M/S TAHIR SCRAP TRADERS, KOTA V. INCOME TAX OFFICER (TDS), KOTA

MA 59/JPR/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5381 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Keywords: Non-deduction of tax; TDS
• Section: 201

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM M.A. NOS. 59 & 60/JP/2020 (ARISING OUT OF ITA NOS. 60 & 61/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 M/S TAHIR SCRAP TRADERS, BENGALI COLONY, CHHAWANI, KOTA CUKE VS. ITO (TDS), KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: JDHT01566F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. SIDHARTH RANKA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SH. A. S. NEHRA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17/09/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/09/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THESE ARE TWO MISCELLANEOUS APPLICATIONS FILED BY T HE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH I N ITA NOS. 60 & 61/JP/2018 DATED 03/01/2020 FOR ASSESSMENT YEAR 201 0-11. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THERE I S A DELAY OF 21 DAYS IN FILING THE PRESENT MISCELLANEOUS APPLICATIONS AN D THE REASON FOR DELAY HAS BEEN STATED TO BE NATIONAL LOCKDOWN ON ACCOUNT OF THE COVID-19 PANDEMIC. IT WAS SUBMITTED THAT THE DELAY SO HAPPEN ED WAS BEYOND THE CONTROL OF THE ASSESSEE AND THE SAME MAY BE CONDONE D ESPECIALLY IN LIGHT M.A. NO. 59 & 60/JP/2020 TAHRI SCRAP TRADERS, KOTA VS. ITO, TDS, KOTA 2 OF RELAXATION IN LIMITATION GRANTED BY THE HONBLE SUPREME COURT VIDE ITS ORDER DATED 23.03.2020. AFTER HEARING BOTH THE PART IES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, THE DELAY SO HAPPENED IN FILING THE PRESENT MISCELLANEOUS APPLICATIONS ARE HEREBY CONDONED AND THE SAME ARE ADMITTED ARE ADJUDICATION. 3. NOW COMING TO THE MERITS OF THE MISCELLANEOUS A PPLICATIONS, THE LD. AR TAKEN US THROUGH THE ORDER OF THE CO-ORDINAT E BENCH WHEREIN THE MATTER RELATING TO TREATING THE ASSESSEE IN DEFAULT U/S 201(1)/201(1A) OF SECTION 206C OF THE ACT ALONG WITH THE IMPOSITION O F PENALTY U/S 271CA WAS RAISED. OUR REFERENCE WAS DRAWN TO PARA 4 OF TH E DECISION OF THE CO- ORDINATE BENCH WHERE THE CO-ORDINATE BENCH HAS GIVE N A FINDING THAT IT DOES NOT FIND MERIT IN THE ORDER OF AO TREATING THE ASSESSEE IN DEFAULT FOR NON-DEDUCTION OF TAX U/S 206C(1) OF THE ACT IN RESP ECT OF SCRAP SALES AFFECTED BY HIM DURING THE YEAR UNDER CONSIDERATION . IN RESPECT OF IMPOSITION OF PENALTY U/S 271CA, OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE CO-ORDINATE BENCH IN PARA 10 OF ITS ORDER WH EREIN THE MATTER WAS RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE I SSUE AFRESH. FURTHER, OUR REFERENCE WAS DRAWN TO PARA 11 OF THE ORDER OF THE CO-ORDINATE BENCH WHEREIN BOTH THE APPEALS OF THE ASSESSEE ARE STATED TO BE ALLOWED FOR STATISTICAL PURPOSES. 4. IT WAS SUBMITTED BY THE LD AR THAT THE COORDINAT E BENCH HAS HELD THAT FIRSTLY, THE ASSESSEE CANNOT BE HELD AS ASSESS EE IN DEFAULT FOR NON DEDUCTION OF TAX U/S 206C (1) OF THE ACT. HOWEVER, WHEN IT COMES TO LEVY OF CONSEQUENT PENALTY U/S 271CA OF THE ACT, THE MAT TER HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. IT WAS ACCORDINGLY HELD WHERE UNDER THE QUANTUM PROCEEDINGS, THE MATTER WAS DECIDED IN FAVOUR OF THE ASSESSEE, THE MATTER RELATING TO CONSEQUENT PENALTY U/S 271CA OF M.A. NO. 59 & 60/JP/2020 TAHRI SCRAP TRADERS, KOTA VS. ITO, TDS, KOTA 3 THE ACT SHOULD HAVE ALSO BE DECIDED IN FAVOUR OF TH E ASSESSEE AS THE PENALTY PROCEEDINGS HAVE NO INDEPENDENT LAGS TO STA NDS IN ABSENCE OF DELETION OF ADDITION IN QUANTUM PROCEEDINGS. 5. PER CONTRA, THE LD. DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE CO-ORDINATE BENCH. 6. HEARD BOTH THE PARTIES AND PURUSED THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE ORDER PASSED BY THE CO-O RDINATE BENCH, WE FIND THAT IN PARA 4, THE CO-ORDINATE BENCH HAS DECI DED THE MATTER IN FAVOUR OF THE ASSESSEE AND RELEVANT FINDING READS A S UNDER:- AS PER THE LD. AR, THE APPLYING PROPOSITION OF LAW LAID DOWN IN THE ABOVE DECISION WHEREIN THE HONBLE GUJARAT HIGH COURT WAS ALSO RELIED TO THE FACTS OF INSTANT CASE, THEREFORE, I DO NOT FIND ANY MERIT IN THE ORDER OF THE AO TREATING THE ASSESSEE IN DEFAULT FOR NON-DEDUCTI ON OF TAX U/S 206C(1) OF THE ACT IN RESPECT OF SCRAP SALES AFFECTED BY HI M DURING THE YEAR UNDER CONSIDERATION. 7. WHEREAS WHEN IT COMES TO THE MATTER RELATING TO LEVY OF PENALTY U/S 271CA, THE FINDINGS ARE CONTAINED AT PARA 10 WH EREIN THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE SAME AFRESH AND THEREAFTER, IN PARA 11, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. WE THEREFORE, FIND THAT THERE IS AN APPARENT MIS TAKE WHICH HAS CREPT IN THE ORDER OF THE CO-ORDINATE BENCH WHEREIN IN THE QUANTUM PROCEEDINGS, THE MATTER HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AND M.A. NO. 59 & 60/JP/2020 TAHRI SCRAP TRADERS, KOTA VS. ITO, TDS, KOTA 4 IN THE SAME ORDER, THE MATTER RELATING TO CONSEQUEN T LEVY OF PENALTY HAS BEEN RESTORED BACK TO THE FILE OF THE AO. THEREFORE , THE FINDINGS RECORDED IN PARA 10 WHILE DISPOSING OFF GROUND RELATING TO L EVY OF PENALTY U/S 271CA IS HEREBY RECTIFIED/AMENDED WITH THE FOLLOWI NG FINDINGS WHICH SHALL READ AS UNDER:- AS WE HAVE HELD IN PARA 4 ABOVE THAT THERE IS NO M ERIT IN THE ORDERS OF THE AO TREATING THE ASSESSEE IN DEFAULT FOR NON DED UCTION OF TAX U/S 206C(1) OF THE ACT IN RESPECT OF SCRAP SALES AFFECT ED BY HIM DURING THE YEAR UNDER CONSIDERATION, THE CONSEQUENT LEVY OF PE NALTY U/S 271CA OF THE ACT IS HEREBY DIRECTED TO BE DELETED. 9. FURTHER, IN CONCLUDING PARA 11, IN PLACE OF EXIS TING FINDING, IT SHOULD READ AS BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED. 10. SUBJECT TO ABOVE CHANGES IN PARA 10 AND 11 OF THE ORDER PASSED BY THE TRIBUNAL, THERE IS NO OTHER CHANGE IN THE ORDER SO PASSED. THE ORDER DATED 03/01/2020 SHOULD THEREFORE BE READ ALONG WIT H THE PRESENT ORDER CONTAINING THE RECTIFICATIONS AS DISCUSSED ABOVE. IN THE RESULT, MISCELLANEOUS APPLICATIONS SO FILED BY THE ASSESSEE ARE DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 21/09/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/09/2021. * GANESH KR. M.A. NO. 59 & 60/JP/2020 TAHRI SCRAP TRADERS, KOTA VS. ITO, TDS, KOTA 5 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S TAHIR SCRAP TRADERS, KOTA 2. IZR;FKHZ@ THE RESPONDENT- ITO (TDS), KOTA 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 59 & 60/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR