB-INITIO. :- 2 -: II. THERE WAS NO DEFAULT AT ALL AND THE APPARENT SHORTFALL WAS ONLY DUE TO SOME TECHNICAL FAULT IN UPLOADING THE QUARTERLY STATEMENTS. III. THE LEARNED A.O. HAS PASSED THE ORDER EX-PARTE WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD AND HENCE THE ORDER BEING AGAINST THE PRINCIPLES OF NATURAL JUSTICE WAS LIABLE TO BE QUASHED ON THIS GROUND ALONE. IV. THE CIT(A) HAS NO POWER TO SET ASIDE AN APPEAL AND AT BEST REPORT OF A.O. COULD HAVE BEEN CALLED FOR IN DECIDING THE APPEAL. 3. BECAUSE THE ORDER IS BAD IN LAW AS WELL AS ON FACTS AND HENCE THE APPEAL DESERVES TO BE ALLOWED. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE TDS WAS DEDUCTED AND PAID IN TIME. THE RELEVANT DETAILS WERE ALSO FURNISHED BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE DEMAND RAISED BY THE ASSESSING OFFICER IS NOT SUSTAINABLE IN THE EYES OF LAW IN THE LIGHT OF THE FACT THAT TDS WAS DEDUCTED AND PAID IN TIME. THE LD. CIT(A), INSTEAD OF VERIFYING THE FACTS WITH REGARD TO THE DEDUCTION AND PAYMENT OF TAX, HAS RESTORED THE MATTER TO THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY FROM THE DETAILS OF TDS PAYMENT MADE AND AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE, DECIDE THE APPEAL ON MERITS OF THE CASE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT AFTER AMENDMENT, THE LD. CIT(A) IS NOT EMPOWERED TO RESTORE THE MATTER TO THE ASSESSING OFFICER FOR ADJUDICATION OF THE ISSUE. MOREOVER, IN THE INSTANT CASE, THE LD. CIT(A) HAS RESTORED THE MATTER TO THE ASSESSING OFFICER TO ADJUDICATE THE APPEAL ON MERIT OF THE CASE AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THESE DIRECTIONS ARE NOT SUSTAINABLE IN THE EYES OF LAW, AS THE APPEALS CAN ONLY BE ADJUDICATED :- 3 -: AND DECIDED BY THE LD. CIT(A) HERSELF AND NOT BY THE ASSESSING OFFICER. THEREFORE, THE DIRECTIONS OF THE LD. CIT(A) ARE TOTALLY UNCALLED FOR. 3. THE LD. D.R. DID NOT DISPUTE THESE FACTS. MOREOVER, THE LD. D.R. HAS AGREED TO THE FACT THAT THE LD. CIT(A) HAS NO POWER TO REMAND THE MATTER BACK TO THE ASSESSING OFFICER FOR ADJUDICATION OF A PARTICULAR ISSUE. 4. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) HAVING RELIED UPON THE ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF COURT ONT ITS OWN MOTION VS. UOI AND OTHERS AS WELL AS THE CBDT INSTRUCTION NO.5/2013 DATED 8.7.2013, RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE APPEALS ON MERIT AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. FOR THE SAKE OF REFERENCE, WE EXTRACT THE RELEVANT PORTION OF THE ORDER OF THE LD. CIT(A) AS UNDER:- I HAVE PERUSED THE FACTS STATED IN 201(1)/201(1A) ORDER AS WELL AS ASSESSEE'S SUBMISSION STATED ABOVE AND I ALSO HEREBY FOLLOW THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF 'COURT ONT' ITS OWN MOTION VS UOI AND OTHERS AS WELL AS CBDT'S INSTRUCTION NO. 5/2013 DATED 8TH JULY 2013 QUOTE FROM F.NO. 275/03/2013-IT(B) ... IN VIEW OF THE ORDER OF THE HON'BLE DELHI HIGH COURT (REFERENCE PARA 50 OF THE ORDER), IT HAS BEEN DECIDED BY THE BOARD THAT WHEN AN ASSESSEE APPROACHES THE ASSESSING OFFICER WITH REQUISITE DETAILS AND PARTICULARS IN THE FORM OF TDS CERTIFICATE AS AN EVIDENCE AGAINST ANY MISMATCHED AMOUNT, THE SAID ASSESSING OFFICER WILL VERIFY WHETHER OR NOT THE DEDUCTOR HAS MADE PAYMENT OF THE TDS IN THE GOVERNMENT ACCOUNT AND IF THE PAYMENT HAD BEEN MADE, CREDIT OF THE SAME SHOULD BE GIVEN TO THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER IS AT LIBERTY TO ASCERTAIN AND VERIFY THE TRUE AND CORRECT POSITION ABOUT THE TDS CERTIFICATE. SUCH VERIFICATION MAY BE MADE WITH THE RELEVANT AO(TDS). THE AO(TDS) MAY ALSO, IF DEEMED NECESSARY, ISSUE A NOTICE TO THE DEDUCTOR TO COMPEL HIM TO FILE CORRECTION STATEMENT AS PER THE PROCEDURE LAID DOWN. IN THIS :- 4 -: REGARD, THE AO(TDS) MAY INVOKE ALL THE POWERS AND AUTHORITY AS AVAILABLE TO HIM/HER AS PER THE INCOME TAX ACT. IF REQUIRED AND NECESSARY, HE/SHE CAN OBTAIN PRIOR APPROVAL OF THE DIRECTOR OR COMMISSIONER OF INCOME TAX. THE AUTHORITIES' CAN ALSO EXAMINE WHETHER GENERAL APPROVAL CAN BE GIVEN. THUS, THE MANNER LAID DOWN BY THE HON'BLE HC IN THE ABOVE MANDAMUS IS A METHOD OF DUE VERIFICATION. THIS MAY BE BROUGHT TO NOTICE OF ALL OFFICERS WORKING UNDER YOUR JURISDICTION FOR COMPLIANCE. HINDI VERSION SHALL FOLLOW..... (ANSHU PRAKASH) DIRECTOR IT(BUDGET), CBDT THE ASSESSING OFFICER IS HEREBY DIRECTED TO VERIFY FROM THE DETAILS OF TDS PAYMENT MADE, AS GIVEN IN PAGES 2 AND 3 OF THIS APPEAL ORDER AND AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE DECIDE THE APPEAL ON MERITS OF THE CASE. 5. IN THIS ORDER, THE LD. CIT(A) HAS PLACED RELIANCE UPON THE ORDER OF THE JURISDICTIONAL HIGH COURT AND THE INSTRUCTION ISSUED BY THE CBDT, BUT INSTEAD OF ADJUDICATING THE APPEALS ON MERIT, THE LD. CIT(A) HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE APPEALS ON MERIT. WHILE ISSUING SUCH DIRECTIONS, THE LD. CIT(A) HAS FORGOTTEN HER OWN POWERS, AS THE APPEALS ARE ALWAYS TO BE DECIDED BY THE APPELLATE AUTHORITIES AND NOT BY THE SUBORDINATE AUTHORITIES OR THE ORIGINAL FORUM, AGAINST WHICH THE APPEAL IS FILED. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE DIRECTION OF THE LD. CIT(A), TO THE ASSESSING OFFICER TO DECIDED THE APPEALS ON MERIT OF THE CASE, IS TOTALLY UNCALLED FOR AND UNWARRANTED. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE LD. CIT(A). 6. WE HAVE RECENTLY RECEIVED A COMMUNICATION FROM THE INCOME TAX OFFICER (TDS), LUCKNOW VIDE LETTER DATED 8.10.2014 STATING THAT THE BOARD HAS CLARIFIED THE POSITION THAT WHERE TDS DEDUCTED AND PAID WERE NOT GIVEN CREDIT THEREOF ON ACCOUNT OF MISMATCH IN THE IN THE TIN NUMBERS ANDAPPEAL :- 5 -: IS FILED BEFORE THE LD. CIT(A), THE LD. CIT(A) SHOULD EXAMINE THESE FACTS AND AFTER MAKING A PROPER VERIFICATION SHOULD ALLOW RELIEF TO THE ASSESSEE INSTEAD OF REMANDING THE MATTER BACK TO THE ASSESSING OFFICER, AS RECTIFICATION IS ONLY POSSIBLE IF MADE BY THE ASSESSEE HIMSELF/HERSELF AND NOT BY THE ASSESSING OFFICER. IN THE LIGHT OF THIS INSTRUCTION OF THE BOARD, WE SET ASIDE THE ORDER OF THE LD. CIT(A) IN ALL THE CASES AND RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE APPEALS ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO AFTER MAKING NECESSARY VERIFICATION WITH REGARD TO THE PAYMENT OF TDS. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST OCTOBER, 2014 JJ:2010 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR