M/s. Shantamani Enterprises, Bhavnagar V. The Income tax Officer,TDS_4, Ahmedabad

ITA 686/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0533 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-09-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 11-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI S.S. GODARA, JM, & SHRI MANISH BORAD , AM. ITA NO. 686/AHD/2013 ASST. YEAR: 2010-11 M/S SHANTAMANI ENTERPRISE, NANALAL CHAMBERS, LOKHANDBAZAR, BHAVNAGAR. VS. ITO, (TDS)-4, AHMEDABAD. APPELLANT RESPONDENT PAN AAHFS4724L APPELLANT BY SHRI M. K. PATEL, AR RESPONDENT BY SHRI K. MADHUSUDAN, SR.DR DATE OF HEARING: 15/9/2016 DATE OF PRONOUNCEMENT: 19/9/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS APPEAL BY THE ASSESSEE FOR ASST. YEAR 2010-11 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-XXI, AHMEDABAD DATE D 17.09.2012 IN APPEAL NO.CIT(A)-XXI/305/11-12 PASSED AGAINST ORDER U/ 201(1)/201(1A) OF THE IT ACT, 1961 (IN SHORT THE AC T) FRAMED ON 29.07.2011 BY ITO(TDS)-4, AHMEDABAD. GROUNDS OF APP EAL RAISED BY THE ASSESSEE ARE AS FOLLOWS :- 1. THAT ON FACTS AND IN LAW, THE LEARNED CIT(A) HAS GR IEVOUSLY ERRED IN HOLDING THAT THE APPELLANT IS LIABLE TO COLLECT TCS U/S.206C OF THE ACT. 2. THAT ON FACTS AND IN LAW IT OUGHT TO HAVE BEEN HELD THAT THERE IS NO DEFAULT U/S. 201(1) / 201(1A) OF THE ACT. ITA NO.686/AHD/2013 ASST. YEAR 2010-11 2 3. THAT ON FACTS AND IN LAW THERE IS NO DEFAULT AS THE SALES ARE MADE TO MANUFACTURES AGAINST FORM NO.27C AND TO BUYERS AGAI NST LOWER TCS CERTIFICATES ISSUED BY THE DEPARTMENT. 4. I N THE ALTERNATE THERE IS NO DEFAULT AS THE PURCHASE RS ARE FILING RETURNS AND TAXES REGULARLY AND HENCE APPELLANT IS NOT IN DEFAU LT WITHIN THE MEANING OF SECTION 201(1) 201(1A) OF THE ACT. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY GROUND OF APPEAL. 2. THIS APPEAL IS TIME BARRED BY 101 DAYS. THE ASSE SSEE HAS FILED AN AFFIDAVIT ALONG WITH PETITION DATED 7 TH MARCH, 2013 FOR CONDONATION OF DELAY. IN THE PETITION IT HAS BEEN MENTIONED THA T SHRI JAYANTBHAI PATEL, WHO IS LOOKING AFTER THE TAX MATTERS RECEIVE D THE ORDER OF LD. CIT(A) ON 31/11/2012. HOWEVER, DURING THIS PERIOD T HERE WAS A CHANGE OF THE INCOME-TAX CONSULTANT WHO WAS HANDLIN G THE MATTERS OF THE ASSESSEE SINCE 20 YEARS AND A NEW TAX CONSUL TANT WAS APPOINTED. IN THE FIRST FORTNIGHT OF DECEMBER, 2012 THE PARTNER WAS BUSY WITH ELECTION CAMPAIN FOR NATIONAL CONGRESS PA RTY LOCAL CANDIDATE. DUE TO ALL THIS HECTIC AND BUSY SCHEDULE , THE PARTNER WAS ILL THEREAFTER FOR ABOUT 15 DAYS TILL END OF DECEMBER, 2012. UNFORTUNATELY, THEREAFTER, THERE WAS AN ACCIDENT AT THE SHIP BREAKING PLOT NO.27 OF THE ASSESSEE IN THE MIDDLE OF JANUARY , 2013 DUE TO WHICH NORMAL WORKING WAS DISRUPTED AND THE CONSEQUE NTIAL PROCEDURES TOOK A VERY LONG TIME TO SETTLE DOWN. DU E TO ALL THESE EVENTS, IMMEDIATE ACTION COULD NOT BE TAKEN FOR HAN DING OVER THE PAPERS TO ADVOCATE AT AHMEDABAD SO AS TO PREPARE AN D FILE THE ABOVE APPEAL. HENCE THE DELAY HAS OCCURRED DUE TO T HE BONA FIDE REASONS STATED AS ABOVE AND IN THE INTEREST OF JUST ICE, IT IS HUMBLY ITA NO.686/AHD/2013 ASST. YEAR 2010-11 3 REQUESTED THAT THE DELAY MAY KINDLY BE CONDONED AND THE APPEAL MAY BE HEARD ON MERITS.. 3. WE HAVE CONSIDERED THE PETITION FOR CONDONATION OF DELAY AND FIND THAT THERE IS A BONA FIDE REASON FOR NOT FILIN G THE APPEAL IN TIME. HENCE WE CONDONE THE DELAY AND PROCEED TO ADJUDICAT E THE APPEAL. 4. LD. AR SUBMITTED THAT PROPER OPPORTUNITY OF HEAR ING WAS NOT PROVIDED BY THE LOWER AUTHORITIES. THE LD. CIT(A) H AS DISPOSED OF THE ASSESSEES APPEAL IN A VERY CRYPTIC MANNER UPHOLDIN G THE ACTION OF ASSESSING OFFICER. THEREFORE, HE REQUESTED THAT ONE MORE OPPORTUNITY MAY BE GIVEN SO THAT THE ASSESSEE CAN PROVIDE ALL N ECESSARY DOCUMENTS & EVIDENCES BEFORE THE LOWER AUTHORITIES AND AFTER PROPER CONSIDERATION OF THE FACTS AND CIRCUMSTANCES, APPEA L MAY BE DISPOSED OF. 5. LD. DR OPPOSED THE SUBMISSION OF LD. AR AND SUBM ITTED THAT THE ASSESSEE WAS RELUCTANT TO APPEAR BEFORE THE AUT HORITIES BELOW. SO ACCORDING TO ASSESSEES SUBMISSIONS, THE CASE HA S BEEN CONSIDERED BY THE LD. CIT(A) AND RIGHTLY PASSED THE APPELLATE ORDER. THERE IS NO AMBIGUITY IN LD. CIT(A)S ORDER. THE SA ME MAY BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE MATERIAL ON RECORD. WE OBSERVE THAT LD. CIT(A) HAS DISPOSED OF THE APPEAL OF ASSESSEE WITH THE FOLLOWING OBSERVATIONS :- ITA NO.686/AHD/2013 ASST. YEAR 2010-11 4 3. WITH RESPECT TO THE VARIOUS NOTICES ISSUED, THE AP PELLANT MADE WRITTEN SUBMISSIONS THROUGH POST WHICH RECEIVED IN THE OFFICE ON 02.07.2 012. SUBSEQUENTLY, NOTICE WAS ISSUED ON 22.07.2012 ASKING FOR CLARIFICATION, IN RESPONSE TO WHICH THE APPELLANT REPLIED VIDE ITS LETTER DATED 18.08,2012 THAT ITS APPEAL MAY BE DECIDED ON TH E BASIS OF WRITTEN SUBMISSIONS DATED 2,07.2012. IN VIEW OF THE ABOVE, THE GROUNDS ARE AD JUDICATED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4. GROUNDS NOS. 1 TO 4 ARE GENERAL IN NATURE AND HENCE NOT ADJUDICATED UPON. 5. WITH RESPECT TO GROUND NOS. 5 & 6, THE APPELLANT V IDE ITS WRITTEN SUBMISSIONS HAS SUBMITTED THAT HE IS ENGAGED IN THE BUSINESS OF SHIP B REAKING. THE SCRAP AND PLATES OBTAINED FROM SHIP BREAKING BUSINESS IS SOLD TO THE VARIOUS PERS ONS AND TCS @ 1% IS COLLECTED FROM THE BUYERS. IN THE WRITTEN SUBMISSIONS, THE APPELLANT HA S DWELLED ON THE ISSUE THAT SUFFICIENT TIME WAS NOT GRANTED BY THE AO TO FURNISH DETAILS OF V ARIOUS FORM NO.27C COLLECTED FROM SUCH BUYERS, TO THE AO. THE APPELLANT SUBMITTED THAT HE IS DISCHARGED HIS APPLICATION UNDER THE PROVISIONS OF SEAION 206C OF THE ACT BY COLLECTING THE DEEMED AMOUNT OF TAX AT SOURCE FROM THE RESPECTIVE BUYERS. ALONG WITH THE WRITTEN SUBMIS SIONS, HOWEVER, NO EVIDENCE IN THE FORM OF LIST OF BUYERS ALONG WITH COPIES OF FORM NO.27C HAS BEEN FURNISHED. THE APPELLANT HAS ALSO NOT FURNISHED NECESSARY EVIDENCES IN RESPECT TO COM PLIANCE TO SECTION 206C(1B). THE SUBMISSIONS MADE BY THE APPELLANT ARE SILENT ON THES E ISSUES. SUCH SUBMISSIONS ARE NOT FORTHCOMING EVEN AFTER A NOTICE WAS ISSUED SUBSEQUE NT TO WRITTEN SUBMISSIONS MADE BY THE APPELLANT. 5.2 IN VIEW OF THE ABOVE, I AM OF THE VIEW THAT NECE SSARY EVIDENCES THAT COMPLIANCE TO SECTION 206C(1A) & 206C(1B) IS NOT FURNISHED BY THE A PPELLANT DESPITE NUMBER OF OPPORTUNITIES GIVEN TO HIM. UNDER THE STATED CIRCUMS TANCES, I AM OF THE OPINION THAT ACTION OF THE AO IN TREATING THE APPELLANT AS ASSESSEE IN DEFAULT U/S. 201(1)/201(1A) OF THE INCOME-TAX ACT IS CORRECT. 7. AFTER CONSIDERING THE FACTS OF THE CASE AND THE OBSERVATION OF THE LD. CIT(A), WE OBSERVE THAT LD. CIT(A) HAS DISP OSED OF THE MATTER IN A VERY SHORT-CUT MANNER WITHOUT GIVING PROPER DI SCUSSION OF THE MATTER. THEREFORE, TO MEET THE ENDS OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE MATTER TO THE FILE OF LD. CIT(A) FOR FR ESH DECISION, AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE SET ASIDE THE FIRST APPELLATE ORDER AND RESTORE THE APPEAL TO THE LD. CIT(A) FOR FRESH ADJUDICATION. THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.686/AHD/2013 ASST. YEAR 2010-11 5 ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH SEPTEMBER, 2016 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 19/9/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 15/09/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 19/09/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK:2 0/9/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: