DCIT(TDS) CIR-58, KOLKATA, Kolkata V. Oriental bank of Commerce, Kolkata

ITA 813/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9458 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN JCITSRDR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 813 / KOL / 2014 ASSESSMENT YEAR :2009-10 DCIT(TDS), CIRCLE-58, 10B, MIDDLETON ROAD, KOLKATA-71 V/S . ORIENTAL BANK OF COMMERCE, 112, ASHOTOSH MUKHERJEE ROAD BRANCH, KOLKATA-25 [ PAN NO.AAACO 0191 M ] /APPELLANT .. / RESPONDENT /BY APPELLANT MD. GHAYAS UDDIN, JCIT-SR-DR /BY RESPONDENT NONE /DATE OF HEARING 23-01-2017 /DATE OF PRONOUNCEMENT 08-02-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XX, KOLKATA DA TED 24.01.2014. ASSESSMENT WAS FRAMED BY ACIT(TDS), CIRCLE-58, KOLK ATA U/S 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS ORDER DATED 30.03.2011 FOR ASSESSMENT YEAR 2009-10. 2. NONE APPEARED ON BEHALF OF ASSESSEE THOUGH NOTIC E OF HEARING WAS SENT TO ASSESSEE THROUGH RPAD. HOWEVER WE DECIDED T O HEAR THE PRESENT APPEAL WHERE WE FIND THAT THE HEARING IS POSSIBLE W ITHOUT THE APPEARANCE OF ITA NO.813/KOL/2014 A.Y. 2009-10 DCIT(TDS), CIR-58 KOL. VS. ORIENTAL BANK OF COMMERCE P AGE 2 ASSESSEE OR BY LD. AR. MD. GHAYAS UDDIN, LD. SENIOR DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF REVENUE. 3. ONLY ISSUE RAISED BY REVENUE IN THIS APPEAL IS T HAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF SHORT DEDUCTION OF TDS ON THE PAYMENT OF INTEREST ON SECU RITIES. 4. BRIEFLY, THE FACTS ARE THAT ASSESSEE IN THE PRES ENT CASE IS A SCHEDULED BANK AND ENGAGED IN THE BANKING BUSINESS. THE ASSES SEE IN THE YEAR UNDER CONSIDERATION HAS MADE THE PAYMENT OF INTEREST ON S ECURITIES WITHOUT DEDUCTING TDS. THEREFORE, THE AO HAS RAISED DEMAND FOR TDS AND INTEREST U/S. 201(1)/201(1A) OF THE ACT BY TREATING THE ASSE SSEE IN DEFAULT. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO DELETED THE ADDITION BY OBSERVING AS UNDER:- 3. THERE IS ONLY ONE ISSUE INVOLVED IN ALL THE GRO UNDS OF APPEAL WHICH RELATES TO CONTENTION OF THE APPELLANT AGAINST DEMA ND RAISED UNDER ORDER PASSED U/S 201/201(1A) OF THE IT ACT, 1961 BY THE AO. THE FACT OF THE CASE IS THAT THE AO FOUND THAT THERE WAS SHORT DEDUCTION OF TAX DURING THE YEAR AND THEREFORE HE PASSED THE ORDER U /S. 201(1)/201(1A) AND RAISED A TOTAL DEMAND OF RS.10,44,960/-. HOWEVE R, THE APPELLANT FILED A COPY OF CERTIFICATE ISSUED BY ACIT, CIRCLE- 3, KOLKATA U/S 197(1) OF THE IT ACT, 1961 DATED 19.03.2008 BY WHICH TAX WAS TO BE DEDUCTED AT 0.10% OUT OF PAYMENTS WERE TO BE MADE TO M/S. THE P EERLESS GENERAL FINANCE AND INVESTMENT COMPANY LTD. THE CERTIFICATE WAS VALID FROM 01.04.2008 TO 31.03.09. THE AO HAD NOT CONSIDERED T HE COPY OF CERTIFICATE FURNISHED BY THEM, THEREBY, THE TAX WAS DEDUCTED AND DEPOSITED AS PER IT ACT, 1961 AND THERE WAS NO SHOR T DEDUCTION OF TAX AS HELD BY THE AO. AFTER GOING THROUGH THE FACTS AN D CIRCUMSTANCES OF THE CASE, I FIND MERIT IN THE ARGUMENT OF THE APPEL LANT THAT THE TAX WAS DEDUCTED ON THE BASIS OF CERTIFICATE ISSUED U/S. 19 7(1) OF THE IT ACT, 1961. THEREFORE, THERE WAS NO SHORT DEDUCTION OF TA X ON THE PART OF THE APPELLANT. HENCE, APPEAL ON THIS GROUND IS ALLOWED. AGGRIEVED BY THIS, REVENUE HAS COME UP IN APPEAL BE FORE US ON FOLLOWING GROUND, WHICH REPRODUCED:- ITA NO.813/KOL/2014 A.Y. 2009-10 DCIT(TDS), CIR-58 KOL. VS. ORIENTAL BANK OF COMMERCE P AGE 3 1. THAT ON THE FACT AND IN THE CIRCUMSTANCES IN TH E CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY AO ON TH E GROUND OF SHORT DEDUCTION OF TDS ON PAYMENT OF INTEREST ON SECURITI ES. 6. BEFORE US LD. DR SUBMITTED THAT ASSESSEE FAILED TO FURNISH CERTIFICATE ISSUED U/S. 197 OF THE ACT BEFORE AO AT THE TIME OF ASSESSMENT PROCEEDINGS. THE CERTIFICATE WAS PRODUCED BEFORE APPELLATE STAGE FOR THE FIRST TIME BY ASSESSEE BEFORE THE LD. CIT(A) WHICH WAS ADMITTED I N CONTRAVENTION OF THE PROVISION OF RULE 46A OF THE INCOME TAX RULES, 1962 . HE FURTHER SUBMITTED THAT THE TDS CERTIFICATE U/S 197 OF THE ACT WHICH W AS SUBMITTED BEFORE LD. CIT(A) AT THE TIME OF APPELLATE STAGE WAS ISSUED BY ACIT, CIRCLE-3, KOLKATA, WHICH, IN FACT, SHOULD HAVE BEEN ISSUED BY TDS AUTH ORITIES. LD. DR VEHEMENTLY RELIED ON THE ORDER OF AO. 7. HEARD LD. DR AND PERUSED AND CAREFULLY CONSIDERE D THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO NON-DEDUCTION OF TDS ON THE PAYMENT OF INTEREST ON SECURITIES. HOWEV ER, LD. CIT(A) DELETED THE ADDITION MADE BY AO BY HAVING RELIANCE ON THE CERTI FICATE ISSUED U/S 197 OF THE ACT. IT IS SETTLED PROPOSITION OF LAW WHERE THE PAYEE ISSUES CERTIFICATE TO THE DEDUCTOR U/S. 197 OF THE ACT THEN THE TDS NEEDS TO BE DEDUCTED @ SPECIFIED IN THE CERTIFICATE WHICH IS ISSUED BY THE TDS AUTHO RITIES. HOWEVER, ON PERUSAL OF ORDER OF AUTHORITIES BELOW, WE FIND THE FOLLOWIN G DEFECTS IN THE ORDER OF LD. CIT(A):- I) ADDITIONAL EVIDENCE IN THE FORM OF CERTIFICATE U/S 197 OF THE ACT HAS BEEN ACCEPTED BY LD. CIT(A) IN CONTRAVENTION OF THE RULE 46A OF IT RULES, 1962 II) TDS CERTIFICATE HAS BEEN ISSUED BY ACIT, CIRCL E-3, KOLKATA WHICH IN OUR CONSIDERED VIEW SHOULD HAVE BEEN ISSUED BY T HE TDS AUTHORITIES. IN THIS VIEW OF THE MATTER, WE ARE INCLINED TO REST ORE THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AS PER LAW WITH A DIRECTION TO VERIFY ITA NO.813/KOL/2014 A.Y. 2009-10 DCIT(TDS), CIR-58 KOL. VS. ORIENTAL BANK OF COMMERCE P AGE 4 THE CERTIFICATE WHICH WAS PRODUCED BEFORE LD. CIT(A ) AND ADJUDICATE THE MATTER ACCORDINGLY. HENCE, THIS GROUND OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, REVENUES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 08/ 02/2017 SD/- SD/- ( !') ( !') (A.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 08 / 02 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT(TDS), CIRCLE-58, 10B, MIDDLETON ROA D, KOLKATA-71 2. /RESPONDENT-ORIENTAL BANK OF COMMERCE, 112, ASHOTOS H MUKHERJEE RD. KOL-25 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,