The Manager, Allahabad Bank, Shimla V. ITO, TDS, Shimla

ITA 748/CHANDI/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8908 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-01-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANDIP DAHIYA CIT
• Keywords: Opportunity of being heard; Corroborative evidences; TDS
• Section: 194A; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 748/CHD/2019 / ASSESSMENT YEAR : 2012-13 THE MANAGER, ALLAHABAD BANK, BHAGRA NIWAS, THE MALL, SHIMLA. VS THE ITO, WARD TDS, KASUMPTI, SHIMLA. ./ PAN NO: PTLA10151B / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI VISHAL MOHAN, ADVOCATE # ! ' / REVENUE BY : SHRI SANDIP DAHIYA, CIT $ % ! &/ DATE OF HEARING : 04.01.2021 '()* ! &/ D ATE OF PRONOUNCEMENT : 07.01.2021 HEARING CONDUCTED VIA WEBEX *,/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 23.03.2019 OF CI T(A) SHIMLA PERTAINING TO FINANCIAL YEAR 2011-12 IS ASSAILED ON THE FOLLOWING GROUNDS : 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD COMMISSIONER OF INCOME TAX ( APPEALS) IS NOT JUS TIFIED IN UPHOLDING THAT THE TAX WAS REQUIRED TO BE DEDUCTED ON T HE DEPOSITS OF HIMURJA UNDER SECTION 194A OF THE INCOME TAX ACT, 1 961. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E THE LD COMMISSIONER OF INCOME TAX (APPEALS) IN NOT JUS TIFIED IN UPHOLDING THE CHARGING OF INTEREST UNDER SECTION 201(1 A) OF THE INCOME TAX ACT, 1961. ITA 748 /CHD/2019 A.Y. 2012-13 PAGE 2 OF 5 2. THE LD. AR INVITED ATTENTION TO SPECIFIC PAGE 8 OF THE ORDER DATED 30.11.2017 AND SUBMITTED THAT THE CONCERNED T AX AUTHORITY HAVE HAULED UP THE ASSESSEE ON ACCOUNT OF THE ACCOU NT MAINTAINED BY THE PARTY SHOWN AS HIMURJA IN THE FINANCIAL YEAR 2011-12. IT WAS HIS SUBMISSION THAT IN THE VE RY SAME YEAR THE ASSESSEE WAS ALSO PENALIZED ON ACCOUNT OF H.P. BUILDING AND OTHER CONSTRUCTIONS MENTIONED IN SUB-PARA 2 OF THE SAID ORDER OF THE ASSESSING OFFICER, HOWEVER, ON THE SAID ISSUE, THERE IS NO DEBATE SINCE THE LD. COMMISSIONER HAD GRANTED RELIE F TO THE ASSESSEE. AS FAR AS THE PARTY HIMURJA IS CONCER NED, ATTENTION WAS INVITED TO THE PLEADINGS MADE BEFORE THE LD. CO MMISSIONER ADDRESSED AT PAGE 13 OF THE IMPUGNED ORDER WHEREIN CLEARLY THE SPECIFIC NOTIFICATION NO. 3489 DATED 22.10.2017 IN TERMS OF THE MANDATE OF SECTION 194A(3)(III)(F) WAS REFERRED TO WHICH CLEARLY EXEMPTED THE ASSESSEE FOR DEDUCTING TDS FOR THE SPE CIFIC PARTY. THE LD. COMMISSIONER, IT WAS SUBMITTED, REFERS TO T HE SPECIFIC PROVISION OF THE ACT AND ALSO REPRODUCES THE SPECIF IC NOTIFICATION, HOWEVER, FAILS TO GIVE RELIEF AT PAGE 16 HOLDING TH AT THE LETTER OF THE CEO OF HIMURJA MAKING THE CLAIM THAT IT IS A REGISTERED UNDER SOCIETIES REGISTRATION ACT, 1860 WHICH WAS WH OLLY FINANCED BY THE STATE AND CENTRAL GOVERNMENT COULD NOT BE TA KEN AS EVIDENCE. THE LD. AR SUBMITTED THAT WHAT MORE EVID ENCE CAN THE ASSESSEE LEAD TO DEMONSTRATE ITS CLAIM. THE SPECIF IC LETTER DATED 01.01.2020 AT PAPER BOOK PAGE 1 OF THE DIRECTOR-CUM -DY.CEO ITA 748 /CHD/2019 A.Y. 2012-13 PAGE 3 OF 5 AVAILABLE AT PAPER BOOK PAGE 1 WAS RELIED UPON. TH E LD. AR WAS REQUIRED TO ADDRESS WHETHER THERE WAS ANY PAST HIST ORY QUA THE SPECIFIC BANK OR ANY OTHER BANK IN RESPECT OF NON A PPLICABILITY OF TDS DUE TO THE SPECIFIC NOTIFICATION THEREBY ACCEPT ING THE STATED CLAIM THAT IT WAS WHOLLY FINANCED BY CENTRAL AND ST ATE GOVERNMENT OR ANY OTHER EVIDENCE CAPABLE OF BEING D EMONSTRATED FROM THE BOOKS OF ACCOUNT, BALANCE SHEET ETC. THE LD. AR REQUESTED FOR AN OPPORTUNITY TO PLACE THE NECESSARY DOCUMENTS ON RECORD AND HENCE REMAND BACK TO BRING THE EVIDEN CES ON RECORD. 3. THE LD. CIT-DR MR. DAHIYA, THOUGH DID NOT OPPOSE THE REQUEST FOR REMAND AND VERIFICATION OF DOCUMENTS ET C, HOWEVER, WAS OF THE VIEW THAT GROUND NO. 2 APPEARS NOT TO HA VE BEEN ARGUED BY THE LD. AR. 4. MR. VISHAL MOHAN IN RESPONSE THERETO SUBMITTED T HAT ONCE THE ASSESSEE IS ABLE TO DEMONSTRATE THAT THERE WAS NO NECESSITY FOR WITHHOLDING OF TAX QUA HIMURJA THEN THE OCCAS ION TO LEVY INTEREST WILL NOT ARISE, HENCE IT WAS A CONSEQUENTI AL GROUND. 5. THE LD. CIT-DR WAS OF THE VIEW THAT SINCE BEFORE THE CIT(A) THE ASSESSEE APPEARS TO HAVE RELIED UPON THE DECISI ON OF THE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES P. LTD. 293 ITR 226 (S.C.) AND THUS IT APPEARS THAT THE SAID GR OUND HAS TO BE DECIDED AGAINST THE ASSESSEE AS THE ASSESSEE CANNOT LEAD ITA 748 /CHD/2019 A.Y. 2012-13 PAGE 4 OF 5 EVIDENCE FOR ARGUING THE ALTERNATE GROUND. THE LD. AR STRONGLY OPPOSED THE SAID ARGUMENT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE SAID CLAIM OF THE REVENUE CANNOT BE ALLOWED BECAUSE THE ALTERNATE PRA YER OF THE ASSESSEE RELYING UPON THE DECISION RENDERED BY THE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES P. LTD. W AS IN THE CONTEXT WHERE THE ASSESSEE COULD DEMONSTRATE THAT T HE DEDUCTEES HAD PAID TAX THEREON WHICH EVIDENCES WERE REQUIRED TO BE DEMONSTRATED AND IN SOME CASES WERE AVAILABLE, HOWE VER IN THE FACTS OF THE PRESENT CASE THE FOUNDATIONAL FACT ITS ELF IS TO BE ESTABLISHED NAMELY WHETHER IN THE CASE OF HIMURJA WAS THERE ANY LEGAL MANDATE ON FACTS IN TERMS OF THE AFORESAI D NOTIFICATION IN PURSUANCE TO SECTION 149A(3)(III)(F) OF THE ACT TO DEDUCT TDS. ONCE THE FOUNDATIONAL FACT IS ESTABLISHED, THE CONS EQUENCES AS PER LAW AND FACTS SHALL FOLLOW. ACCORDINGLY, ACCEP TING THE PRAYER OF THE PARTIES BEFORE THE BENCH, THE ISSUES ARE RES TORED BACK TO THE FILE OF THE AO WITH DIRECTION TO PASS A SPEAKIN G ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IN ITS OW N INTERESTS IS DIRECTED TO ENSURE THAT FULL FACTS WITH SUPPORTING EVIDENCES ARE PLACED BEFORE THE SAID AUTHORITY TO TAKE A VIEW. SA ID ORDER WAS ITA 748 /CHD/2019 A.Y. 2012-13 PAGE 5 OF 5 PRONOUNCED AT THE TIME OF VIRTUAL HEARING ITSELF IN THE PRESENCE OF THE PARTIES VIA WEBEX. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 7 TH JANUARY,2021. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER + (, ! -. /. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ 0 / CIT 4. $ 0 ()/ THE CIT(A) 5. .34 5, & 5, 7894:/ DR, ITAT, CHANDIGARH 6. 49 ;%/ GUARD FILE (, $ / BY ORDER, < #/ ASSISTANT REGISTRAR