Dev Prakash Gupta, Bangalore V. ITO, Bangalore

ITA 811/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7525 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAMBIRAJAN
• Assessee Lawyers: BALARAM R RAO
• Keywords: Recovery proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, B E NGAL U R U BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 811 / BANG/20 16 (ASSESSMENT YEAR: 20 09 - 10 ) SHRI DEV PRAKASH GUPTA, NO.5 & 6, MILIA BUILDING, N .R.ROAD, BENGALURU - 560002. PAN:ACQPG 1933 Q VS. APPELLANT INCOME - TAX OFFICER, WARD 1(4), BENGALURU. RESPONDENT APPELLANT BY : SHRI BALARAM R RAO, ADVOCATE. RESPONDENT BY : SHRI NAMBIRAJAN, ADDL.CIT(DR) DATE OF HEARING : 25/09/2017 DATE OF PRONOUNCEMENT : 28 / 09/2017 O R D E R PER I NTURI RAMA RAO, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - 5 , BANGALORE, [ CIT(A) FOR SHORT ] DATED 16/05/ 2016 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE ASSESSEE RAISED THE FOLLOWING THE GROUNDS OF APPEAL AND ADDITIONAL GROUND S : ITA NO . 811 /BANG/201 6 PAGE 2 OF 5 3. BRIEFLY FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009 - 10 WAS FILED DISC LOSING INCOME OF RS.33,86,800 - . IT WAS STATED THAT THE ASSESSEE ALSO MADE A CLAIM FOR CREDIT OF TDS OF RS.7,68,300/ - ON RENTAL INCOME RECEIVED FROM M/S.INNOVATIVE STUDI O S (P) LTD.. AGAINST SAID RETURN OF INCOME, THE ASSESSING OFFICER PASSED ASSESSMENT OR DER U/S 143(3) R.W.S. 147 VIDE ORDER DATED 22/09/2005 WITHOUT GRANTING CREDIT FOR TDS CLAIM OF RS.7,68,300/ - . 4. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE CIT(A) , WHO VIDE IMPUGNED ORDER , DISMISSED THE APPEAL ON THE GROUND THAT THERE WAS NO EVIDE NCE BROUGHT ON RECORD TO SHOW THAT M/S.INNOVATIVE STUDIOS (P)LTD. HAD ACTUALLY DEDUCTED TAX AT ITA NO . 811 /BANG/201 6 PAGE 3 OF 5 SOURCE NOR FORM NO.16 ISSUED BY THE DEDUCTOR WAS FILED DURING THE COURSE OF HEARING. 5. BEING AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. LEARNED COUNSEL FOR ASSESSEE VEHEMENTLY CONTENDED THAT AS PER LETTER ISSUED BY M/S.INNOVATIVE STUDIOS (P) LTD., TAX WAS DEDUCTED AT THE RATE OF RS.68,500/ - P.M. AND DRAWN OUR ATTENTION TO PAGES 1 TO 8 OF THE PAPER BOOK WHEREIN COPIES OF LETTERS ISSUED BY THE SAID PARTY SHOWING DEDUCTION OF TAX AT SOURCE AT THE RATE OF 16.995% ON MONTHLY RENTAL INCOME OF RS.4,03,200/ - WAS SHOWN. THEREFORE, IT IS CLAIMED THAT AS PER THE RATIO LAID DOWN BY THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SMT.ANUSUYA ALV A VS. DCIT (278 ITR 206)(KAR), CREDIT SHOULD BE ALLOWED TO THE ASSESSEE AND RECOVERY OF TAX FROM THE ASSESSEE SHOULD NOT BE ENFORCED FOR DEFAULT OF DEDUCTOR TO REMIT THE AMOUNT TO THE ACCOUNT OF THE CENTRAL GOVERNMENT. ON THE OTHER HAND, LEARNED DEPARTMEN TAL REPRESENTATIVE VEHEMENTLY ARGUED THAT IN ABSENCE OF ANY EVIDENCE FOR DEDUCTION OF TAX AT SOURCE, CREDIT CANNOT BE GIVEN. HE PLACED RELIANCE ON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. TH E ONLY ISSUE IN THE PRESENT APPEAL IS WHETHER THE AO WAS JUSTIFIED IN DENYING CREDIT FOR TDS AMOUNT OF RS.7,68,300/ - . NO DOUBT, THERE WAS NO EVIDENCE OF TDS MADE FROM THE ASSESSEE EITHER IN THE FORM OF CHALLAN OR FORM NO.16 ISSUED BY THE ITA NO . 811 /BANG/201 6 PAGE 4 OF 5 DEDUCTOR. THE WH OLE CLAIM WAS MADE BASED ON COMMUNICATION LETTERS ISSUED BY THE DEDUCTOR I.E. M/S.INNOVATIVE STUDIOS (P) LTD. THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SMT.ANUSUYA (SUPRA) LAID DOWN THAT IN CASES WHERE TAX WAS DEDUCTED AND DEDUCTOR FAILED TO RE MIT THE AMOUNT TO C ENTRAL GOVERNMENT, CREDIT TO THE ASSESSEE SHALL NOT BE DENIED AND THE REVENUE IS SUPPOSED TO RECOVER THE AMOUNT ONLY FROM THE PAYER OF THE AMOUNT I.E. THE DEDUCTOR AND THE REVENUE IS STOPPED FROM ENFORCING THE DEMAND FROM THE RECIPIENT O F INCOME. BUT IN THE PRESENT CASE, THERE WAS NO EVIDENCE OF DEDUCTING AMOUNT EXCEPT LETTERS ISSUED BY THE PAYER OF THE AMOUNT. IN THE CIRCUMSTANCES, WE REMAND THIS ISSUE BACK TO THE FILE OF THE AO TO VERIFY WHETHER TAX WAS ACTUALLY DEDUCTED BY THE PAYER I.E. M/S.INNOVATIVE STUDIOS (P) LTD AND IF SO, GRANT CREDIT FOR THE SAME IN THE HANDS OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 TH SEPTEMBER , 2017 S D / - S D / - (VIJAY PAL RAO) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT M EMBER PLACE : B ENGALURU. D A T E D : 2 8 / 0 9 /2017. SRINIVASULU, SPS ITA NO . 811 /BANG/201 6 PAGE 5 OF 5 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - 4 CIT 5 DR, ITAT, BANGALORE . 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALOR E