Smt.Anuradha Sripathy, Bangalore V. Commissioner of Income Tax, Appeals-7, Bangalore

MA 101/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2256 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: T RAVINDRA
• Keywords: TDS
• Section: 143(3); 40(a)(ia); 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.P. NO. 101/BANG/2018 (IN ITA NO. 1 748 / BANG/201 6 ) ASSESSMENT YEAR : 20 09 - 10 SMT. ANURADHA SRIPATHY, 288, 10 D MAIN, JAYANAGAR, 5 TH BLOCK, BANGALORE. PAN: ASZPS8382G VS. THE COMMISSIONER OF INCOME-TAX (APPEALS) -7, BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI T. RAVINDRA, CA REVENUE BY : SHRI PRADEEP KUMAR, CIT (DR) DATE OF HEARING : 14 . 0 6 .201 9 DATE OF PRONOUNCEMENT : 21 . 0 6 .201 9 O R D E R PER SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER; THIS M.P. IS FILED BY THE ASSESSEE. IT IS CONTENDED IN THE M.P. THAT THERE ARE CERTAIN APPARENT MISTAKES IN THE IMPUGNED TRIBUNAL ORDER DATED 17.01.2018. AS PER THE PRESENT M.P. FILED BY THE ASSESSEE, THE FIRST ALLEGED MISTAKE IS AS PER PARA NO. 1 OF THE M.P. WHICH IS REPRODUCED HEREINBELOW. 1. THE ORDER OF THE HONOURABLE INCOME TAX APPELLATE TRIBUNAL IN ITA 1748/BANG/2016 DT 17.01.2018 IS BAD IN LAW FOR THE REASON : (I) IN PARA 6 - LINE 7 OF THE ORDER IT IS STATED -' THE ONLY OBJECTION RAISED BY THE ASSESSEE IS THAT SOME PAYMENTS ARE BELOW THE PRESCRIBED LIMIT OF RS.10,000 TO ATTRACT TDS PROVISIONS.' THIS IS FACTUALLY INCORRECT. THE FOLLOWING GROUND WAS ALSO RAISED - IN PARA 2.5 OF THE GROUNDS OF APPEAL IT IS STATED THAT - 'WE WISH TO SUBMIT THAT IN CASES WHERE THE PAYEE HAS PAID TAX ON THE RECEIPTS .FROM LOTUS COMMUNICATION THE ASSESSING OFFICER SHOULD NOT DISALLOW THE EXPENDITURE, WE REFER TO CIRCULAR NO.275/201/95-IT(B) ,DATED 29.01.1997 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WHICH DECLARES M.P. NO. 101/BANG/2018 (IN ITA NO. 1748/BANG/2016) PAGE 2 OF 6 THAT NO DEMAND VISUALIZED UNDER SECTION 201(1) OF THE INCOME TAX ACT SHOULD BE ENFORCED AFTER THE TAX DEDUCTOR HAS SATISFIED THE OFFICER- IN- CHARGE OF TDS, THAT THE TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE - ASSESSEE. WE HAVE BROUGHT THE MATTER TO THE ATTENTION OF THE LEARNED A.O. BUT HE CHOSE NOT TO TAKE COGNIZANCE OF THE SAME WHILE PASSING THE ORDER.ONCE.IT IS PROVED THAT THE TAX HAS BEEN PAID BY THE DEDUCTEE, THEN THERE IS NO LOSS TO REVENUE. THEREFORE, THE ENFORCEMENT OF THE TDS IN THE HANDS OF DEDUCTOR APPEARS TO BE NON LOGICAL. WE ARE REFERRING TO THE PROVISO TO SECTION 201(1A) WHERE IF A CERTIFICATE CERTIFIED BY A CHARTERED ACCOUNTANT IN FORM 26A IS FURNISHED FROM THE INDIVIDUAL PAYEES ATTESTING THAT THE AMOUNT HAS BEEN INCLUDED IN THEIR INCOME AND THAT THE TAX HAS BEEN PAID.' THIS GROUND WAS FURTHER AMPLIFIED IN A WRITTEN SUBMISSION MADE ON 25.10.2017 WITH SUPPORTING CASE LAW (COPY ENCLOSED). THIS GROUND HAS NOT BEEN ADJUDICATED BY THE HONOURABLE TRIBUNAL. 2. IN COURSE OF HEARING OF THE M.P., IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT GROUND NO. 2.5 RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL WAS NOT DECIDED BY THE TRIBUNAL AND HENCE, IT SHOULD BE ACCEPTED THAT THERE IS AN APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. AT THIS JUNCTURE, THE BENCH POINTED OUT THAT GROUND NO. 2.5 REPRODUCED BY THE ASSESSEE IN PARA NO. 1 OF THE M.P. IS NOT COMPLETE AND HENCE, WE REPRODUCE GROUND NO. 2.5 FROM THE APPEAL MEMO. THE SAME IS AS UNDER. 2.5 WE WISH TO SUBMIT THAT IN CASES WHERE THE PAYEE HAS PAID TAX ON THE RECEIPTS FROM LOTUS COMMUNICATION THE ASSESSING OFFICER SHOULD NOT DISALLOW THE EXPENDITURE, WE REFER TO CIRCULAR NO. 275/201/95-IT(B), DATED 29.01.1997 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES WHICH DECLARES THAT NO DEMAND VISUALIZED UNDER SECTION 201(1) OF THE INCOME TAX ACT SHOULD BE ENFORCED AFTER THE TAX DEDUCTOR HAS SATISFIED THE OFFICER-IN-CHARGE OF TDS, THAT THE TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE-ASSESSEE. WE HAVE BROUGHT THE MATTER TO THE ATTENTION OF.THE LEARNED A.O. BUT HE CHOSE NOT TO TAKE COGNIZANCE OF THE SAME WHILE PASSING THE ORDER. ONCE, IT IS PROVED THAT TAX HAS BEEN PAID BY THE DEDUCTEE, THEN THERE IS NO LOSS TO REVENUE. THEREFORE, THE ENFORCEMENT OF TDS IN THE HANDS OF DEDUCTOR APPEARS TO BE NON LOGICAL. WE ARE REFERRING TO THE PROVISO TO SECTION 201(1A) WHERE IF A CERTIFICATE CERTIFIED BY A CHARTERED ACCOUNTANT IN FORM 26A IS FURNISHED FROM THE INDIVIDUAL PAYEES ATTESTING THAT THE AMOUNT HAS BEEN INCLUDED IN THEIR INCOME AND THAT THE TAX HAS BEEN PAID. 01 WE WILL PRODUCE THE CERTIFICATES AT THE TIME OF HEARING IN SUPPORT OF OUR CONTENTION. IN CONCLUSION OUR ARGUMENTS ARE THAT THE TDS IS DEDUCTIBLE ON THE BALANCE OF CREDITORS TO WHICH TDS IS APPLICABLE AS ON THE YEAR END AND OUT OF THOSE CREDITORS ( PAYEES) WHO HAVE PAID THE TAX AND FROM WHICH M.P. NO. 101/BANG/2018 (IN ITA NO. 1748/BANG/2016) PAGE 3 OF 6 A CERTIFICATE U/S 201(1A) IN THE REQUIRED FORMAT ( FORM 26 A) IS PRODUCED MAY BE ELIMINATED AND TDS PROVISION U/S 40(A)(IA) MAY BE APPLIED ONLY TO THE REMAINING CREDITORS. A COMPLETE AND DETAILED STATEMENT IS ATTACHED. 3. THE BENCH POINTED OUT THAT IN THE M.P., THE ASSESSEE HAS NOT REPRODUCED THE COMPLETE GROUND NO. 2.5 AS HAS BEEN RAISED BY THE ASSESSEE IN THE APPEAL MEMO FILED BEFORE THE TRIBUNAL. THE BENCH POINTED OUT THAT IT IS STATED BY THE ASSESSEE IN GROUND NO. 2.5 THAT ASSESSEE WILL PRODUCE THE CERTIFICATES AT THE TIME OF HEARING IN SUPPORT OF ASSESSEES CONTENTION. THE BENCH RAISED A QUERY AS TO WHETHER THE CERTIFICATES WERE FILED BEFORE THE TRIBUNAL IN COURSE OF HEARING AND IN REPLY, THE LD. AR OF ASSESSEE COULD NOT SHOW THAT ANY SUCH CERTIFICATE WAS FILED BEFORE THE TRIBUNAL IN COURSE OF HEARING OF THE APPEAL. THE BENCH ALSO POINTED OUT THAT IN THE SECOND SUB PARA OF GROUND NO. 2.5 RAISED BY ASSESSEE BEFORE THE TRIBUNAL AS REPRODUCED ABOVE, IT IS STATED THAT A COMPLETE AND DETAILED STATEMENT IS ATTACHED BUT THERE IS NO SUCH STATEMENT ATTACHED WITH THE APPEAL MEMO. IN REPLY, THE LD. AR OF ASSESSEE COULD NOT SHOW THAT ANY SUCH DETAILED STATEMENT IS ENCLOSED IN THE GROUND RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL. THE LD. DR OF REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER ON THIS ASPECT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER THE CONTENTION RAISED BY THE ASSESSEE IN PARA 1 OF THE M.P., THIS IS THE SUBMISSION THAT GROUND NO. 2.5 RAISED BY ASSESSEE BEFORE THE TRIBUNAL HAS NOT BEEN DECIDED BY THE TRIBUNAL IN THE IMPUGNED TRIBUNAL ORDER. IN THIS REGARD, WE FIND THAT AS PER GROUND NO. 2.5 RAISED BY ASSESSEE BEFORE THE TRIBUNAL AS PER APPEAL MEMO AS REPRODUCED ABOVE, IT WAS SUBMITTED THAT ASSESSEE WILL PRODUCE CERTIFICATES AT THE TIME OF HEARING IN SUPPORT OF ASSESSEES CONTENTION THAT TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE-ASSESSEE AND THEREFORE, IN VIEW OF CBDT CIRCULAR NO. 275/201/95-IT(B), DATED 29.01.1997, WHEREIN IT WAS STATED BY THE CBDT THAT NO DEMAND VISUALIZED U/S. 201(1) OF THE IT ACT SHOULD BE ENFORCED AFTER THE TAX DEDUCTOR HAS SATISFIED THE OFFICER-IN-CHARGE OF TDS, THAT THE TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE-ASSESSEE. HENCE IT IS M.P. NO. 101/BANG/2018 (IN ITA NO. 1748/BANG/2016) PAGE 4 OF 6 SEEN THAT TO GET THE BENEFIT OF PAYMENT OF TAXES BY DEDUCTEE, THE ASSESSEE DEDUCTOR HAS TO ESTABLISH BY BRINGING EVIDENCE ON RECORD THAT THE DEDUCTEE HAD MADE PAYMENT OF TAX AFTER INCLUDING THE AMOUNT IN QUESTION ON WHICH NO TDS WAS DEDUCTED BY THE DEDUCTOR ASSESSEE. IT IS SEEN THAT IN THE PRESENT CASE, NO SUCH EVIDENCE HAS BEEN BROUGHT ON RECORD BY ASSESSEE BEFORE THE TRIBUNAL IN COURSE OF APPELLATE PROCEEDINGS AND THEREFORE, THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER AS PER WHICH THE ISSUE IN DISPUTE REGARDING DISALLOWANCE MADE BY THE AO U/S. 40(A)(IA) WAS DECIDED AGAINST THE ASSESSEE. HENCE ON THIS ASPECT, WE FIND NO MERIT IN THE M.P. FILED BY THE ASSESSEE BECAUSE NO EVIDENCE IN THIS REGARD WERE BROUGHT ON RECORD BY THE ASSESSEE BEFORE THE TRIBUNAL THAT THE INCOME IN QUESTION WAS CONSIDERED BY THE DEDUCTEE AND TAX HAS BEEN PAID BY THE DEDUCTEE IN SPITE OF PROMISING SO IN THE GROUND NO. 2.5 RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL AS REPRODUCED ABOVE. 5. REGARDING THE ISSUE RAISED BY THE ASSESSEE IN PARA 2 OF THE M.P., NO ARGUMENT WAS MADE BY LD. AR OF ASSESSEE AND HENCE, WE INFER THAT THIS OBJECTION RAISED IN PARA 2 OF THE M.P. IS NOT PRESSED BY LD. AR OF ASSESSEE AND HENCE, THE SAME IS REJECTED AS NOT PRESSED. 6. THE NEXT ALLEGED APPARENT MISTAKE IS AS PER PARA (III) OF THE M.P. AND FOR READY REFERENCE, THIS PARA IS REPRODUCED HEREINBELOW. (III) IN PARAGRAPH 3 OF THE ADDITIONAL WRITTEN SUBMISSION FILED ON 02.11.2017 (PART OF PAPER BOOK - PAGE NO 1 & 2) IT WAS STATED - 'THE LEARNED AO IN FRESH ASSESSMENT PROCEEDING U/S 143(3) OF THE ACT DID NOT SCRUTINISE THE DETAILS FURNISHED BY THE APPELLANT AS DIRECTED BY THE PR. CCIT AND THE EXPLANATIONS OFFERED AS TO THE NATURE OF THE PAYMENTS; SIMPLY ADOPTED WHAT WAS STATED IN THE AUDIT REPORT FURNISHED IN FORM 3CD....' (COPY ENCLOSED). THE ITAT HAS NOT ADJUDICATED ON THIS ISSUE ALTHOUGH FULL PARTICULARS WERE FURNISHED IN THE PAPER BOOK - PAGES 3 TO 52. 7. IN COURSE OF HEARING, THE BENCH WANTED TO SEE AS TO WHETHER ANY ADDITIONAL WRITTEN SUBMISSION WAS FILED BEFORE THE TRIBUNAL ON 02.11.2017 AS STATED BY THE ASSESSEE IN PARA NO. (III) OF THE M.P. IN THIS REGARD, WE HAVE GONE THROUGH THE COMPLETE APPEAL FOLDER AND WE FIND THAT ON PAGES 1 AND 2 OF THE PAPER M.P. NO. 101/BANG/2018 (IN ITA NO. 1748/BANG/2016) PAGE 5 OF 6 BOOK, THERE IS ADDITIONAL WRITTEN SUBMISSION AVAILABLE ON RECORD BUT THERE IS NO DATE GIVEN IN THE SAID WRITTEN SUBMISSIONS BUT IN THE INDEX OF THIS PAPER BOOK, DATE IS GIVEN AS 02.11.2017 AND THEREFORE, WE ACCEPT THAT WRITTEN SUBMISSIONS DATED 02.11.2017 WERE FILED BEFORE THE TRIBUNAL. NOW WE EXAMINE THE CONTENTS OF THE SAME AND ALSO EXAMINE AS TO THE SAME WERE EXAMINED AND CONSIDERED BY THE TRIBUNAL OR NOT AND FOR THIS PAGES 3 TO 52 OF THIS PAPER BOOK ARE RELEVANT. WE FIND THAT AS PER THE ASSESSEE, ON PAGES 3 TO 52 OF PAPER BOOK, FULL PARTICULARS WERE FURNISHED AND THE TRIBUNAL HAS NOT ADJUDICATED THE ISSUE AFTER CONSIDERING THESE PAPERS AVAILABLE IN THE PAPER BOOK. IN THIS REGARD, WE WOULD LIKE TO OBSERVE THAT AS PER SUB-RULE 6 OF RULE 18 OF APPELLATE TRIBUNAL RULES, 1963, DOCUMENTS THAT ARE REFERRED TO AND RELIED UPON BY THE CONCERNED PARTY DURING THE COURSE OF ARGUMENTS SHALL ALONE BE TREATED AS PART OF RECORD OF THE TRIBUNAL. IN PARA NO. (III) OF THE PRESENT M.P. AS REPRODUCED ABOVE, THIS IS NOT THE CONTENTION OF THE ASSESSEE THAT THESE PAGES 3 TO 52 WERE REFERRED TO BY THE LD. AR OF ASSESSEE IN THE COURSE OF HEARING OF THE APPEAL AND THEREFORE, EVEN IF THESE PAGES WERE NOT CONSIDERED BY THE TRIBUNAL WHILE DECIDING THE PRESENT APPEAL, IT CANNOT BE SAID THAT THESE DOCUMENTS AVAILABLE ON PAGES 3 TO 52 OF PAPER BOOK ARE PART OF RECORD OF THE TRIBUNAL WHICH SHOULD HAVE BEEN CONSIDERED BY THE TRIBUNAL FOR DECIDING THE APPEAL OF THE ASSESSEE. MOREOVER, WE FIND THAT PAGE NO. 3 OF THE PAPER BOOK IS THE COPY OF LETTER DATED 23.07.2014 SUBMITTED BY THE ASSESSEE TO THE AO IN WHICH IT IS STATED THAT THE ASSESSEE IS SUBMITTING BEFORE THE AO THE DETAILS OF PAYMENTS MADE TO CONTRACTORS AND SUBCONTRACTORS AND COPY OF NOTICE AND THIS PAGE NO. 3 OF PAPER BOOK IS NOT AT ALL RELEVANT FOR DECIDING THE ISSUE BY THE TRIBUNAL. ON PAGES 4 AND 5 OF THE PAPER BOOK, SOME PARTIES NAMES AND SOME AMOUNT IS APPEARING TOTAL OF WHICH COMES TO RS. 1,01,54,617.35 AND THERE IS NO NARRATION GIVEN ABOUT THESE DETAILS AS TO THESE DETAILS ARE REGARDING WHAT AND THEREFORE, THESE PAGES ARE ALSO NOT RELEVANT FOR THE PURPOSE OF DECIDING THE PRESENT APPEAL BY THE TRIBUNAL. ON PAGES 6 TO 16 ARE DATE WISE DETAILS ALONG WITH REMARKS AND THE AMOUNT, TOTAL OF WHICH IS RS. 1,01,54,617/-. BUT UNLESS IT IS EXPLAINED THAT HOW THESE DETAILS ARE RELEVANT FOR DECIDING THE ISSUE BY THE TRIBUNAL, THE SAME IS NOT RELEVANT. M.P. NO. 101/BANG/2018 (IN ITA NO. 1748/BANG/2016) PAGE 6 OF 6 ON PAGES 17 TO 52 OF PAPER BOOK ARE SOME INVOICES ISSUED BY VARIOUS PARTIES ON VARIOUS DATES. BUT THESE INVOICES ARE ALSO NOT RELEVANT TO DECIDE REGARDING DEDUCTIBILITY OF TDS AS THESE INVOICES ARE REGARDING STALL CHARGES AT KANTEERVA INDORE STADIUM, ADVERTISEMENT CHARGES ETC. THIS IS NOT THE CASE OF THE ASSESSEE THAT ON THESE CHARGES, THE TDS IS NOT DEDUCTIBLE. WE FAIL TO UNDERSTAND AS TO WHAT IS THE RELEVANCE OF THESE PAPER BOOK AND PARTICULARLY WHEN THIS IS NOT CLAIM OF THE ASSESSEE THAT THESE PAGES WERE REFERRED TO IN COURSE OF HEARING OF THE APPEAL, IT CANNOT BE SAID THAT THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER ONLY BECAUSE THESE PAGES ARE NOT REFERRED TO IN THE TRIBUNAL ORDER. HENCE, WE HOLD THAT THERE IS NO MERIT IN THIS OBJECTION ALSO. 8. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST JUNE, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.