GSB SECURITIES P. LTD, MUMBAI V. ITO (TDS) 1(4), MUMBAI

ITA 7433/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7720 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 24-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 12-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI , , , , ! BEFORE SHRI RAJENDRA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.7433/MUM/2014 ( '# $# / ASSESSMENT YEAR: 2008-09) GSB SECURITIES PVT. LTD. 78/80 ALI CHAMBERS, TAMARIND LANE, FORT, MUMBAI 400 001 / VS. INCOME TAX OFFICER (TDS) 1(4) MUMBAI ./ ./PAN/GIR NO. : AAACG9905H ( /APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 24.03.2017 /DATE OF PRONOUNCEMENT: 29.03.2017 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 19.09.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-14, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RE LEVANT TO THE A.Y.2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) ERRED IN LAW AS WELL AS IN FACT AND CIRCUMSTANCES OF THE CASE IN PASSING EX-PARTE ORDER IN APPELLATE PROCEEDING IGNORING THE LETTER OF ADJOURNMENT FILED BY AUTHORIZED ASSESSEE BY: NONE REVENUE BY: SHRI RAJGURU M. V. ITA NO.7433/M/2014 A.Y.2008-09 2 PERSON, WHICH IS AGAINST THE PRINCIPAL OF NATURAL J USTICE AND FAIR IN PALY. 2. WITHOUT PREJUDICE THE LEARNED CIT(A) ERRED IN LA W, AND IN CIRCUMSTANCES IN CONFIRMING THE EX-PARTE ORDER PASS ED BY THE A.O. U/S.201(1) AND 201(1A) OF THE ACT, AND RAISING A DEMAND OF RS.14,931/- AND LEVYING A INTEREST OF RS.7,167/- WI THOUT GRANTING PROPER OPPORTUNITY OF BEING HEARD. 3. THE LEARNED CIT(A) ERRED IN LAW, AND IN CIRCUMST ANCES, WITHOUT APPRECIATING THE FACT THAT PAYMENT MADE BY THE APPE LLANT TO NSE OF RS.2,89,923/- FOR RENDERING VARIOUS SERVICES E.G . LEASE LINE AND VSAT CHARGES DID NOT FALL WITHIN THE PURVIEW OF SECTION 194J OF THE ACT. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF A.O. PASSED U/S.201(1) AND 201 (1A) OF THE ACT, RAISING A DEMAN D ALONG WITH INTEREST IN RESPECT OF NON DEDUCTION OF TAX BY THE APPELLANT IN RESPECT OF PAYMENT MADE OF RS.2,89,923/- TO NSE U/S .194J OF THE ACT, WHEN THE APPELLANT DENIES THEIR LIABILITY U/S. 194J OF THE ACT, IN RESPECT OF THE SAID PAYMENT. 5. THE LEARNED CIT(A), FAILED TO APPRECIATE THAT QU ANTUM ADDITION OF RS.2,89,923/- MADE TO THE RETURNED INCOME OF THE APPELLANT, IN RESPECT OF WHICH DEMAND OF RS.14,931/- AND INTER EST OF RS.7161/- IS RAISED ON THE APPELLANT, HAS BEEN DELE TED BY THE LEARNED CIT(A) IN APPEAL BEARING NO.IT/CIT(A)8/CIR. 4/67/10- 11. 3. THE BRIEF FACTS OF THE CASE ARE THAT AT THE TIME OF ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT THE ASSESSEE FAILED TO DEDUCT THE TDS ON PAYMENT MADE ON PROFESSIONAL FEES U/S.194J OF THE I NCOME TAX ACT, 1961 (IN SHORT THE ACT) AS PER THE PROVISIONS OF THE A CT. THEREFORE, THE ASSESSING OFFICER DISALLOWED THE PAYMENT U/S.40(A)( IA) OF THE ACT. THE ASSESSEE MADE THE PAYMENT TO THE NSE TO THE TUNE OF RS.2,89,923/-. THEREFORE, THE TDS WAS ASSESSED TO THE TUNE OF RS.1 4,931/- AND INTERESTED U/S.201(1) AND 201(1A) OF THE ACT WAS WORKED OUT TO THE TUNE OF RS.7,167/- ITA NO.7433/M/2014 A.Y.2008-09 3 ACCORDINGLY, THE DEMAND NOTICE WAS ISSUED. THE ASS ESSEE WAS NOT SATISFIED, THEREFORE, AN APPEAL WAS FILED BEFORE THE CIT(A) WH O CONFIRMED THE ORDER OF THE ASSESSING OFFICER, THEREFORE THE ASSESSEE HA S FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 TO 5:- 4. ISSUE NO.1 TO 5 ARE INTERCONNECTED, THEREFORE AR E BEING TAKEN UP TOGETHER FOR ADJUDICATION. UNDER THESE ISSUES THE ASSESSEE HAS PLEADED THAT THE ASSESSEE WAS NOT UNDER OBLIGATION TO DEDUC T THE TDS ON ACCOUNT OF PAYMENT MADE TO THE TUNE OF RS.2,89,923/ - TO NSE LEASE LINE CHARGES AND VSAT OPERATION CHARGES BUT THE CI T(A) HAS CONFIRMED THE TDS U/S.194J OF THE ACT @ 5.15 ON RS. 2,89,923/- I.E. TOTAL TO THE TUNE OF RS.14,931/- ALONG WITH INTERES T U/S.201(1A) WORKED OUT TO THE TUNE OF RS.7,167/- WRONGLY AND ILLEGALLY WHICH IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW. THE NOTICE HAS BEEN ISSUED TO THE ASSESSEE WHICH WAS DULY SERVED TO THE ASSESSEE BUT THE ASSESSEE FAILED TO APPEAR BEFORE US, THEREFORE, HE WAS PROCEEDED AGAIN ST EX-PARTE. THE ASSESSEE AS WELL AS HIS REPRESENTATIVE NOWHERE REPR ESENTED THE CASE. NO MATERIAL OF ANY KIND WAS PRODUCED BEFORE US TO WHIC H IT CAN BE ASSUMED THAT THE FINDING OF THE CIT(A) IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. IT IS NOT IN DISPUTED THAT THE ASSES SEE PAID LEASE LINE CHARGES OF RS.2,34,923/-, AND VSAT OPERATING CHARGES OF RS.55, 000/- BUT FAILED TO DEDUCT THE TAX U/S.194J OF THE ACT. THE ASSESSING OFFICER HAS RIGHTLY DEDUCTED THE TAX ALONG WITH INTEREST AS PER LAW, TH EREFORE, WE NOWHERE FOUND ANY ILLEGALITY AND INFIRMITY IN THE ORDER PAS SED BY THE CIT(A) IN ITA NO.7433/M/2014 A.Y.2008-09 4 QUESTION. SINCE NO MATERIAL OF ANY KIND WAS PRODUC ED BEFORE US, THEREFORE, WE ARE OF THE VIEW THAT THE CIT(A) HAS DECIDED THE MATTER JUDICIOUSLY AND CORRECTLY WHICH IS NOT REQUIRED TO BE INTERFERE WIT H ATE THIS APPELLATE STAGE. ACCORDINGLY, ALL THESE ISSUES ARE DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH MARCH, 2017 . SD/- SD/- (RAJENDRA) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 29 TH #$ , 2017 MP & '$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. , , , , / DR, ITAT, MUMBAI 6. + -$ / GUARD FILE. / BY ORDER, ! ! //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI