DCIT (TDS), Chandigarh V. M/s Punjab Infrastructure Development Board, Chandigarh

MA 67/CHANDI/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8311 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Principle of natural justice; Question of law; Tax effect; TDS; Set aside
• Section: 194C; 201(1); 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH , ! . .., # $, %& BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER M.A. NOS. 66 TO 67/CHD/2019 ( ARISING OUT OF ITA NOS. 1354 TO 1355/CHD/2012 DECIDED VIDE ORDER 01.11.2018) / ASSESSMENT YEARS : 2007-08 & 2008-09 THE DCIT (TDS), CHANDIGARH M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, SCO 33-35, SECTOR 34-A, CHANDIGARH ./PAN NO AAALP0048F / PTLP 10093G APPELLANT /RESPONDENT M.A. NOS. 68 TO 70/CHD/2019 ( ARISING OUT OF ITA NOS. 774 TO 776/CHD/2013 DECIDED VIDE ORDER 01.11.2018) / ASSESSMENT YEARS : 2009-10, 2010-11 & 2011-12 THE DCIT (TDS), CHANDIGARH M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, SCO 33-35, SECTOR 34-A, CHANDIGARH ./PAN NO. PTLP 10093G APPELLANT /RESPONDENT /ASSESSEE BY : SH. DEEPAK AGGARWAL ! / REVENUE BY : SH. MANJIT SINGH, CIT DR ' # $ /DATE OF HEARING : 08.08.2019 %&'( $ / DATE OF PRONOUNCEMENT : 04.10.2019 %(/ ORDER PER SANJAY GARG, JUDICAL MEMBER : THE CAPTIONED MISC. APPLICATIONS HAVE BEEN MOVED BY THE DEPARTMENT PLEADING THAT A MISTAKE APPARENT ON RECO RD HAS OCCURRED IN CONSOLIDATED ORDER DATED 1.11.2018 OF THIS TRIBUNAL IN DISMISSING THE M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 2 APPEALS OF THE REVENUE BEARING ITA NOS. 1354 & 1355 /CHD/2012 AND ITA NOS. 774 TO 776/CHD/2013 ON THE GROUND OF TAX INVOLVED BEING LESS THAN THE PRESCRIBED MONETARY LIMIT OF RS. 20 LACS B Y THE CBDT VIDE CIRCULAR NO. 3/2018 U/S 268 A OF THE INCOME TAX ACT , 1961 (IN SHORT 'THE ACT'). 2. IT HAS BEEN CONTENDED THAT THE DEPARTMENT HAD FI LED THE APPEALS BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT AGAI NST THE COMMON ORDER OF THE TRIBUNAL DATED 30.09.2015. THAT THE M ATTER IN THESE APPEALS WERE REMANDED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT VIDE COMBINED ORDER DATED 20.12.2016 TO DECIDE THE LIMIT ED / MAIN ISSUE AS TO WHETHER THE ASSESSEE WAS LIABLE FOR DEDUCTION OF TA X U/S 194C OF THE ACT. HOWEVER, THE SUBSTANTIAL QUESTION OF LAW FRAMED BY THE HON'BLE HIGH COURT AS TO WHETHER THE ASSESSEE WAS LIABLE TO PAY INTEREST U/ S 201(1A) OF THE ACT FOR NON / LATE DEDUCTION OF TDS , HAS BEEN ANSWERED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. THAT THE TRIBUNAL VIDE COMBINED ORDER DATED 01.11.2018 HAS DISMISSED THE APPEALS ON THE GROUND THAT TAX EFFECT INVOLVED IN THESE APPEALS WA S LESS THAN THE PRESCRIBED LIMIT OF RS. 20 LACS AS PER CBDT CIRCULA R NO. 3/2018, WITHOUT APPRECIATING THAT THE MATTER IN THESE APPEA LS WAS REMANDED BACK BY THE HON'BLE HIGH COURT FOR ADJUDICATION ON ONE OF THE TWO ISSUES INVOLVED. THAT THE OTHER ISSUE INVOLVED HAS ALREADY BEEN ADJUDICATED BY THE HON'BLE HIGH COURT IN FAVOUR OF THE REVENUE, HOWEVER, GIVING PART RELIEF TO THE ASSESSEE ALSO, T HEREFORE, A MISTAKE HAS M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 3 OCCURRED IN THE ORDER OF THE TRIBUNAL IN DISMISSING THE APPEALS ON THE GROUND OF TAX EFFECT INVOLVED AS THESE APPEALS WERE NOT TO BE ADJUDICATED ON THE ORIGINAL GROUNDS OF APPEAL TAKEN BY THE REVE NUE. THAT, MOREOVER THE TAX EFFECT INVOLVED HAS BEEN COMPUTED AFTER TH E GRANT OF PART RELIEF TO THE ASSESSEE BY THE HON'BLE HIGH COURT AND NOT ON THE BASIS OF ORIGINAL GROUNDS OF APPEAL OF THE REVENUE. FURTHER, IT HAS ALSO BEEN PLEADED THAT A TYPOGRAPHI CAL ERROR HAS OCCURRED IN THE HEADER ON THE UPPER RIGHT SIDE OF T HE ORDER, WHEREIN, THE CASE NAME HAS BEEN WRONGLY MENTIONED AS M/S OCTAMA C SOFTWARE PVT LTD, CHANDIGARH AND THE ITA HAS ALSO BEEN WRONGLY MENTIONED AS ITA NO.991/CHD/2017. IT HAS, THEREFORE, BEEN PLEADED THAT THE ORDER DISMISSING THE APPEALS OF THE REVENUE DUE TO LOW TA X EFFECT BE RECALLED AND THE MATTER BE ADJUDICATED AFRESH. 3. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. R EPRESENTATIVES OF THE PARTIES AND HAVE GONE THROUGH THE RECORD. THE B RIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER VIDE ORDERS PASSED U/S 201(1) / 201(1A) OF THE ACT HELD THAT THE ASSESSEE WAS LIABLE TO DED UCT TAX AT SOURCE IN RESPECT OF CERTAIN PAYMENTS MADE BY IT AS PER THE PROVISIONS OF SECTION 194C OF THE ACT AND, ACCORDINGLY, CREATED THE DEMAN D. HE ALSO CREATED DEMAND OF INTEREST THEREUPON. HOWEVER, SINCE THE A SSESSEE HAD FAILED TO DO SO, HE, THEREFORE, HELD THE ASSESSEE IN DEFAU LT U/S 201(1) & 201(1A) M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 4 OF THE ACT AND CREATED DEMAND FOR NON-DEDUCTION OF TDS AS WELL AS ACCRUED INTEREST THEREUPON. 4. THE APPEALS FILED BY THE ASSESSEE AGAINST THE AF ORESAID DEMAND CREATED BY THE ASSESSING OFFICER WERE ALLOWED BY TH E CIT(A) VIDE SEPARATE ORDERS DATED 13.10.2012 (IN ITA 1354 & 135 5/CHD/2012) AND 01.4.2013 (IN ITA NOS.774 TO 776/CHD/2013) HOLDING THAT THE PROVISIONS OF SECTION 194C WERE NOT APPLICABLE TO THE ASSESSEE S CASE, THEREFORE, THE ASSESSEE COULD NOT BE SAID TO BE THE ASSESSEE IN D EFAULT U/S 201 & 201(1A) OF THE ACT. THE LD. CIT(A) DID NOT ADJUDICA TE THE ALTERNATIVE ISSUE RAISED BY THE ASSESSEE IN THE APPEALS THAT EV EN ASSUMING THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE U/S 194 C OF THE ACT, EVEN THEN IT WAS NOT LIABLE TO PAY INTEREST U/S 201(1A) AS THE PAYEES OF THE AMOUNTS HAD FILED THEIR RETURNS DECLARING NIL INCOM E AND, HENCE, NO TAX IN FACT WAS PAYABLE BY THEM. THE REVENUE PREFERRED APPEALS AGAINST THE ORDER OF THE CIT(A) BEFORE THIS TRIBUNAL, HOWEVER, THIS TRIBUNAL VIDE CONSOLIDATED ORDER DATED 30.09.2015 DISMISSED THE C APTIONED APPEALS OF THE REVENUE BUT ON THE BASIS OF THE ALTERNATIVE CON TENTION OF THE ASSESSEE THAT THE ASSESSEE WAS NOT LIABLE TO PAY I NTEREST U/S 201(1A) OF THE ACT AS THE PAYEES OF THE AMOUNT HAD FILED THEIR RETURNS SHOWING NIL TAX EFFECT / LOSSES. 5. BEING AGGRIEVED BY THE ABOVE ORDER OF THE TRIBUN AL, THE REVENUE PREFERRED APPEALS BEFORE THE HON'BLE HIGH COURT. TH E HON'BLE HIGH M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 5 COURT WHILE ADJUDICATING THE APPEALS BEARING ITA N OS. 73, 72, 96, 75 AND 74 RELATING TO ASSESSMENT YEARS 2007-08 TO 2011 -12 RESPECTIVELY, WITH THE MAIN ORDER PASSED IN ITA NO. 73 OF 2016 DA TED 20.12.2016, DECIDED THE ALTERNATIVE ISSUE IN FAVOUR OF THE REVE NUE AND AGAINST THE ASSESSEE HOLDING THAT THE ASSESSEE WAS LIABLE TO PA Y INTEREST U/S 201 (1A) OF THE ACT. HOWEVER, THE HON'BLE HIGH COURT REMANDED THE MATTER FOR ADJUNCTION ON THE OTHER ISSUE TO WHETHER THE A SSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE PER THE PROVISIONS OF SECTION 194C OF THE ACT OR NOT?. THE HON'BLE HIGH COURT THEREFORE, REVERSED THE ORDE R OF THE TRIBUNAL ON THE ALTERNATIVE CONTENTION OF THE ASSES SEE. SINCE THE TRIBUNAL HAD ONLY CONSIDERED THE ASSESSEES ALTERNA TIVE CONTENTION AND DID NOT ADJUDICATE THE MAIN CONTENTION THAT THE PRO VISIONS OF SECTION 194C OF THE ACT WERE APPLICABLE AT ALL, THE HON'BLE HIGH COURT REMANDED THE MATTER ON THIS ISSUE TO THE TRIBUNAL. HOWEVER, THE HON'BLE HIGH COURT GAVE CATEGORICAL FINDINGS THAT THE QUESTION O F LAW FRAMED BY THE HON'BLE HIGH COURT IN THE APPEALS OF THE REVENUE WA S ANSWERED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE AND ACCORDINGLY ALLOWED THE APPEALS OF THE REVENUE. AGAINST THE ORDER OF THE HON'BLE HIGH COURT, WE HAV E BEEN TOLD THAT THE ASSESSEE HAS ALREADY FILED SLPS BEFORE THE HON'BLE SUPREME COURT. THE MATTER IN THE CAPTIONED APPEALS, THEREF ORE, WAS REMANDED BY THE HON'BLE HIGH COURT FOR DECIDING ONE OF THE TWO ISSUES INVOLVED IN M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 6 THESE APPEALS AND THE OTHER ISSUE HAVE ALREADY BEEN CONSIDERED AND DECIDED BY THE HON'BLE HIGH COURT IN FAVOUR OF THE REVENUE, THOUGH THE ASSESSEE ALSO GETTING SOME PART RELIEF THEREFROM. IN VIEW OF THE ABOVE FACTS, WE ARE OF THE VIEW, TH AT THE MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL IN DISMISSING THESE APPEALS ON THE GROUND OF LAW TAX EFFECT INVOLVED. IN FACT, THE APP EALS OF THE REVENUE HAD ALREADY BEEN ADJUDICATED BY THE TRIBUNAL BY OR DER DATED 30.09.2015 WHEREUPON, THE APPEALS WERE PREFERRED TO THE HON'B LE HIGH COURT AND THE HON'BLE HIGH COURT HAS ALREADY DECIDED PART OF THE ISSUE. THE MATTER BEFORE THE TRIBUNAL WAS NOT FOR ADJUDICA TION ON ALL THE ORIGINAL GROUNDS TAKEN BY THE REVENUE IN THESE APPE ALS, RATHER, THE TRIBUNAL WAS DIRECTED BY THE HON'BLE HIGH COURT TO ADJUDICATE UPON ONLY ONE OF THE TWO ISSUES INVOLVED. THE ORIGINAL ORDER OF THE TRIBUNAL DATED 30.09.2015, THEREFORE, MERGED WITH THE ORDERS OF TH E HON'BLE HIGH COURT. THE DISMISSAL BECAUSE OF THE LOW TAX EFFECT COULD HAVE BEEN DONE, IF THE ENTIRE MATTER WOULD HAVE BEEN BEFORE THE TRIBUNAL AS PER THE GROUND RAISED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A). HOWEVER, THIS WAS NOT SO. EVEN THE TRIBUNAL HAS TAK EN INTO CONSIDERATION THE TAX EFFECT INVOLVED AFTER PART RE LIEF GRANTED BY THE HON'BLE HIGH COURT TO THE ASSESSEE. UNDER THE CIRCU MSTANCES, THE DISMISSAL OF THE APPEALS TAKING INTO CONSIDERATION THE TAX EFFECT INVOLVED AFTER THE ADJUDICATION GIVEN BY THE HON'BL E HIGH COURT AND M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 7 CONSIDERING THE RELIEF GRANTED BY THE HON'BLE HIGH COURT WAS NOT CORRECT AND, THEREFORE, A MISTAKE HAS OCCURRED IN D ISMISSING THESE APPEALS OF THE REVENUE ON THE GROUND OF LOW TAX EFF ECT WITHOUT APPRECIATING THE TRUE FACTS OF THE CASE. THESE ARE NOT THE CASES WHERE THE ENTIRE MATTER HAD BEEN SET ASIDE BY THE HON'BLE HIG H COURT FOR DECISION AFRESH, RATHER, IN THESE CASES, THE MATTER HAD BEEN REMANDED BACK TO THE TRIBUNAL FOR ADJUDICATING UPON ON THE ISSUE THAT W AS LEFT UN-ADJUDICATED BY THE TRIBUNAL WHILE DECIDING THE APPEALS OF THE REVENUE VIDE ORDER DATED 30.9.2015. IN VIEW OF THIS, THE ORDER DATED 1.11.2018 IS RECAL LED AND THE APPEALS ARE RESTORED TO BE REGISTERED AT THEIR ORIG INAL NUMBER. 7. AT THIS STAGE, THE LD. DR HAS SUBMITTED THAT CE RTAIN OTHER APPEALS OF THE ASSESSEE RELATING TO THE SAME MATTER HAVE AL READY BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE, THEREFORE, SINCE THE ISSUE IN THE MAIN APPEALS IS C OVERED AGAINST THE ASSESSEE VIDE ORDER DATED 29.03.2019 OF THIS TRIBUN AL PASSED IN ITA NOS. 880 & 881/CHD/2013 & ORS, THEREFORE, THE MAIN APPEALS MAY BE ACCORDINGLY DISPOSED OFF. WE, HOWEVER, ARE OF THE VIEW THAT THE ASSESSEE SHOU LD BE GIVEN AN OPPORTUNITY OF HEARING ON THE MAIN APPEALS OF THE R EVENUE FOR THE SAKE M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 8 OF PRINCIPLE OF NATURAL JUSTICE. WE, THEREFORE, D IRECT THE REGISTRY TO FIX THE MAIN APPEALS AS EARLY AS POSSIBLE. 8. SO FAR AS THE CLERICAL ERROR POINTED OUT IN THE HEADER OF UPPER RIGHT SIDE ON THE EACH PAGE OF THE ORDER IS CONCERNED, SI NCE THE IMPUGNED ORDER DATED 1.11.2018 HAS ALREADY BEEN RECALLED AND THE MATTER HAS ALREADY BEEN DIRECTED TO BE HEARD AFRESH, THEREFORE , THIS SUBMISSION, AT THIS STAGE, HAS BECOME INFRUCTUOUS AND THE NEW HEAD ER WILL BE INSCRIBED IN THE FORTHCOMING ORDER. WITH THE ABOVE OBSERVATIONS, THE CAPTIONED MISC. AP PLICATIONS ARE HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.10.2019. SD/- SD/- ( . . , # $ / B.R.R. KUMAR) %& / ACCOUNTANT MEMBER ( / SANJAY GARG ) / JUDICIAL MEMBER DATED : 04.10.2019 ** &+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' / / CIT 4. ' / ( )/ THE CIT(A) 5. -01 2 , $ 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7# / GUARD FILE &+ ' / BY ORDER, M.A. NOS. 66 TO 70-CHD/2019 IN ITA NOS. 1354 & 135 5-CHD-2012 & 774 TO776-CHD-2013- M/S PUNJAB INFRASTRUCTURE DEVELOPME NT BOARD, CHANDIGARH 9 8 ! / ASSISTANT REGISTRAR