District Institute of Education & Training, Hardoi V. Income Tax Officer (TDS), Bareilly

ITA 778/LKW/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83423 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 17-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Keywords: Opportunity of being heard
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NOS.778 TO 788/LKW/2014 ASSESSMENT YEARS:2007-08, 2008-09 & 2009-10 DISTRICT INSTITUTE OF EDUCATION & TRAINING NAGHETA ROAD HARDOI V. INCOME TAX OFFICER (TDS) BAREILLY TAN/PAN:LKND05460A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. SANJAY SAXENA, C.A. RESPONDENT BY: SHRI. K. C. MEENA, D.R. DATE OF HEARING: 21 11 2014 DATE OF PRONOUNCEMENT: 03 12 2014 O R D E R PER BENCH: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON COMMON GROUNDS. THEREFORE, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. SINCE COMMON GROUNDS ARE INVOLVED IN THESE APPEALS, WE EXTRACT THE GROUNDS RAISED IN I.T.A. NO. 778/LKW/2014 AS UNDER:- 1) THAT THE DELAY IN FILING THE APPEAL MAY PLEASE BE CONDONED AS THE PAPERS FROM THE OLD PROFESSIONAL WERE RECEIVED VERY LATE AND THE APPEAL COULD NOT BE PREPARED IN TIME. 2) THAT THE ID COMMISSIONER OF INCOME TAX (APPEAL), BAREILLY ERRED ON FACTS AND IN LAW IN PASSING EX-PARTE ORDER. :- 2 -: 3) THAT THE ID COMMISSIONER ON INCOME TAX (APPEAL), BAREILLY ERRED ON FACTS AND IN LAW IN CONFIRMING THE IMPOSITION OF INTEREST U/S 201(1) & 201(1A) OF RS. 60,120/- BY THE INCOME TAX OFFICER (TDS), BAREILLY. 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE ASSESSEE IS A GOVERNMENT ORGANIZATION AND HAS DEDUCTED AND PAID TAX IN TIME, THEREFORE, THE ASSESSEE SHOULD NOT BE HELD TO BE IN DEFAULT UNDER SECTION 201 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') AND INTEREST UNDER SECTION 201(1A) OF THE ACT SHOULD NOT BE CHARGED. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT ALL THESE APPEALS WERE DISPOSED OF BY THE LD. CIT(A) EX- PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE LD. CIT(A) FOR ADJUDICATION OF APPEALS IN THE LIGHT OF THE ASSESSEES CONTENTION AND THE EVIDENCE WITH REGARD TO THE PAYMENT OF TDS. 4. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT THE ASSESSEE HAS NOT PLACED EVIDENCE BEFORE THE ASSESSING OFFICER WITH REGARD TO THE DEDUCTION OF TAX. THE ASSESSEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER ALSO, THEREFORE, THE ASSESSING OFFICER HAS NO OTHER OPTION BUT TO HOLD THE ASSESSEE TO BE IN DEFAULT AND CHARGE INTEREST UNDER SECTION 201(1A) OF THE ACT. 5. HAVING HEARD THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE LD. CIT(A) HAS DISPOSED OF THE APPEALS EX-PARTE BUT BEFORE DECIDING THE THEM HE HAS FIXED THE APPEALS FOR HEARING ON FEW OCCASIONS, BUT NOBODY APPEARED ON BEHALF OF THE ASSESSEE. ONCE THE ASSESSEE HAS FILED APPLICATION FOR ADJOURNMENT WHICH WAS ACCEDED TO BY THE LD. CIT(A), BUT THE ASSESSEE DID NOT APPEAR BEFORE HIM ON THE NEXT DATE FIXED. DURING THE COURSE OF HEARING, IT WAS POINTED OUT THAT THE ASSESSEE HAS DEDUCTED AND PAID T.D.S IN TIME, BUT CREDIT OF THE TDS WAS NOT GIVEN ON ACCOUNT OF :- 3 -: MISMATCH. THEREFORE, THE MATTER MAY BE REFERRED TO THE ASSESSING OFFICER FOR VERIFICATION OF THE DEDUCTION AND DEPOSITION OF TAX. SINCE THESE APPEALS WERE DISPOSED OF EX-PARTE BY THE LD. CIT(A), WE ARE OF THE VIEW THAT LET THE LD. CIT(A) ADJUDICATE THE APPEALS AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO TO MAKE NECESSARY VERIFICATION WITH REGARD TO DEDUCTION AND DEPOSITION OF TAX. IF ANY MISMATCH IS FOUND THEREIN, HE CAN GET IT RECTIFIED BY THE ASSESSEE ITSELF OR BY MAKING NECESSARY VERIFICATION FROM THE CONCERNED OFFICER IN THE LIGHT OF DIRECTIONS ISSUED BY THE CBDT, AS WE HAVE TAKEN A VIEW IN THE CASE OF M/S NANDGANJ SIHORI SUGAR COMPANY LIMITED DARYAPUR, RAEBAREILI VS. INCOME TAX OFFICER (TDS), FAIZABAD IN ITA NOS.676 TO 679/LKW/2014 THAT WHEREVER CREDIT OF TDS IS NOT GIVEN ON ACCOUNT OF MISMATCH, VERIFICATION SHOULD BE DONE AT THE LEVEL OF THE LD. CIT(A). THE OBSERVATION OF THE TRIBUNAL MADE IN THAT CASE IS EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 4. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE LD. CIT(A), WE FIND THAT THE LD. CIT(A) HAVING RELIED UPON THE ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF COURT ONT ITS OWN MOTION VS. UOI AND OTHERS AS WELL AS THE CBDT INSTRUCTION NO.5/2013 DATED 8.7.2013, RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE APPEALS ON MERIT AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE. FOR THE SAKE OF REFERENCE, WE EXTRACT THE RELEVANT PORTION OF THE ORDER OF THE LD. CIT(A) AS UNDER:- I HAVE PERUSED THE FACTS STATED IN 201(1)/201(1A) ORDER AS WELL AS ASSESSEE'S SUBMISSION STATED ABOVE AND I ALSO HEREBY FOLLOW THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF 'COURT ONT' ITS OWN MOTION VS UOI AND OTHERS AS WELL AS CBDT'S INSTRUCTION NO. 5/2013 DATED 8TH JULY 2013 QUOTE FROM F.NO. 275/03/2013- IT(B) ... IN VIEW OF THE ORDER OF THE HON'BLE DELHI HIGH COURT (REFERENCE PARA 50 OF THE ORDER), IT HAS BEEN DECIDED BY THE BOARD THAT WHEN AN ASSESSEE APPROACHES THE ASSESSING OFFICER WITH REQUISITE DETAILS AND PARTICULARS IN THE FORM OF TDS CERTIFICATE AS AN EVIDENCE AGAINST ANY MISMATCHED AMOUNT, THE SAID ASSESSING OFFICER WILL VERIFY WHETHER OR NOT THE DEDUCTOR HAS :- 4 -: MADE PAYMENT OF THE TDS IN THE GOVERNMENT ACCOUNT AND IF THE PAYMENT HAD BEEN MADE, CREDIT OF THE SAME SHOULD BE GIVEN TO THE ASSESSEE. HOWEVER, THE ASSESSING OFFICER IS AT LIBERTY TO ASCERTAIN AND VERIFY THE TRUE AND CORRECT POSITION ABOUT THE TDS CERTIFICATE. SUCH VERIFICATION MAY BE MADE WITH THE RELEVANT AO(TDS). THE AO(TDS) MAY ALSO, IF DEEMED NECESSARY, ISSUE A NOTICE TO THE DEDUCTOR TO COMPEL HIM TO FILE CORRECTION STATEMENT AS PER THE PROCEDURE LAID DOWN. IN THIS REGARD, THE AO(TDS) MAY INVOKE ALL THE POWERS AND AUTHORITY AS AVAILABLE TO HIM/HER AS PER THE INCOME TAX ACT. IF REQUIRED AND NECESSARY, HE/SHE CAN OBTAIN PRIOR APPROVAL OF THE DIRECTOR OR COMMISSIONER OF INCOME TAX. THE AUTHORITIES' CAN ALSO EXAMINE WHETHER GENERAL APPROVAL CAN BE GIVEN. THUS, THE MANNER LAID DOWN BY THE HON'BLE HC IN THE ABOVE MANDAMUS IS A METHOD OF DUE VERIFICATION. THIS MAY BE BROUGHT TO NOTICE OF ALL OFFICERS WORKING UNDER YOUR JURISDICTION FOR COMPLIANCE. HINDI VERSION SHALL FOLLOW..... (ANSHU PRAKASH) DIRECTOR IT(BUDGET), CBDT THE ASSESSING OFFICER IS HEREBY DIRECTED TO VERIFY FROM THE DETAILS OF TDS PAYMENT MADE, AS GIVEN IN PAGES 2 AND 3 OF THIS APPEAL ORDER AND AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE DECIDE THE APPEAL ON MERITS OF THE CASE. 5. IN THIS ORDER, THE LD. CIT(A) HAS PLACED RELIANCE UPON THE ORDER OF THE JURISDICTIONAL HIGH COURT AND THE INSTRUCTION ISSUED BY THE CBDT, BUT INSTEAD OF ADJUDICATING THE APPEALS ON MERIT, THE LD. CIT(A) HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE APPEALS ON MERIT. WHILE ISSUING SUCH DIRECTIONS, THE LD. CIT(A) HAS FORGOTTEN HER OWN POWERS, AS THE APPEALS ARE ALWAYS TO BE DECIDED BY THE APPELLATE AUTHORITIES AND NOT BY THE SUBORDINATE AUTHORITIES OR THE ORIGINAL FORUM, AGAINST WHICH THE APPEAL IS FILED. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE DIRECTION OF THE LD. CIT(A), TO THE ASSESSING OFFICER TO DECIDED THE APPEALS ON MERIT OF THE CASE, IS TOTALLY UNCALLED FOR AND UNWARRANTED. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE LD. CIT(A). 6. WE HAVE RECENTLY RECEIVED A COMMUNICATION FROM THE INCOME TAX OFFICER (TDS), LUCKNOW VIDE LETTER DATED 8.10.2014 STATING THAT THE BOARD HAS CLARIFIED THE POSITION THAT WHERE TDS DEDUCTED AND PAID WERE NOT GIVEN CREDIT THEREOF ON ACCOUNT OF MISMATCH IN THE IN :- 5 -: THE TIN NUMBERS AND APPEAL IS FILED BEFORE THE LD. CIT(A), THE LD. CIT(A) SHOULD EXAMINE THESE FACTS AND AFTER MAKING A PROPER VERIFICATION SHOULD ALLOW RELIEF TO THE ASSESSEE INSTEAD OF REMANDING THE MATTER BACK TO THE ASSESSING OFFICER, AS RECTIFICATION IS ONLY POSSIBLE IF MADE BY THE ASSESSEE HIMSELF/HERSELF AND NOT BY THE ASSESSING OFFICER. IN THE LIGHT OF THIS INSTRUCTION OF THE BOARD, WE SET ASIDE THE ORDER OF THE LD. CIT(A) IN ALL THE CASES AND RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE APPEALS ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO AFTER MAKING NECESSARY VERIFICATION WITH REGARD TO THE PAYMENT OF TDS. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEALS AFRESH IN THE LIGHT OF EVIDENCE OF DEDUCTION AND DEPOSITION OF TAX AT SOURCE. IF NEED BE, THE VERIFICATION CAN ALSO BE DONE BY THE LD. CIT(A) FROM THE CONCERNED OFFICER. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:3 RD DECEMBER, 2014 JJ:2511 :- 6 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR