Sri. Munoth D Gheverchand, Hubli V. ITO, Hubli

MA 37/BANG/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9656 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 15-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE
• Section: 143(3)

Judgement Text

PAGE 1 OF 6 M.P. NO.37/BANG/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI JASON P BOAZ, ACCOUNTANT MEMBER M.P.NO.37/BANG/2012 (IN ITA NO.240/BANG/2010) (ASST. YEAR 2006-07) SRI MUNOTH D GHEVARCHAND, BELGAUM GALLI, HUBLI. - APPELLANT VS THE INCOME-TAX OFFICER, WARD-3(2), HUBLI. RESPONDENT DATE OF HEARING : 14/12/2012 DATE OF PRONOUNCEMENT : 14/12/2012 APPELLANT BY : SHRI BALRAM R RAO, ADVOCATE RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JCIT O R D E R PER GEORGE GEORGE K : THIS MISCELLANEOUS PETITION AT THE INSTANCE OF T HE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE INCOM E TAX APPELLATE TRIBUNAL IN ITA NO.240/BANG/2010 DATED 02/07/2010. THE RELEVANT ASSESSMENT YEAR IS 2006-07. PAGE 2 OF 6 M.P. NO.37/BANG/2012 2 2. THE BRIEF FACTS IN RELATION TO THE CASE ARE AS FOLLOWS:- THE ASSESSEE IS AN INDIVIDUAL. HE IS DOING THE B USINESS IN TEXTILES ON WHOLESALE BASIS. HE FILED THE RETUR N OF INCOME ON 12.10.2006 DECLARING A TOTAL INCOME OF RS.1,32,540/ -. THE ASSESSMENT U/S 143(3) WAS COMPLETED ON 28.8.2008 FI XING AN INCOME OF RS.3,21,175/-. IN THE ASSESSMENT SO COMPLETED, THE ASSESSING OFFICER DISALLOWED THE INTEREST PAYMENT AGGREGATING TO RS.1,18,046/- BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, FOR THE REASON THAT DECLARATION UNDER FORM NO. 15G WAS NOT FILED BEFORE THE CIT ON TIME. 3. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE CIT(A) HOWEVER DISMISSED THE APPEAL OF THE ASSESSEE, 4. THE TRIBUNAL CONFIRMED THE VIEW TAKEN BY THE CI T(A). THE RELEVANT FINDING OF THE TRIBUNAL READS AS FOLLO WS:- 9. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. IN THE INSTANT CASE, THOUGH THE ASSESSEE IS AN INDIVIDUAL, HE IS LIABLE FOR DEDUCTION OF TAX AT SOURCE IN VIEW OF TH E PROVISO TO SECTION 194A(1) OF THE ACT. THE RELEVANT PROVISIONS CONCERNING THE ISSUE ARE LISTED BELOW:- (I) S.194A SAYS ANY PERSON NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY WHO IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY INCOME BY WAY OF INTEREST OTHER THAN INCOME (BY WAY OF INTEREST ON SECURITIES) SHALL, AT THE PAGE 3 OF 6 M.P. NO.37/BANG/2012 3 TIME OF CREDIT SUCH INCOME TO THE ACCOUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT INCOME-TAX THEREON AT THE RATES IN FORCE. (II) RULE 29C SAYS (1) A DECLARATION UNDER SUB-SECTION (1) BY AN INDIVIDUAL OR UNDER SUB-SECTION (1A) OF SECTION 197A BY A PERSON (NOT BEING A COMPANY OR FIRM) SHALL BE IN FORM NO.15G AND SHALL BE VERIFIED IN THE MANNER INDICATED THEREIN. (2) THE DECLARATION REFERRED TO IN SUB- RULE (1) OR SUB-RULE (1A) SHALL BE FURNISHED IN DUPLICATE TO THE PERSON RESPONSIBLE FOR PAYING THE INTEREST ON SECURITIES OR DIVIDED OR INTEREST OTHER THAN INTEREST ON SECURITIES OR INCOME IN RESPECT OF UNITS OR, AS THE CASE MAY BE, ANY AMOUNT REFERRED TO IN CLAUSE (A) OF SUB-SECTION (2) OF SECTION 80CCA. (3) THE PERSON REFERRED TO IN SUB-RULE (2) SHALL DELIVER OR CAUSE TO BE DELIVERED TO THE CHIEF COMMISSIONER OR COMMISSIONER, ONE COPY OF THE DECLARATION REFERRED TO IN SUB-RULE (1) OR SUB-RULE (1A) ON OR BEFORE THE SEVENTH DAY OF THE MONTH NEXT FOLLOWING THE MONTH IN WHICH THE DECLARATION IS FURNISHED TO HIM. PAGE 4 OF 6 M.P. NO.37/BANG/2012 4 9.1 IT IS AN UNDISPUTED FACT THAT FORM NO.15G HAS NOT BEEN FURNISHED BY THE ASSESSEE BEFORE THE CONCERNED CIT DURING THE YEAR UNDER DISPUTE ON OR BEFORE 7.4.2006. THE ASSESSEE HAD ASSERTED THAT HE IS IN RECEIPT OF FORM NO.15G, WHEN INTEREST WAS CREDITED/PAID IN THE ACCOUNTS OF THE PAYEE. THE PERSON, WHO ASSERTS A PARTICULAR FACT, HAS TO PROVE THE SAME. IN THE INSTANT CASE, ASSESSEE HAS NOT PROVED THAT HE WAS IN RECEIPT OF FORM NO.15G FROM THE PAYEES WHEN INTEREST WAS CREDITED/PAID. 9.2. RULE 29C MANDATES THAT FORM NO.15G IS TO BE FURNISHED BEFORE THE CIT ON OR BEFORE THE 7 TH DAY OF THE MONTH NEXT FOLLOWING THE MONTH IN WHICH DECLARATION IS FURNISHED. THE TRIBUNAL IN THE CASE OF J G KHATAWAR & CO. CITED SUPRA, ON IDENTICAL FACTS, HAD HELD AGAINST THE ASSESSEE. TH E FACTS OF THAT CASE AND THE CONCLUSION DRAWN BY THE TRIBUNAL ARE ELABORATED IN THE IMPUGNED CIT(A)S ORDER AND HENCE, THE SAME IS NOT REITERATED HERE. THE ORDER OF THE TRIBUNAL RELIED ON BY THE ASSESSEE IS DISTINGUISHABLE AND DOES NOT HAVE APPLICATION TO THE FACTS OF THIS CASE. IN THE CASE OF M/S SHRI VENKATESHWARA (SUPRA), IT WAS A CASE ADMITTEDLY CONCERNING A SENIOR CITIZEN WHO WAS NOT LIABLE TO TAX. UNDER THOSE CIRCUMSTANCES, THE TRIBUNAL HELD THAT THOUGH FORM NO.15H IS FILED BELATEDLY, THE PAYER IS NOT LIABLE FOR TAX DEDUCTION AT SOURCE, SINCE RECIPIENT OF INTEREST INCOME (SENIOR CITIZEN) IS NOT LIABLE FOR TAX. 9.3 FOR THE AFORESAID REASONS, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). 4.1 THE ASSESSEE FILED A MISCELLANEOUS APPLICATION AGAINST THE TRIBUNALS ORDER DATED 2 ND JULY, 2010. ACCORDING TO THE PAGE 5 OF 6 M.P. NO.37/BANG/2012 5 ASSESSEE, THE BASIS OF FILING THE MISCELLANEOUS APP LICATION IS AS FOLLOWS:- 8. WHEREAS, IN VALIBHAI MANKHAD V DCIT IN ITA NO.2228/AHD/2009, AFTER CONSIDERING THE PROVISIONS OF SEC.40(A)(IA) OF THE IT ACT, 1961, TH E HONBLE ITAT AHMEDABAD (A BENCH) CONFIRMED THE VIEW TAKEN BY THE HONBLE TRIBUNAL AHMEDABAD (D BENCH) IN ITA NO.1717/AHD/2010 IN ACIT V SHREE PRAMUKH TRANSPORT CO., CAME TO A CONCLUSION (AT PARA 8 AND 10 OF THE ORDER OF SAID VALIBHAI) THAT ONCE DECLARATION IS OBTAINED IN TIME BUT DELIVERED LATE TO COMMISSIONER THAN, THERE IS NO TDS OBLIGATION HENCE NO 40*(A)(IA) DISALLOWANCE. 4.2 THEREFORE, IT WAS PRAYED THAT ONCE DECLARATION UNDER SECTION 197(1A) IS OBTAINED IN TIME BUT DELIVERED L ATE TO COMMISSIONER THUS, THERE IS NO TDS OBLIGATION AND H ENCE, NO DISALLOWANCE IS CALLED FOR UNDER SECTION 40(A)(IA) OF THE ACT. 5. WE HAVE HEARD THE LEARNED AR AND THE LEARNED DR PRESENT. THE CASE LAWS ON WHICH THE ASSESSEE HAS P LACED RELIANCE NAMELY, VALIBHAI MANKHAD V DCIT IN ITA NO.2228/AHD/2 009 AND ACIT V SHREE PRAMUKH TRANSPORT CO. IN ITA NO.1717/A HD/2010 NOW WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL W HEN ITA NO.240/BANG/2010 WAS TAKEN UP FOR HEARING. HENCE, THERE IS NO MISTAKE APPARENT ON RECORD WARRANTING RECTIFICATION UNDER SECTION 254(2) OF THE ACT. IT IS ORDERED ACCORDINGLY. PAGE 6 OF 6 M.P. NO.37/BANG/2012 6 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DAY OF DECEMBER, 2012 SD/- SD/- (JASON P BOAZ) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE C IT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF MSP/ BY ORDER SENIOR PRIVATE SECRETARY, ITAT, BANGALORE.