State Bank of India, Chandigarh V. ACIT (TDS), Chandigarh

ITA 934/CHANDI/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2325 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-04-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 17-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Principle of natural justice
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS.934 TO 940 /CHD/2012 (ASSESSMENT YEARS: 2008-09 & 2009-10) STATE BANK OF INDIA, VS. THE A.C.I.T.(TDS), (MAIN BRANCH) CHANDIGARH. SECTOR 17, CHANDIGARH. PAN: AAACS8577K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 29.04.2013 DATE OF PRONOUNCEMENT : 29.04.2013 O R D E R PER SUSHMA CHOWLA, J.M. : THESE SEVEN APPEALS FILED BY THE ASSESSEE ARE AGAI NST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (A), CHAND IGARH EACH DATED 15.06.2012 RELATING TO ASSESSMENT YEARS 2008-09 (1 ST TO 4 TH QUARTER) AND ASSESSMENT YEAR 2009-10 (1 ST TO 3 RD QUARTER) AGAINST THE ORDERS PASSED U/S 201(1)/201(1A) OF INCOME TAX ACT, 1961 (IN SHORT T HE ACT). 2. THE COMMON GROUNDS OF APPEAL IN ALL THE APPEALS RAISED BY THE ASSESSEE READ AS UNDER: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED HI LAW AS WELL AS ON FACTS IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 201(1)/201(1A) OF THE ACT HI A SUMMARY MANNER FOR ALLEGED NON-PROSECUTION WHICH IS FACTUALLY INCORRECT WHEREBY FLOUTING THE SETTLED PRINCIPALS O F NATURAL JUSTICE WHICH IS ARBITRARY AND UNJUSTIFIED. 2. THAT THE COUNSEL OF THE ASSESSEE APPEARED BEFORE TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) ON VARIOUS DAT ES BUT WAS ORALLY DIRECTED TO APPEAR BEFORE ACIT (TDS) AND GET THE NECESSARY RECTIFICATIONS DONE AT THAT LEVEL INSTEAD OF PURSUING THE MATTER BEFORE COMMISSIONER OF INCOME TAX (APPEALS) AND AS SUCH TO PRESUME THAT THE APPELLANT DOES NOT WANT TO SAY ANYTHING AS MENTIONED IN THE ORDER IS ARBITRARY, UNJUSTIFIE D AND CONTRARY TO THE FACTUAL POSITION. 2 3. THAT THE WRITTEN SUBMISSIONS WERE SUBMITTED BUT NEVER TAKEN ON RECORD AS THE COUNSEL WAS TIME AND AGAIN DIRECTED T O APPROACH THE ACIT (TDS) AND TO MENTION THAT NO WRITTEN SUBMI SSIONS WERE RECEIVED IS FACTUALLY INCORRECT AND SUCH THE APPELL ATE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 4. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISS IONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING THE ORD ER OF ASSESSING OFFICER WHEREBY A DEMAND OF RS.13,45,370/ - HAS BEEN RAISED FOR ALLEGED SHORT DEDUCTION/COLLECTION OF TA X AND ALLEGED AMOUNT DEDUCTED AND NOT PAID UNDER SECTION 201(1) A ND 201(1 A) OF THE ACT AS THERE HAS BEEN NO SUCH DEFAULT AND AS SUCH THE ORDER PASSED IS ARBITRARY AND UNJUSTIFIED. 5. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOM E TAX IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF T HE CASE AND IS, THUS, UNTENABLE. 4. THE ABOVE-SAID APPEALS FILED BY THE ASSESSEE AG AINST SIMILAR ISSUE RAISED IN THE CASE OF THE ASSESSEE ITSELF, WERE HEA RD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR T HE SAKE OF CONVENIENCE. 5. THE ASSESSEE IS AGGRIEVED BY THE EX-PARTE ORDER PASSED BY THE CIT (APPEALS) AND ALSO NON GRANT OF PROPER OPPORTUNITIE S BOTH BY THE CIT (APPEALS) AND THE ASSESSING OFFICER. THE CASE OF T HE ASSESSEE IS THAT IT HAD FURNISHED STATEMENTS OF TAX DEDUCTION AT SOURCE BY WAY OF E-TDS STATEMENTS. HOWEVER, THE ASSESSING OFFICER FROM TH E INFORMATION AVAILABLE AS PER THE DETAILS OF BANK CHALLANS FOUND DEFAULTS I.E. NON PAYMENT OF TDS AMOUNT DEDUCTED, THE NON/LOW DEDUCTI ON OF TDS AT PRESCRIBED RATES AND LATE PAYMENT OF TAXES. THE AS SESSING OFFICER ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE BUT IT WAS NOTED BY THE ASSESSING OFFICER THAT THE DEFAULTS BEING FACTUAL AND BASED O N THE ENTRIES REPORTED IN THE TDS STATEMENTS AND IN THE ABSENCE OF ANY COR RECTION STATEMENTS BEING FILED BY THE ASSESSEE TO RECTIFY THE DATA ENT RY ERRORS, IF ANY, THE ASSESSEE WAS HELD TO BE A DEFAULT AND CONSEQUENTLY DEMAND WAS RAISED UNDER SECTION 201 (1)AND INTEREST WAS CHARGED UNDER SECTION 201(1A) OF THE ACT. 6. THE CIT (APPEALS) DISMISSED THE APPEAL OF THE AS SESSEE FOR NON- APPEARANCE OBSERVING THAT THOUGH THE APPEAL WAS ADJ OURNED FROM TIME TO 3 TIME BUT NOBODY ATTENDED, NOR ANY ADJOURNMENT WAS S OUGHT, NOR ANY WRITTEN SUBMISSION WAS RECEIVED. 7. THE ASSESSEE IS IN APPEAL AGAINST THE AFORESAID ORDER OF THE CIT (APPEALS). THE LEARNED A.R. FOR THE ASSESSEE POINT ED OUT THAT THE ALLEGATION OF THE CIT (APPEALS) FOR NON-APPEARANCE AND NON-FILING OF WRITTEN SUBMISSIONS WERE INCORRECT. IT WAS POINTED OUT BY THE LEARNED A.R. FOR THE ASSESSEE THAT THE COUNSEL HAD APPEARED BEFORE THE CIT (APPEALS) ON THE RESPECTIVE DATES OF HEARING AND HE WAS DIRECTED TO APPEAR BEFORE THE ACIT(TDS) AND GET THE NECESSARY R ECTIFICATION DONE AT THE LOWER LEVEL. THE ASSESSEE HAD ALSO PREPARED WR ITTEN SUBMISSIONS WHICH WERE NOT TAKEN ON RECORD AS THE COUNSEL WAS D IRECTED TO FILE CORRECTION STATEMENTS BEFORE THE ACIT(TDS) AND GET THE RECTIFICATION DONE. HOWEVER, THE APPEALS WERE DISMISSED BY THE C IT (APPEALS) EX- PARTE. 8. THE LEARNED D.R. FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PRESENT BUNCH OF SEVER APPEALS ARE AGAINST THE ORDE RS OF THE ASSESSING OFFICER PASSED UNDER SECTION 201(1)/201(1A) OF THE ACT. THE ASSESSEE HAD FILED E-TDS QUARTERLY STATEMENTS FOR THE ASSESS MENT YEARS 2008-09 AND 2009-10, QUARTER-WISE. THE ASSESSING OFFICER, HOWEVER, FOUND THAT THERE WAS SHORT/NON PAYMENT OF TDS, NON/LOW DEDUCTI ON OF TDS AT PRESCRIBED RATES AND LATE PAYMENT OF TAXES IN THE Q UARTERLY E-TDS STATEMENTS FILED BY THE ASSESSEE IN THE RESPECTIVE QUARTERS OF ASSESSMENT YEARS 2008-09 AND 2009-10. THE ASSESSING OFFICER I SSUED SHOW CAUSE NOTICE TO THE ASSESSEE TO FURNISH THE CORRECTION ST ATEMENTS, IF ANY, WHICH COULD NOT BE FURNISHED BY THE ASSESSEE IN TIME, THO UGH THE ASSESSEE CLAIMED THAT THE SAME WERE AVAILABLE WITH THE ASSES SEE. THE ASSESSEE WAS HELD TO BE IN DEFAULT AND FOLLOWING DEMANDS WER E RAISED AGAINST THE ASSESSEE: 4 ASST. YEAR / FORM NO. AMOUNT U/S 201(1) AMOUNT U/S 201(1A) QUARTER 2008-09/ 1 ST QUARTER 26Q RS. 8,99,210/- RS. 4,46,160/- 2008-09/ 2 ND QUARTER 26Q RS.32,30,120/- RS.14,20,490/- 2008-09/ 3 RD QUARTER 26Q RS.14,82,140/- RS. 6,46,400/- 2008-09/ 4 TH QUARTER 26Q RS.1,87,44,940/- RS.68,75,210/- 2009-10/ 1 ST QUARTER 26Q RS.87,86,260/- RS.31,39,100/- 2009-10/ 2 ND QUARTER 26Q RS.21,44,540/- RS.7,21,430/- 2009-10/ 3 RD QUARTER 26Q RS.1,17,55,890/- RS.34,04,240/- 10. THE LEARNED A.R. FOR THE ASSESSEE DREW OUR ATTE NTION TO THE AFFIDAVIT OF COUNSEL SHRI RAJEEV SINGHI WHO APPEARE D BEFORE THE CIT (APPEALS) IN WHICH HE STATED THAT HE WAS ORALLY DIR ECTED TO APPEAR BEFORE THE ACIT(TDS) AND GET THE NECESSARY RECTIFICATION D ONE. THE LEARNED A.R. FOR THE ASSESSEE STRESSED THAT THE CORRECTION STATEMENTS WERE AVAILABLE WITH THE ASSESSEE AND SUCH DEMANDS HAVE B EEN WRONGLY RAISED AGAINST THE ASSESSEE. REQUEST WAS MADE BY THE LEAR NED A.R. FOR THE ASSESSEE FOR SENDING BACK THE MATTER TO THE FILE OF THE ACIT(TDS) FOR ADJUDICATING THE ISSUE, TO WHICH THE LEARNED D.R. F OR THE REVENUE HAD NO OBJECTION. 11. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF NO PROPER OPPORTUNITY BEING ALLOWED TO THE ASSESSEE EITHER BY THE ASSESSING OFFICER OR THE CIT (APPEALS), WE ARE OF T HE VIEW THAT THE MATTER NEEDS TO BE LOOKED INTO AT THE LEVEL OF ACIT (TDS) TO DECIDE THE ISSUE OF CHARGEABILITY OF TAX U/S 201(1) OF THE ACT AND INTEREST UNDER SECTION 201(1A) OF THE ACT FOR THE RESPECTIVE QUART ERS OF ASSESSMENT YEARS 2008-09 AND 2009-10. FOLLOWING THE PRINCIPLE S OF NATURAL JUSTICE 5 WE DEEM IT FIT TO RESTORE THE ISSUE BACK TO THE FIL E OF THE ACIT(TDS), WHO SHALL DECIDE THE ISSUE DE-NOVO AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESS EE IS ALSO DIRECTED TO FURNISH COMPLETE INFORMATION BY WAY OF CORRECTION S TATEMENTS OR ANY OTHER DOCUMENTS IN ORDER TO ESTABLISH ITS CASE. TH E ASSESSING OFFICER SHALL DECIDE THE SAID ISSUE IN ACCORDANCE WITH LAW. THE GROUNDS OF APPEAL NOS. 1 TO 3 RAISED BY THE ASSESSEE ARE THUS ALLOWED FOR STATISTICAL PURPOSES. IN VIEW OF OUR SETTING ASIDE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WE ARE NOT ADJUDICATING THE ALTER NATE PLEA RAISED BY THE ASSESSEE ON THE MERITS OF THE ADDITION. 12. IN THE RESULT, ALL THE SEVEN APPEALS FILED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 29 TH APRIL, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6