Samasti Infrastructure Private Limited, Bhubaneswar V. ITO, Ward-1(2), Bhubaneswar

ITA 75/CTK/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4020 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 05-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AMBIKA PRASAD MOHANTY
• Keywords: Principle of natural justice; Condonation of delay
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM . / ITA NO. 75 /CTK/201 8 ( [ [ / ASSESSMENT YEAR : 20 1 3 - 20 1 4 ) SAMASTI INFRASTRUCTURE PVT.LTD PLOT NO.85/A, 2 ND FLOOR, SAMASTI ARCADE, BAPUJI NAGAR, BHUBANESWAR - 751009 C/O CA AMBIKA PRASAD MOHANTY, PATRO & CO., CHARTERED ACCOUNTANTS, BANDHA BASELI, DAGARPADA, CHANDINI CHOWK, CUTTACK - 753002 VS. ITO, WARD - 1(2), BHUBANESWAR ./ ./ PAN/GIR NO. : A AICS 0023 J ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : SHRI AMBIKA PRASAD MOHANTY , AR /REVENUE BY : SHRI SUBHENDU DUTTA , DR / DATE OF HEARING : 13 / 0 8 /201 8 / DATE OF PRONOUNCEMENT 13 / 0 8 /201 8 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 1 , BHUBANESWAR , DATED 07.11.2017 PASSED IN I.T.APPEAL NO. 0167 / 1 6 - 1 7 F OR THE ASSESSMENT YEAR 201 3 - 201 4 . 2. AS PER THE OFFICE NOTE, THERE IS A DELAY OF 12 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT EXPLAINING THE REASONS FOR DELAY. CONSIDERING THE APPLICATION OF ASSESSEE AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND LD. DR HAS NO SERIOUS OBJECTION, WE ALLOW THE APPLICATION AND CONDONE THE DELAY OF 12 DAYS IN FILING THE PRESENT APPEAL AND THE APPEAL IS HEARD FINALLY. ITA NO. 75 /CTK/201 8 2 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT. THE ORDER OF THE ASSESSING OFFICER IS IN CONTRAVENTION OF LAW UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND IS OPPOSED TO THE PRINCIPLE OF NATURAL JUSTICE. 2. FOR THAT, LD. COMMISSIONER O F I NCOME TAX (APPEALS) - I BHUBANESWAR IS WRONG BOTH IN FACTS AND IN LAW IN HOLDING THE ASSESSMENT ORDER VALID WITHOUT A VALID NOTICE U/S 143(2) AND HENCE THE ORDER OF ASSESSING OFFICER IS LIABLE TO BE QUASHED. 3. FOR THAT, LD COMMISSIONER O F INCOME TAX (APPE ALS) - I BHUBANESWAR IS WRONG BOTH IN FACTS AND LAW IN HOLDING THAT NOTICE U/S 143(2) WAS MADE WITHIN PRESCRIBED TIME LIMIT WITHOUT A SPEAKING ORDER AS TO THE DATE OF SERVICE OF FIRST NOTICE. 4. FOR THAT, LD COMMISSIONER O F INCOME TAX (APPEALS) - I BHUBANES WAR IS WRONG IN NOT CONSIDERING THE LAW THAT, THERE IS NO REQUIREMENT OF LAW TO ISSUE SECOND NOTICE AFTER CHANGE OF JURISDICTION OF AO. 5. FOR THAT, LD COMMISSIONER O F INCOME TAX (APPEALS) - I BHUBANESWAR WRONG IN LAW AND FACTS IN NOT CONSIDERING THE LAW SETTLED IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SALARPUR COLD STORAGE PRIVATE LIMITED[2015 ] 228 TAXMAN 48 (MAG.) (ALLAHABAD), THE HON'BLE ALLAHABAD HIGH COURT HAS HELD THAT, 'WHERE THERE IS A FAILURE APPARENT TO ISSUE A NOTICE UNDER SECTION 143(2) WI THIN PRESCRIBED PERIOD, IT CANNOT BE CURED BY TAKING RECOURSE TO SECTION 292BB OF THE INCOME TAX ACT 1961'. 6. THE LD AO HAS ERRED BOTH IN LAW AND IN FACTS IN NOT CONSIDERING GENUINE CLAIM OF DEDUCTION OF THE ASSESSEE TO THE EXTENT OF RS. 12,65,625/ - W ITHOUT FOLLOWING THE PROVISIONS OF LAW U/S 40(A)(IA) HAVING NO DEFAULT OF TDS PROVISIONS AND IGNORING SETTLED POSITION OF LAW THAT, THAT DEPARTMENT CANNOT REALIZE TAX TWICE ON THE SAME INCOME AND IF THE PAYEE HAS PAID TAX ON THE INCOME BY INCLUDING IN HIS ITR THEN THAT EXPENSE CANNOT BE DISALLOWED IF ASSESSEE HAS NOT DEDUCTED TDS ON THE EXPENSE. 7. THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GROUNDS, ADD, ALTER OR MODIFY THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THE APPEAL. 4 . BR IEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF REAL ESTATE AND FILED THE RETURN OF INCOME ELECTRONICALLY ON 28.09.2013 FOR THE A.Y. 201 3 - 201 4 DECLARING TOTAL INCOME OF RS. 8,70,770 / - . THE RETURN OF ITA NO. 75 /CTK/201 8 3 INCOME WAS PROCESSED U/S.143(1) OF THE AC T. S UBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY UNDER CASS AND NOTICES U/S.143(2) & 142(1) OF THE ACT WERE ISSUED. IN COMPLIANCE OF THE SAME, LD. AR APPEARED BEFORE THE AO AND CASE WAS DISCUSSED. THEREAFTER T HE AO COMPLETED THE ASSESSMENT AND PASSED O RDER U/S.143(3) OF THE I.T.ACT , DATED 01.03.2016 MAKING ADDITION U/S.40(A)(IA) OF THE ACT . 5 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS THE CIT(A) AFTER CONSIDERING THE FINDINGS OF THE A O AND SUBMISSIONS OF THE ASSESSEE , DISMISSED THE APPEAL OF THE ASSESSEE. 6 . AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . BEFORE US, AT THE TIME OF HEARING LD. AR OF THE ASSESSEE HAS NOT PRESSED GROUNDS NO . 1 TO 5, ACCORDINGLY, WE DISMISS THE GROUNDS NO.1 TO 5 ARE DISMISSED AS NOT PRESSED. 8. IN RESPECT OF GROUND NO.6, LD. AR SUBMITTED THAT THE AO HAS MADE ADDITION OF RS.12,65,625/ - AFTER APPLYING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT FOR NON - DEDUCT ION OF TDS IN RESPECT OF PAYMENTS AND SUBMITTED THAT THE ASSESSEE IS READY TO EXPLAIN THE DETAILS AND PRAYED FOR ALLOWING THE APPEAL OF THE ASSESSEE. 9. CONTRA, LD.DR SUBMITTED THAT THE ASSESSEE HAS NOT DEDUCTED TDS AND ALSO VIOLATED THE PROVISIONS OF SECT ION 40(A)(IA) OF THE ACT AND, THEREFORE, APPEAL OF THE ASSESSEE BE DISMISSED. ITA NO. 75 /CTK/201 8 4 10 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE SOLE MATRIX OF THE DISPUTED ISSUE WITH RESPECT TO THE ADDITION IN QUESTION MADE BY THE AO I N RESPECT OF NON - DEDUCTION OF TDS U/S.194C, 194H AND 194J OF THE ACT. THE CONTENTION OF LD. AR IS THAT THE ASSESSEE HAS MADE THE PAYMENTS TO THE ADVERTISEMENT AGENCY AND OTHERS AND THIS ADVERTISEMENT AGENCY IS ALSO OFFERING THE INCOME AND THE PAYMENT S ARE THROUGH PROPER BANKING CHANNEL AND FURTHER THE ASSESSEE IS READY TO SUBSTANTIATE THE FACTS THAT THIS ADVERTISEMENT AGENCY HAS OFFERED TH E INCOME IN THEIR INDIVIDUAL INCOME TAX ASSESSMENT S . WE FOUND THE ARGUMENTS OF LD. LD. AR ARE DULY SUPPORTED BY THE PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT AND AS PER THE SECOND PROVISO TO SECTION 40 SUB - CLAUSE (IA) OF CLAUSE (A) , WHICH WAS INSERTED BY THE FINANCE ACT, 20 12 WITH EFFECT FROM 1ST APRIL, 20 13 WHICH READS AS UNDER: 40(A)(IA). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTI ONS 30 TO 38, THE FOLLOWING AMOUNTS SHALL NOT BE DEDUCTED IN COMPUTED THE INCOME CHARGEABLE UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' ** ** ** (IA) THIRTY PER CENT OF ANY SUM PAYABLE TO A RESIDENT, ON WHICH TAX IS DEDUCTIBLE AT SOUR CE UNDER CHAPTER XVII - B AND SUCH TAX HAS NOT BEEN DEDUCTED OR, AFTER DEDUCTION, HAS NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFIED IN SUB - SECTION (1) OF SECTION 139. PROVIDED FURTHER THAT WHERE AN ASSESSEE FAILED TO DEDUCT THE WHOLE OR ANY PART OF THE TAX IN ACCORDANCE WITH THE PROVISION OF CHAPTER - XVII - B ON ANY SUCH SUM BUT IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SUB - SECTION (1) OF SECTION 201, THEN FOR THE PURPOSE OF THIS SUB - CLAUSE IT SHALL BE DEEMED THAT THE ASSESSEE HA S DEDUCTED AND PAID THE TAX ON WHICH SUM OF THE DATE OF FURNISHING OF RETURN OF INCOME BY THE RESIDENT PAYEE REFERRED TO IN THE SAID PROVISO. ITA NO. 75 /CTK/201 8 5 11 . WE FOUND THE ABOVE PROVISION IS EFFECTIVE RETROSPECTIVELY AS PER THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD. [2015] 61 TAXMANN.COM 45 (DELHI) HELD THAT THE PROVISO ADDED U/S.40(A)(IA) OF THE INCOME TAX ACT,1961 WAS RETROSPECTIVE IN OPERATION AND THE ASSESSEE IS ENTITLED TO THE BENEFIT OF THE SAME. ACCORDINGLY , CONSIDERING THE FACTS, PROVISIONS OF THE ACT AND JUDICIAL DECISION, WE REMIT THIS ISSUE TO THE FILE OF AO , WHO SHALL EXAMINE AND VERIFY THE DETAILS OF PAYEE, WHO HAVE OFFERED THEIR INCOME IN THEIR INDIVIDUAL ASSESSMENT AND THE ASSESSEE SHALL COOPER ATE IN SUBMITTING THE DETAILS OF INCOME TAX OF THE PAYEES AND FORM NO.26 BE SUBMITTED AND THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES . O RDER PRONOUNCED IN THE OPEN COURT ON 13 / 0 8 / 201 8 . SD/ - ( N.S.SAINI ) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 13 / 0 8 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY ITA NO. 75 /CTK/201 8 6 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - SAMAST I INFRASTRUCTURE PVT.LTD PLOT NO.85/A, 2 ND FLOOR, SAMASTI ARCADE, BAPUJI NAGAR, BHUBANESWAR - 751009 C/O CA AMBIKA PRASAD MOHANTY, PATRO & CO., CHARTERED ACCOUNTANTS, BANDHA BASELI, DAGARPADA, CHANDINI CHOWK, CUTTACK - 753002 2. / THE RESPONDENT - I TO, WARD - 1(2), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FILE. //TRUE COPY//