YUDHISTER TAK, Jaipur V. ACIT, BANGLORE

ITA 814/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4992 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 30-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Assessee Lawyers: SUBHASH PORWAL
• Keywords: Additional evidence

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 814/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 SHRI YUDHISTER TAK 4/8, SUNDER NAGAR, BEAWAR CUKE VS. THE ACIT (CPC) BANGALORE LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABRPT 1766 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SUBHASH PORWAL, CA JKTLO DH VKSJ LS@ REVENUE BY: SHRI R.A. VERMA, ADDL.CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31 /10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 07-09-2015 FOR THE ASSESSMENT YEAR 2012 -13 WHEREIN THE ASSESSEE IS AGGRIEVED THAT THE LD. CIT(A) HAS ERRED IN :- ( 1) NON GRANTING TCS CREDIT OF RS. 4,11,706/- WITHOU T CONSIDERING THE FACTS. 2.1 AT THE TIME OF HEARING, THE LD. AR OF THE ASSES SEE PRAYED THAT THE LD. CIT(A) HAS NOT GRANTED THE TCS CREDIT OF RS. 4,11,7 06/-WITHOUT CONSIDERING THE FACTS. ITA NO. 814/JP/2015 SHRI YUDHISTER TAK VS. ACIT (CPC), BANGALORE . 2 2.2 THE LD. DR RELIED ON THE ORDER OF THE LD. CIT(A ). 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FOR THE SAKE OF CONVENIENCE AN D BREVITY OF THE CASE, IT WILL BE IMPERATIVE TO TAKE INTO CONSIDERATION TH E REASON FOR NOT GRANTING THE TCS CREDIT OF RS. 4,11,706/- TO THE ASSESSEE BY THE LD. CIT(A). THEREFORE, THE OBSERVATION OF THE LD. CIT(A) IS REP RODUCED AS UNDER:- 4.3 I HAVE GONE THROUGH THE STATEMENT OF FACTS, GROUNDS OF APPEAL AND WRITTEN SUBMISSION CAREFULLY. IT IS SEEN FROM THE DETAILED SUBMISSION MADE BY THE APPELLANT THAT THE TCS WAS ADDITIONAL EVIDENCE IN THE NAMES OF SHRI OM PRAKASH TAK, SHRI ANIL SINGH AND SHRI SANJAY TAK AN D NOT IN THE NAME OF THE APPELLANT. THE APPELLANT HAS RELIED MAINLY ON SECTION 199 R.W.RULE 37BA. IT CAN BE SEEN THAT BOTH SECTION 199 AND RULE 37BA SPEAK ABOUT TAX DEDUCTED AT SOURCE AND NOT TCS. FURTHER, IN RULE 37BA, IT IS CLEARLY MENTIONED THAT CREDIT F OR THE TAX DEDUCTED AT SOURCE SHALL BE GIVEN TO A PERSON TO WH OM PAYMENT HAS BEEN MADE OR CREDIT HAS BEEN GIVEN (DED UCTEE) ON THE BASIS OF INFORMATION RELATING TO DEDUCTION O F TAX FURNISHED BY THE DEDUCTOR TO THE INCOME TAX AUTHORI TY OR THE PERSON AUTHORIZED BY SUCH AUTHORITY. IN THE CASE UN DER CONSIDERATION, THE DEDUCTEES WERE SHRI OM PRAKASH T AK, SHRI ANIL SINGH AND SHRI SANJAY TAK AND THE DEDUCTOR HAS FURNISHED INFORMATION STATING THAT TAX HAS BEEN COL LECTED AT SOURCE IN THE NAME OF SHRI OM PRAKASH TAK, SHRI AN IL SINGH AND SHRI SANJAY TAK. AS FAR AS SUB-RULE (2) OF 37BA IS CONCERNED, THE APPELLANT HAS NOT FULFILLED THE COND ITIONS LAID DOWN IN THE PROVISO TO SUB-RULE(2). THEREFORE, NO C REDIT CAN BE GIVEN TO THE APPELLANT. SUB-RULE (4) STATES THAT CREDIT FOR THE TAX DEDUCTED AT SOURCE SHALL BE GRANTED ON THE BASIS OF INFORMATION RELATING TO DEDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE INCOME TAX AUTHORITY OR THE PERSON AUTHORIZED ITA NO. 814/JP/2015 SHRI YUDHISTER TAK VS. ACIT (CPC), BANGALORE . 3 BY SUCH AUTHORITY. AS IN THE CASE UNDER CONSIDERATI ON, THE DEDUCTOR HAS INFORMED THAT NAMES OF THE PERSONS IN RESPECT OF WHOM THE TAX HAS BEEN COLLECTED AT SOURCE AT SH RI OM PRAKASH TAK, SHRI ANIL SINGH AND SHRI SANJAY TAK, T HEREFORE, I AM OF THE CONCERNED VIEW THAT CPC BANGALORE WAS J USTIFIED IN NOT GIVING CREDIT OF TDS OF RS. 4,11,706/- CLAIM ED BY THE ASSESSEE. THE APPELLANT HAS FILED COPY OF THE CIT ( A), AJMER ORDER DATED 7-03-2012 BUT WITH DUE RESPECT TO MY PREDECESSOR, FOR THE REASONS DISCUSSED ABOVE, I DO NOT AGREE WITH HIS VIEW ON THIS ISSUE. OTHER DECISIONS RELIED UPON BY THE APPELLANT HAVE BEEN GIVEN ON DIFFERENT SET OF F ACTS AND ARE NOT APPLICABLE TO THE CASE UNDER CONSIDERATION. FURTHER, THE CLAIM OF THE APPELLANT THAT ALL THE INCOME OF S HRI OM PRAKASH TAK, SHRI ANIL SINGH AND SHRI SANJAY TAK FR OM LIQUOR SHOP ALLOTTED TO HER HAS BEEN INCLUDED IN TH E INCOME OF THE APPELLANT IS ALSO NOT FULLY VERIFIABLE FROM THE DOCUMENTS FILED BY THE APPELLANT. ACCORDINGLY, I AM OF THE CO NSIDERED VIEW THAT NO CREDIT FOR THE TCS OF RS. 4,11,706/- C AN BE GIVEN TO THE APPELLANT. HENCE, THE GROUND OF APPEAL OF THE APPELLANT IS DISMISSED. 2.3.1 IT IS ALSO NOTED THAT EARLIER SUCH TYPE OF IS SUE HAS BEEN RESTORED BY ITAT (SMC) BENCH TO THE AO VIDE ITS ORDERS DATED 21 -04-2016 IN THE FOLLOWING CASES. 1. SMT. NIRMALA MEWARA VS. ACIT (CPC) IN ITA NO. 813/JP/2015 FOR THE ASSESSMENT YEAR 2012-13. 2. SMT. TEEJA DEVI TAK VS. ACIT (CPC) IN ITA NO. 730/JP/2015 FOR THE ASSESSMENT YEAR 2012-13. 3. SMT. ANITA TAK VS. ACIT (CPC) IN ITA NO. 729/JP/ 2015 FOR THE ASSESSMENT YEAR 2012-13. ITA NO. 814/JP/2015 SHRI YUDHISTER TAK VS. ACIT (CPC), BANGALORE . 4 THERE ARE SIMILAR OBSERVATIONS BY ITAT (SMC) IN THE ABOVE CASES WHICH ARE REPRODUCED AS UNDER- 5.1..IN MY OPINION THE FACTS SUCH AS THE POSITION OF INCOME-TAX RETURN AND THE ORIGINAL ALLO TTEE AND THE DETAILS OF THE TCS REFLECTED IN THE BOOKS OF AC COUNTS OF THE ASSESSEE ETC. ARE SUBJECT TO VERIFICATION. NO S UCH VERIFICATION HAD SO FAR BEEN MADE BY THE REVENUE AUTHORITIES. THIS ISSUE CAN ONLY BE SETTLED IF THE FACTS REGARDING THE MANNER IN WHICH THE TCS WAS COUPLED WITH THE MANNER IN WHICH THE INCOME-TAX RETURNS HAVE BEE N FILED CAN BE DECIDED BUT TO BE READ ALONGWITH THE RELEVAN T PROVISIONS OF THE I.T. ACT, NAMELY RULE 37BA AND TH E CONCERNED PROVISIONS OF THE ACT. THE AO IS NOT ONLY THE INVESTIGATOR BUT ALSO AN ADJUDICATOR, THEREFORE, I DEEM IT JUSTIFIABLE TO RESTORE THIS ISSUE BACK TO THE FILE OF THE AO TO BE DECIDED DE NOVO AS PER LAW, NEEDLESS TO MENTION, AF TER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE THE MATTER HAS BEEN RESTORED, THEREFORE, THE GROUNDS RAISED MAY BE TREATED AS ALLOWED BUT FOR STATISTICA L PURPOSES ONLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. IT IS ALSO NOTED THAT THE ISSUE OF THE ASSESSEE IS SIMILAR WITH THE ISSUE OF THE ABOVE PARTIES (SUPRA) WHEREIN THE ITAT (SMC) JA IPUR BENCH VIDE ITS ORDERS DATED 21-04-2016 HAD RESTORED THE ISSUE TO T HE FILE OF THE AO TO BE DECIDED DE NOVO. RESPECTFULLY, FOLLOWING THE ORDERS DATED 21-04-2016 OF ITAT (SMC) JAIPUR BENCH IN THE CASE OF THE ABOVE PA RTIES, THE APPEAL OF THE ASSESSEE I.E. SHRI YUDHISTER TAK IS ALSO SET AS IDE TO THE FILE OF THE AO TO BE DECIDED DE NOVO IN TERMS OF THE ORDERS DATED 21-04-2016. THUS THE ITA NO. 814/JP/2015 SHRI YUDHISTER TAK VS. ACIT (CPC), BANGALORE . 5 APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES AS INDICATED ABOVE. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/201 6 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31/10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI YUDHISTER TAK, BEAWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT (CPC), BANGALORE 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 814/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR