ALLAHABAD BANK KHAR WEST BRANCH, MUMBAI V. I.T.O. (TDS) RG. 1(1), MUMBAI

ITA 7245/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8578 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 25-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR DR
• Keywords: Rectification of order
• Section: 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND , SHRI RAJENDRA, ACCOUNTANT MEMBER I.TA. NO. 7245/MUM/2011 ASSESSMENT YEAR 2008-09 ALLAHABAD BANK, KHAR (WEST) BRANCH, 383, VASUSMIRITI, 13 TH ROAD, LINKING ROAD, KHAR (WEST), MUMBAI 400 052. PAN: AACCA 8464 F VS. INCOME TAX OFFICER, (T.D.S.) RANGE 1(1), MUMBAI. ( / APPELLANT ) ( ! / RESPONDENT ) ' / APPELLANT BY : NONE ! # ' / RESPONDENT BY : SHRI MANOJ KUMAR (DR) $ # %& / DATE OF HEARING : 01-10-2012 '() # %& / DATE OF PRONOUNCEMENT : 10-10-2012 * / O R D E R PER RAJENDRA, AM THE APPELLANT HAS FILED THIS APPEAL AGAINST THE ORD ER DT. 28-07-2011 OF THE CIT(A), MUMBAI ON THE FOLLOWING GROUNDS: THE CIT(A) ERRED IN UPHOLDING THAT THE AAPPELLANT HAS NOT EXPLAINED/CLARIFIED, AS TO WHETHER THE BALANCE DEMAND OF RS. 1,20,900/- IS ON ACCOUNT OF THE LEVIED IN THE FORM OF HIGHER AND SECONDARY EDUCATION CESS. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR VARY AND / OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEALS. I.TA. NO. 7245/MUM/2011 ALLAHABAD BANK, 2 2. ASSESSEE, A BRANCH OF BANKING COMPANY ENGAGED IN TH E BUSINESS OF BANKING FILED ITS RETURN OF INCOME ON 30-06-2008. THE CASE WAS S ELECTED FOR SCRUTINY AND IN DUE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSING OFFICE R (AO) HELD THAT THERE WAS SHORT DEDUCTION OF TDS FOR QUARTER-I AMOUNTING TO RS. 63, 46,970/-. CONSEQUENTLY, HE CHARGED INTEREST ON SHORT DEDUCTION OF TDS FOR RS. 29.17 LAKHS. HE ALSO CHARGED LATE PAYMENT OF TDS OF RS. 1,99,250/-. AO AFTER CONSIDE RING SUBMISSIONS OF THE ASSESSEE IN THIS REGARD PASSED THE FINAL ORDER U/S. 201(1) O F THE INCOME TAX ACT, 1961 (ACT) ON 25-01-2011 AND MADE CERTAIN ADDITIONS. ASSESSEE PR EFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA). FAA FOUND THAT ORIGINAL DEMAND OF RS. 94.64 LAKHS CONSISTED RS. 63.46 LAKHS (ON ACCOUNT OF SHORT DEDU CTION OF TAX) AND RS. 29.17 LAKHS (ON ACCOUNT OF INTEREST ON SHORT TDS) AND RS. 1.99 LAKHS (ON ACCOUNT OF INTEREST OF LATE DEPOSIT OF TAX), THAT THIS WAS RESULT OF MIS-MATCH OF ON-LINE DATA, THAT AO LATER ON REVISED THE DEMAND THROUGH RECTIFICATION ORDER, THE FINAL DEMAND WAS REDUCED TO RS. 1.20 LAKHS CONSISTING OF RS. 72,670/- ON ACCOUNT OF SHORT DEDUCTION OF TAX AND RS. 35,000/- ON ACCOUNT OF INTEREST ON SHORT DEDUCTION AND RS. 13,230/- ON ACCOUNT OF INTEREST ON LATE PAYMENT OF TAX. DECIDING THE APPE AL FILED BY THE ASSESSES, FAA HELD THAT ALTHOUGH THE APPELLANT HAD STATED THAT ONLY GR IEVANCE WAS ON ACCOUNT OF SURCHARGE LEVIED IN THE FORM OF HIGHER AND SECONDARY EDUCATIO N CESS, YET ASSESSEE HAD NOT FURNISHED ANY EXPLANATION ABOUT IT. HE FURTHER HEL D THAT IT WAS NOT CLARIFIED AS TO WHETHER THE BALANCE PAYMENT OF RS. 1.2 LAKHS WAS ON ACCOUNT OF THE SAID SURCHARGE/CESS, THAT IT WAS ALSO NOT STATED WHETHER THE SAID DEMAND WAS BEING CONTESTED IN APPEAL. HE AGREED WITH THE LEGAL SUBM ISSIONS OF THE APPELLANT IN PRINCIPLE BUT IN ABSENCE OF ANY CLARIFICATION OR CO MPUTATION AS TO HOW AND WHAT MANNER THE DECISION OF THE AO WAS WRONG HE DID NOT GRANT ANY RELIEF TO THE APPELLANT. 3. FROM THE SUBMISSIONS MADE BY THE AUTHORISED SIGNATO RY BEFORE THE FAA, IT IS FOUND THAT FINANCIAL BILL FOR THE AY UNDER CONSIDER ATION RECEIVED PRESIDENTIAL ASSENT IN 12 TH MAY 2007, THAT AFTER THE DATE IT IS STARTED COLLEC TING HIGHER EDUCATION CESS IN THE FORM OF SECONDARY HIGHER EDUCATION CESS. DEPARTMEN TAL REPRESENTATIVE (DR) RELIED UPON THE ORDER OF THE FAA. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS A FACT THAT FINANCE BILL FOR THE PERIOD UNDER CONSIDERATION REC EIVED PRESIDENTIAL ASSENT IN MAY 2007. IN THESE CIRCUMSTANCES, IN THE INTERESTS OF JUSTICE, WE RESTORE BACK THE MATTER TO THE FILE OF THE AO. HE IS DIRECTED TO DECIDE THE I SSUE AFRESH TAKING INTO CONSIDERATION THE LEGAL POSITION WITH REGARD TO CHARGEABILITY OF CESS/SURCHARGE IN THE FIRST QUARTER OF THE ASSESSMENT YEAR. APPEAL FILED BY THE ASSESSEE STANDS PARTLY AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2012. SD/- SD/- ( . . / I.P. BANSAL ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI, +$ DATE: 10 TH OCTOBER, 2012 I.TA. NO. 7245/MUM/2011 ALLAHABAD BANK, 3 TNMM * * * * # ## # %, %, %, %, -,)% -,)% -,)% -,)% / COPY OF THE ORDER FORWARDED TO : 1. APP ELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR A BENCH, ITAT, MUMBAI 6. GUARD FILE !,% % //TRUE COPY// *$ *$ *$ *$ / BY ORDER, . .. . / / / / / DY./ASSTT. REGISTRAR , / ITAT, MUMBAI