M/s. Sushil Chand Contractor and Company, Meerut V. ITO, Meerut

ITA 968/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5380 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 17-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: P K DUBLISH
• Keywords: Principle of natural justice
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.968/DEL./2015 ASSESSMENT YEAR 2009-2010 M/S. SUSHIL CHAND CONTRACTOR & CO. MAWANA, MEERUT. C/O.SH.PK DUBLISH, ADVOCATE, 205/5, THAPAR NAGAR, MEERUT 250 001. PAN ABAFS2670M VS THE INCOME TAX OFFICER, WARD-2(3), MEERUT. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI P.K. DUBLISH, ADVOCATE FOR REVENUE : SHRI KAUSHLENDRA TIWARI, SR.DR DATE OF HEARING : 26.03.2018 DATE OF PRONOUNCEMENT : 03 .04.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), MEERUT, DATED 17 TH DECEMBER, 2014, FOR THE A.Y. 2009-2010 ON THE FOLLOWING GROUNDS : 2 ITA.NO.968/DEL./2015 M/S. SUSHIL CHAND CONTRACTOR & CO. MAWANA, MEERUT. 1. THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN LAW IN CONFIRMING THE I LLEGAL ORDER PASSED BY THE ASSESSING OFFICER U/S 154 OF I. T. ACT, REJECTING THE CLAIM OF REFUND OF THE APPELLANT FIRM ON THE GROUND OF NON-MATCHING OF TDS AMOUNT ON WEBSITE OF NSDL. 2. THAT ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN LAW IN NOT ALLOWING THE CREDIT OF PREPAID TAXES (TDS) TO THE APPELLANT FIRM. 3. THAT AT ANY RATE THE ORDER PASSED BY THE LE ARNED ASSESSING OFFICER U/S 154 AND CONFIRMED BY THE LEAR NED CIT(A) IS ILLEGAL, ARBITRARY AND BAD IN LAW. ON THE MERIT OF THE CASE, THE CLAIM OF TDS AMOUNTING TO RS.1,31,451 /- MADE BY THE APPELLANT FIRM U/S 154 OF I.T. ACT OUGH T TO HAVE BEEN ALLOWED. 4. THAT THE ORDER PASSED BY THE LEARNED ASSESS ING OFFICER U/S 154 OF I.T. ACT AND CONFIRMED BY THE LE ARNED CIT(A) IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND THE PROVISIONS OF INCOME TAX LAW. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT FOR A.Y . 2009- 2010, ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 17 TH JANUARY, 2011. DURING ASSESSMENT PROCEEDINGS, THE A .O. DID NOT ALLOW CREDIT OF TDS AMOUNT TO RS.1,31,451/-. TH E ASSESSEE 3 ITA.NO.968/DEL./2015 M/S. SUSHIL CHAND CONTRACTOR & CO. MAWANA, MEERUT. FILED APPLICATION UNDER SECTION 154 FOR ALLOWING TH E CREDIT OF RS.1,31,451/-. THE ASSESSEE REQUESTED THE A.O. TO R EFUND THE AMOUNT WHICH IS PAYABLE TO THE ASSESSEE. THE A.O. I N THE LETTER ADDRESSED TO THE ASSESSEE INFORMED HIM THAT HIS ASS ESSMENT HAS BEEN REVISED UNDER SECTION 154 OF THE ACT AND R EFUND WILL BE ISSUED TO HIM AFTER APPROVAL OF JCIT. HOWEVER, T HE A.O. AGAIN WROTE A LETTER TO THE ASSESSEE THAT JCIT, RANGE-II, MEERUT HAS REJECTED THE REQUEST FOR APPROVAL OF REFUND DUE TO NON-MATCHING OF TDS AMOUNT. THE A.O. FURTHER INFORMED TO ASSESSE E THAT HIS PETITION UNDER SECTION 154 OF THE I.T. ACT IS REJEC TED. THE ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A). TH E LD. CIT(A) ALSO SIMILARLY NOTED THAT AS PER PRACTICE PREVALENT IN THE DEPARTMENT, BEFORE ISSUING ANY REFUND OF MORE THAN RS.1 LAKH, THE A.O. HAS TO TAKE ONLINE APPROVAL OF THE RANGE H EAD. THE RANGE HEAD GIVES HIS APPROVAL ONLY WHEN PRE-PAID TA X CLAIMED BY ASSESSEE IS REFLECTED IN THE ONLINE RECORD OF TH E ASSESSEE. THE APPEAL OF ASSESSEE WAS ACCORDINGLY REJECTED. 4 ITA.NO.968/DEL./2015 M/S. SUSHIL CHAND CONTRACTOR & CO. MAWANA, MEERUT. 3. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT TH E LEVEL OF THE A.O. THE ASSESSEE FILED COPY OF THE TDS CERTIFICATE S IN THE PAPER BOOK FROM PAGES 44 TO 49. THE DEPARTMENT HAS MAINTA INED ONLINE SYSTEM AND ONLY ON THAT BASIS, THE DEPARTMEN T CLAIMED THAT REFUND COULD BE ALLOWED TO THE ASSESSEE IF THE ONLINE SYSTEM SHOWS THE CREDIT OF TDS. THE ASSESSEE HAS NO CONTRO L OVER THE SAME. THE ASSESSEE, AT THE MOST, COULD PRODUCE THE TDS CERTIFICATES WHICH COULD HAVE BEEN VERIFIED BY THE A.O. BEFORE GIVING CREDIT OF TDS TO THE ASSESSEE. IN CASE, THER E IS NO MATCHING OF TDS AMOUNT ON ONLINE, ACCORDING TO A.O, THE ASSESSEE WOULD NEVER GET REFUND OF THE SAME AMOUNTS . IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THIS POINT CO ULD NOT BE CONSIDERED IN FAVOUR OF THE REVENUE. THE ASSESSEE C ANNOT BE FAULTED FOR THE ONLINE SYSTEM NOT SHOWING THE CREDI T IN THE HANDS OF THE ASSESSEE. IN SUCH A SITUATION, EITHER THE ONLINE SYSTEM SHOULD BE UPDATED OR THE A.O. SHOULD HAVE VE RIFIED THE FACTS MANUALLY. THE ASSESSEE CANNOT BE PENALIZED FO R THE SAME. THE LD. D.R. ALSO SUGGESTED THAT THE MATTER MAY BE REMANDED 5 ITA.NO.968/DEL./2015 M/S. SUSHIL CHAND CONTRACTOR & CO. MAWANA, MEERUT. TO THE FILE OF A.O. FOR VERIFICATION OF THE FACTS. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF A.O. WIT H A DIRECTION TO RE-DECIDE THE ISSUE IN ACCORDANCE WITH LAW, AFTER V ERIFYING THE TDS CERTIFICATES MANUALLY, PRODUCED BY THE ASSESSEE . A.O. SHALL GIVE REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE AND SHALL DO THE NEEDFUL TO PROVIDE REFUND , IF ANY, TO THE ASSESSEE AS PER LAW. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (LP SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 03 RD APRIL, 2018 VBP/- COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT G BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.