M/s Optical Paradise, Davangere V. ITO, Davangere

ITA 823/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5526 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS
• Keywords: Recovery proceedings
• Section: 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.823 TO 826/BANG/2016 ASSESSMENT YEAR : 2007-08 TO 2010-11 M/S. OPTICAL PARADISE, M M K COMPLEX, AVK COLLEGE ROAD, DAVANGERE-577002. PAN : BLRA08008A VS. INCOME-TAX OFFICER, TDS WARD, DAVANGERE. APPELLANTS RESPONDENT ASSESSEE BY : NONE REVENUE BY : SMT. SWAPNA DAS, JCIT DATE OF HEARING : 16.03.2017 DATE OF PRONOUNCEMENT : 13 .04.2017 O R D E R PER BENCH THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMPOSITE ORDER OF CIT(A) DATED 30.11.2015 ARISING FROM THE ORDER PASSED UNDER SECTION 201(1) AND 201(1A) OF TH E INCOME TAX ACT FOR THE ASSESSMENT YEARS 2007-08 TO 2010-11 RESPECTIVELY. ITA NO.823 TO 826/BANG/2016 PAGE 2 OF 5 2. COMMON GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN THESE APPEALS AS UNDER: 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL). IN SO FAR IT IS PREJUDICIAL TO THE INTEREST OF THE APPELLANT IS BAD AND ERRONEOUS IN L AW AND AGAINST THE FACT AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED CIT (APPEALS) ERRED IN LAW AND ON FACTS BY DISMISSING THE CASE. 3. SINCE THE RENT PAID HAS ALREADY SUFFERED TAX, TH E APPELLANT IS NOT LIABLE TO PAY TAX ONCE AGAIN. IT H AS BEEN ALREADY HELD IN HINDUSTAN COCO COLA BEVERAGES VS CIT THAT WHEN THE DEDUCTEE HAS ALREADY PAID TAX ON THE INCOME RECEIVED, THERE IS NO NEED TO TAX THE SAME INCOME ONCE AGAIN. 4. THE LEARNED CIT(APPEALS) OUGHT TO HAVE GIVEN OPPORTUNITY TO FURNISH FORM 26 A AND REASONABLE TIME TO MAKE SUBMISSIONS. 5. FORM 26A DULY CERTIFIED BY A CHARTERED ACCOUNTANT IS HEREWITH ENCLOSED. SO WE REQUEST YOU HONOUR TO CONSIDER THE SAME AND ALLOW THE APPEAL 6. FROM AND AMONG THE GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. APPELLANT HEREBY REQUEST YOUR HONOUR TO REJECT THE ASSESSMENT ORDER MADE BY THE ASSESSING OFFICER AND DROP THE RECOVERY PROCEEDINGS . AND FOR THIS ACT OF KINDNESS, MY CLIENT, AS DUTY BO UND, SHALL EVER PRAY. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE SE APPEALS WERE CALLED FOR HEARING. IT IS TRANSPIRED THAT THE ASSESSEE HAS FILED A LETTER IN THE REGISTRY ON 10.03.2017 WH EREBY IT HAS BEEN PRAYED THAT THE ASSESSEE IS NOT ABLE TO APPEAR IN THESE ITA NO.823 TO 826/BANG/2016 PAGE 3 OF 5 APPEALS AND THE WRITTEN SUBMISSIONS FILED ALONG WIT H THE SAID LETTER MAY BE CONSIDERED AS ARGUMENTS OF THE ASSESS EE. ACCORDINGLY, WE PROPOSE TO HEAR AND DISPOSE OFF THE SE APPEALS EX-PARTE. 4. WE HAVE HEARD THE LEARNED DR AND PERUSED THE WRI TTEN SUBMISSIONS FILED BY THE ASSESSEE AS WELL AS RELEVA NT MATERIAL ON RECORD. THE ASSESSEE IS CARRYING OUT BUSINESS AS O PTICIANS IN THE NAME AND STYLE AS M/S. OPTICAL PARADISE. THERE WAS A SURVEY UNDER SECTION 133A OF THE ACT AT THE BUSINESS PREMI SES OF THE ASSESSEE TO VERIFY THE DEDUCTION OF TDS AND COMPLIA NCE FOR THE FINANCIAL YEAR 2006-07 TO 2010-11. THE AO NOTED TH AT THE ASSESSEE HAS BEEN PAYING THE ANNUAL RENT OF RS. 1,2 6,500 FOR HIRING THE BUILDING WITHOUT DEDUCTING THE TAX AT SO URCE. ACCORDINGLY, THE AO PROCEEDED TO PASS THE ORDER UND ER SECTION 201(1) AND 201(1A) OF THE INCOME TAX ACT. THE ASSE SSEE CHALLENGED THE ACTION OF THE AO BEFORE THE CIT(A) B UT COULD NOT SUCCEED. 5. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS RAI SED THE CONTENTION THAT THE RECIPIENT OF THE RENT HAS OFFER ED THE AMOUNT TO TAX AND THEREFORE AS PER THE PROVISIONS OF SECTION 201, THE ASSESSEE CANNOT BE HELD AS ASSESSEE IN DEFAULT. ON THE OTHER HAND, THE LEARNED DR HAS SUBMITTED THAT THE ASSESSEE HAS NOT RAISED THIS CONTENTION BEFORE THE AUTHORITIES BELOW. SHE HAS R ELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. ITA NO.823 TO 826/BANG/2016 PAGE 4 OF 5 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RECORD, WE FIND THAT NEITHER THE AO NOR THE CIT(A) HAS EXAMINED THIS FACT WHETHER THE RECIPIENT OF THE RENT HAS OFFERED THE SAME TO TAX. THE ASSESSEE IN THE WRITT EN SUBMISSIONS HAS SPECIFICALLY PLEADED THAT THE RECIPIENT HAS ALR EADY PAID TAX ON THE INCOME RECEIVED AND THEREFORE, NO NEED TO TAX T HE ASSESSEE ONCE AGAIN. ACCORDINGLY, IN VIEW OF THE FACT THAT THE AUTHORITIES BELOW HAVE NOT EXAMINED THIS FACT, WE SET ASIDE THE ENTIRE MATTER TO THE RECORD OF THE AO FOR PROPER VERIFICATION OF THIS FACT AND THEN DECIDE THE SAME AS PER LAW. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN APPROPRIATE OPPORTUNITY OF HEARING. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF APRIL, 2017. SD/- SD/- (A. K. GARODIA) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE. DATED: 13 TH APRIL, 2017. /NSHYLU/ ITA NO.823 TO 826/BANG/2016 PAGE 5 OF 5 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.