The DGM, BSNL. NTR, Jalandhar V. The Income Tax Officer, Jalandhar

MA 42/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3975 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 28-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAVISH SUD
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NOS. 41 & 42(ASR)/2015 (ARISING OUT OF I.T.A. NOS. 561 & 562(ASR)/2013) ASSESSMENT YEARS: 2009-2010 & 2010-11 PAN :AABCB5576G THE DGM, BSNL, NTR VS. INCOME TAX OFFICER, MTCE, MASTER TARA SINGH NAGAR, TDS-II, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.RAVISH SUD, ADVOCATE RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING: 11/03/2016 DATE OF PRONOUNCEMENT: 11/03/2016 ORDER PER A.D. JAIN, JM: THESE TWO MISC. APPLICATIONS MOVED BY THE ASSESSE E ARISE OUT OF THE CONSOLIDATED ORDER OF THE TRIBUNAL, DATED 12.02 .2015, PASSED IN ITA NOS. 561 & 562(ASR)/2013, FOR THE ASSESSMENT YEARS 2009-10 & 2010- 11, RESPECTIVELY. 2. IN MA 41(ASR)/2015, THE ASSESSEE HAS STATED THA T WHILE DISPOSING OF THE APPEAL IN ITA NO.561(ASR)/2013, THE TRIBUNAL HAS INADVERTENTLY OMITTED TO ADJUDICATE GROUND NOS. 5 & 6, WHICH READ S AS UNDER: 5. THAT THE CIT(A) MISCONCEIVING THE FACTS OF THE C ASE READ IN LIGHT OF THE SETTLED POSITION OF LAW HAD THEREIN ERRED IN HOLDING THE ASSESSEE AS BEING IN DEFAULT U/SS.201 (1) & MA NOS. 41 & 42(ASR)/20115 2 201(1A) OF THE ACT AS REGARDS THE PAYMENT OF RS.3,5 8,387/- MADE TO M/S. MOHAN DEVI CANCER HOSPITAL. 6. THAT THE CIT(A) MISCONCEIVING THE FACTS OF THE C ASE READ IN LIGHT OF THE SETTLED POSITION OF LAW HAD THEREIN ER RED IN HOLDING THE ASSESSEE AS BEING IN DEFAULT U/SS. 201(1) & 2 01(1A) OF THE ACT AS REGARDS THE IMPUGNED PAYMENT TOWARDS COMMISSION MADE TO M.S.T.C. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS REGARDS GROUND NO.5, THE TRIBUNAL, DURING THE COURSE OF HEARING O F THE APPEAL, HAD DULY CONSIDERED THE AFFIDAVITS OF THE ASSESSEE AS WELL A S THAT OF THE EMPLOYEE, SH. VIJYA KUMAR PABBY, WHICH WERE FILED UNDER RULE 10 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. HE FURTHER SU BMITTED THAT THE ATTENTION OF THE BENCH WAS DRAWN TO PAGE 6 & 9 OF THE SYNOPSIS DATED 06.06.2014 FILED AS ON 30.07.2014 RELATING TO THIS GROUND, WHICH WERE ALSO DULY CONSIDERED BY THE BENCH. DESPITE THIS, TH E GROUND IN QUESTION HAS REMAINED UNDECIDED. 4. AS REGARDS, GROUND NO.6, THE LD. COUNSEL PLEADED THAT THE ATTENTION OF THE TRIBUNAL WAS DRAWN TO PAGES 7-8 O F THE SYNOPSIS DATED 06.06.2014 FILED ON 30.07.2014 AND HAS ALSO PLACED RELIANCE ON A JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. TRANS BHARAT AVIATION (P) LTD., 320 ITR 671 (DEL.), TO D RIVE HOME THE FACT THAT AS M.S.T.C. (I.E., THE PAYEE) WAS A PUBLIC SECTOR U NDERTAKING, THEREFORE, IN THE LIGHT OF THE JUDGMENT OF HONBLE SUPREME COU RT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES P. LTD. VS. CIT 293 ITR 226 (SC), IT MA NOS. 41 & 42(ASR)/20115 3 COULD BE INESCAPABLY CONCLUDED THAT THE PAYEE, I.E. , M.S.T.C. MUST HAVE PAID THE TAXES ON THE AMOUNTS RECEIVED FROM THE ASS ESSEE, PURSUANT WHERETO, THE SAID TAXES COULD NOT BE RECOVERED AGAI N FROM THE ASSESSEE. HE FURTHER SUBMITTED THAT THOUGH THE TRIBUNAL HAS TAKEN COGNIZANCE OF THESE FACTS IN ITS ORDER AT PAGE 8 - PARA 9, HOWEVE R, THIS GROUND HAS REMAINED UN-ADJUDICATED. PARA 9 OF THE ORDER OF TH E TRIBUNAL IS AS FOLLOWS: 9. THE BRIEF FACTS IN ALL THE YEARS I.E. ASSESSM ENT YEARS 2007-08 TO 2010-11 ARE THAT A TDS INSPECTION WAS CARRIED OU T AT THE PREMISES OF ASSESSEE ON 05.01.2010 AND IT WAS FOUND THAT THE PERSON RESPONSIBLE HAD NOT DEDUCTED ANY TAX AT SOU RCE ON PAYMENT TO VARIOUS HOSPITALS ON ACCOUNT OF MEDICAL SERVICE S I.E. THE CASH LESS MEDICAL SERVICES PROVIDED TO ITS EMPLOYEES. NO EXP LANATION FOR NON- DEDUCTION OF TAXES WAS FILED BEFORE THE AO. THE AO IN RESPECT OF ASSESSMENT YEARS 2007-08 TO 2010-11 HAS TREATED THE PERSON RESPONSIBLE AS ASSESSEE IN DEFAULT IN RESPECT OF T AX NOT DEDUCTED AND INTEREST THEREON UNDER SECTION 201 AND 201(1A) OF THE ACT RESPECTIVELY. IN THE ASSESSMENT YEAR 2009-10 APART FROM NON- DEDUCTION OF TAX ON PAYMENTS MADE TO HOSPITALS, IT WAS ALSO NOTICED THAT ON COMMISSION PAYMENT TO M/S. M.S.T.C. FOR MAK ING SALE OF SCRAP AND ALSO ON PERQUISITES OF CERTAIN EMPLOYEES IN THE FORM OF PROVIDING RENT FREE ACCOMMODATION, NO TDS WAS MADE AND THE ASSESSEE BEING PERSON RESPONSIBLE WAS TREATED TO BE ASSESSEE IN DEFAULT UNDER SECTION 201/201(1A) OF I.T. ACT. 5. AS REGARDS MA NO.42(ASR)/2015, THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION TO GROUND NO.4 RAISED BY THE ASSESSEE IN ITA NO.562(ASR)/2013, WHICH HAS ALSO NOT BEEN ADJUD ICATED BY THE TRIBUNAL VIDE ITS ORDER DATED 12.02.2015. THIS GROU ND IS SIMILAR TO GROUND NO.5 AS RAISED IN ITA NO.561(ASR)/2013. GROU ND NO.4 IS AS FOLLOWS: MA NOS. 41 & 42(ASR)/20115 4 4. THAT THE CIT(A) MISCONCEIVING THE FACTS OF THE CASE READ IN LIGHT OF THE SETTLED POSITION OF LAW HAD TH EREIN ERRED IN HOLDING THE ASSESSEE AS BEING IN DEFAULT U/SS. 2 01(1) & 201(1A) AS REGARDS THE PAYMENT OF RS.1,91,627/- MAD E TO M/S. MOHAN DAI CANCER HOSPITAL. 6. IN VIEW OF THE AFORESAID FACTS, THE LD. COUNSEL FOR THE ASSESSEE PLEADED THAT THE ORDER OF THE TRIBUNAL DATED 12.02. 2015 MAY BE RECALLED TO DECIDE GROUND NOS. 5 & 6 RAISED IN ITA NO.561(A SR)/2013 AND GROUND NO.4 RAISED IN ITA NO.562(ASR)/2013 BY THE A SSESSEE, WHICH HAVE REMAINED UNDECIDED INADVERTENTLY BY THE TRIBU NAL, DESPITE THE FACT THAT THE SUBMISSIONS REGARDING THE ISSUES CONTAINE D THEREIN WERE DULY RAISED, BOTH BY WAY OF WRITTEN SUBMISSIONS FILED W ITH THE TRIBUNAL, AS WELL AS IN THE COURSE OF THE PLEADINGS DURING THE C OURSE OF HEARING OF THE APPEAL, AND THE MISTAKE IS APPARENT FROM RECORD. 7. THE LD. DR, DID NOT OPPOSE THE REQUEST OF THE AS SESSEES COUNSEL. 8. WE HAVE HEARD BOTH THE PARTIES AND HAVE THOROUG HLY GONE THROUGH THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISC ELLANEOUS APPLICATIONS AND HAVE ALSO PERUSED THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 12.02.2015. WE FIND THAT IN FACT, GROUND NOS. 5 & 6 IN ITA NO.561(ASR)/2013 AND GROUND NO.4 IN ITA NO.562(ASR) /2013 HAVE NOT BEEN DECIDED BY THE TRIBUNAL AND THUS, IT IS A MIST AKE APPARENT FROM RECORD, WHICH REQUIRES TO BE RECTIFIED UNDER SECTIO N 254(2) OF THE ACT. WE ARE OF THE VIEW THAT THE ASSESSEE HAS EXPLAINED SU FFICIENT CAUSE FOR RECALL OF THE ORDER OF THE TRIBUNAL DATED 12.02.201 5 WITH REGARD TO THE ABOVE MENTIONED GROUNDS, WHICH REMAINED INADVERTENT LY OMITTED FOR MA NOS. 41 & 42(ASR)/20115 5 ADJUDICATION. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL THE ORDER THE TRIBUNAL DATED 12.02.2015 TO THE EXTENT TO DEC IDE GROUND NOS. 5 & 6 IN ITA NO.561(ASR)/2013 AND GROUND NO.4 IN ITA NO.5 62(ASR)/2013 AND FIX THE MAIN APPEALS FOR HEARING ON 02.05.2016. NO SEPARATE NOTICE BE ISSUED TO THE PARTIES, AS THE ORDER WAS PRONOUNCED IN THE OPEN COURT. 9. IN THE RESULT, BOTH THE MISC. APPLICATIONS ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/03/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15/03/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: THE DGM, BSNL, NTR, JALANDHAR 2. THE ITO TDS-II, JALANDHAR. 3. THE CIT(A), JLR 4. THE CIT, JLR 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.