ITO, Bangalore V. Smt. Shiromi Banerjiee, Bangalore

MA 56/BANG/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8546 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DEVARAJ
• Assessee Lawyers: SUSAN THOMAS JOSE
• Keywords: Non compliance
• Section: 201(1)

Judgement Text

PAGE 1 OF 5 M.P. NO.56/BAN G/2011 1 INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B BEFORE SHRI N BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI GEORGE GEORGE K, J.M M.P.NO.56/BANG/2011 (ITA NO.1314/BANG/2010) (ASST. YEAR 2008-09) THE INCOME TAX OFFICER, WARD-2(1), BANGALORE. VS SMT. SHIROMI BANERJEE, NO.624, RANKA COURT, NO.18, CAMBRIDGE ROAD, ULSOOR, BANGALORE-9. PA NO. AKKPB8532G (APPELLANT) (RESPONDENT) DATE OF HEARING 08.06.2012 DATE OF PRONOUNCEMENT 08.06.2012 APPELLANT BY : SHRI DEVARAJ, C.A. RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JCIT O R D E R PER GEORGE GEORGE K : THIS MISCELLANEOUS PETITION PREFERRED BY THE DEPAR TMENT ARISE OUT OF TRIBUNALS ORDER IN ITA NO.1314/BANG/2010 DA TED 26 TH SEPTEMBER, 2011. 2. BRIEF FACTS OF THE CASE ARE AS FOLLOWS :- THE ASSESSEE IS AN INDIVIDUAL. SHE PURCHASED A R ESIDENTIAL APARTMENT ON 3/8/2007 FROM SHRI SYED ASLAM HASHMI, A NON-RESIDENT. THE ITO (INTERNATIONAL TAXATION), WARD-2(1), ISSUED NOT ICE TO THE ASSESSEE DRAWING ATTENTION TO THE PROVISIONS OF SECTION 195 OF THE ACT AND TO SHOW CAUSE WHY SHE HAD NOT DEDUCTED TAX AT SOURCE IN RESP ECT OF THE PAYMENT PAGE 2 OF 5 M.P. NO.56/BAN G/2011 2 MADE TO THE SELLER OF THE ABOVE SAID PROPERTY. THE ASSESSEE SUBMITTED SHE WAS NOT AWARE OF THE FACT THAT THE SELLER WAS A NON -RESIDENT AND THERE WAS NO INDICATION IN THE DOCUMENT TO THE TRANSACTION TH AT THE SELLER WAS A NON RESIDENT. IT WAS FURTHER SUBMITTED THAT THE SELLER OF THE PROPERTY HAD ALREADY DECLARED THE SALE OF THE PROPERTY IN HIS RETU RN OF INCOME AND CONSEQUENT TO THE SAME, SHE IS NOT LIABLE TO RECOVE RY OF TDS. THE ITO VIDE HIS ORDER DATED 08.02.2010 ABSOLVED THE ASSESSEE FR OM HER LIABILITY UNDER SECTION 201(1) SINCE THE NON RESIDENT SELLER HAD FI LED HIS RETURN OF INCOME DISCLOSING CAPITAL GAINS ON THE SALE OF THE PROPERT Y. THE ITO HOWEVER QUANTIFIED THE LIABILITY UNDER SECTION 201(1A) OF TH E ACT, FOR THE PERIOD FROM JULY 2007 TO JANUARY, 2010. THE INTEREST LEVIED UNDE R SECTION 201(1A) AMOUNTED TO RS.2,52,886/-. 3. AGAINST THE LEVY OF INTEREST UNDER SECTION 201(1 A) OF THE ACT, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E FIRST APPELLATE AUTHORITY. THE SUBMISSIONS MADE BEFORE THE ITO WERE REITERATED BEFORE THE FIRST APPELLATE AUTHORITY. THE CONTENTIONS RAIS ED WERE DISMISSED AND THE COMMISSIONER OF INCOME-TAX(A) CONFIRMED THE VI EW TAKEN BY THE ITO. HOWEVER, THE COMMISSIONER OF INCOME-TAX(A) MODIFIED TO A CERTAIN EXTENT THE QUANTUM OF INTEREST THAT WAS LEVIED UNDER SECTI ON 201(1A). THE INTEREST COMPUTATION WAS LIMITED FOR A PERIOD OF THIRTEEN MO NTHS FROM JULY 2007 TO JULY, 2008, ON A SUM OF RS.8,15,760/- SINCE THE TAX WAS PAID BY THE SELLER, SHRI SYED ASLAM HASHMI BY FILING HIS RETURN OF INCOME DISCLOSING THE SALE OF THE PROPERTY. PAGE 3 OF 5 M.P. NO.56/BAN G/2011 3 4. THE ASSESSEE AGGRIEVED BY THE LEVY OF INTEREST U NDER SECTION 201(1A) FOR THE PERIOD OF THIRTEEN MONTHS FROM JULY, 2007 TO JULY, 2008 PREFERRED AN APPEAL BEFORE THE TRIBUNAL IN ITA NO.1 314/BANG/2010. 5. THE TRIBUNAL VIDE ITS ORDER DATED 26/9/2011 REM ANDED THE MATTER TO THE ASSESSING OFFICER FOR FRESH CONSIDERA TION BY DIRECTING THE ASSESSING OFFICER TO FOLLOW THE RATIO OF THE ORDERS OF THE TRIBUNAL IN THE CASE OF ULTRA ENTERTAINMENT SOLUTIONS LTD. V ITO (2 007) 17 SOT 249 (MUM.) AND ITO V EMRALD CONSTRUCTION CO. (P) LTD. (116 TT J 904) (JODH.). 6. THE DEPARTMENT BEING AGGRIEVED BY THE ORDER OF T HE TRIBUNAL HAS PREFERRED THIS MISCELLANEOUS PETITION BEFORE US . 7. THE SUBSTANCE OF THE MISCELLANEOUS PETITION PRE FERRED BY THE DEPARTMENT READS AS FOLLOWS:- THE HONBLE ITAT HAS DIRECTED THE ASSESSING OFFICE R TO FOLLOW THE DECISIONS OF THE HONBLE ITAT MUMBAI BENCH AND JODHPUR BENCH AS AGAINST THE ORDER OF HON BLE ITAT BANGALORE A BENCH IN THE CASE OF ITO V INTEL T ECH PVT. LTD. IN ITA NO.71/BANG/2009. THE HONBLE ITAT HAS ALSO NOT TAKEN COGNIZANCE OF THE FACT THAT THE SAID DECISION OF THE ITAT BANGALORE B BENCH HAS BEEN UPH ELD BY THE HONBLE OF HIGH COURT OF KARNATAKA VIDE ORDER DT.12.1.2011 IN ITA NO.433/2009. THEREFORE THE FOLLOWING GROUNDS ARISE FOR THE CONSIDERATION OF TH E HONBLE ITAT : 1. THE DECISION OF HONBLE OF HIGH COURT OF KARNATAKA BEING A JURISDICTIONAL HIGH COURT IS BINDING ON ALL LOWER AUTHORITIES AND NEEDS TO BE COMPLIED WITH. PAGE 4 OF 5 M.P. NO.56/BAN G/2011 4 2. THE DECISION OF ITAT MUMBAI BENCH IN THE CASE OF ULTRA ENTERTAINMENT SOLUTIONS LTD. V ITO (2007) 17 SOT 249 (MUM.) AND JODHPUR BENCH IN ITO V EMRALD CONSTRUCTION CO. (P) LTD. (116 TTJ 904) (JODH) IS I N CONFLICT WITH THE JURISDICTIONAL HIGH COURT DECISIO N. 3. THE DIRECTION TO FOLLOW THESE DECISIONS RESULTS IN NON COMPLIANCE OF THE JURISDICTIONAL HIGH COURT DECISIO N AND THEREFORE CALLS FOR A REVISION. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS ON RECORD. THE ORDER OF THE TRIBUNAL IN THE CASE OF I TO V INTEL TECH PVT. LTD. IN ITA NO.71/BANG/2009 WAS NOT CITED IN THE COURSE OF HEARING OF THE APPEAL. HENCE, THE SAME WAS NOT INCORPORATED IN OU R ORDER DATED 26 TH SEPTEMBER, 2011. THE BANGALORE BENCH OF THE TRIBUN ALS ORDER IN THE CASE OF ITO V INTEL TECH PVT. LTD. IN ITA NO.71/BANG/200 9 HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT VIDE ITS JUDG EMENT DATED 12/1/2011 IN ITA NO.433/2009. THE ASSESSING OFFICER WHILE RECON SIDERING THE ISSUE NECESSARILY WILL HAVE TO CONSIDER THE BANGALORE BENC H TRIBUNALS ORDER IN THE CASE OF INTEL TECH PVT. LTD. (SUPRA), WHICH WAS AFF IRMED BY THE HONBLE HIGH COURT AND TAKE APPROPRIATE DECISION IN THE MATTER I N ACCORDANCE WITH LAW. IT IS ORDERED ACCORDINGLY. 9. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (N BARATHVAJA SANKAR) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER BANGALORE, DATED 08/06/2012 PAGE 5 OF 5 M.P. NO.56/BAN G/2011 5 COPY TO:- 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONC ERNED 4. THE CIT(A) CONCERNED 5. THE DR 6. GF MSP/- BY ORDER SENIOR PRIVATE SECRETARY, ITAT, BANGALORE.