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

MA 72/CHANDI/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8315 (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: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 12-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Tax effect; TDS; Set aside
• Section: 268A

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. 71 TO 73/CHD/2019 ( ARISING OUT OF ITA NOS. 882 TO 884/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, CHANDIGARH ./PAN NO AAALP0048F / 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 MISTAKE APPARENT ON RECORD HAS OCCURRED IN ORDER DATED 1.11.2018 OF THE TRIBUNAL IN DISMISSIN G THE APPEALS OF THE REVENUE BEARING ITA NOS. 882 TO 884/CHD/2013 ON TH E GROUND OF TAX INVOLVED BEING LESS THAN THE PRESCRIBED MONETARY LI MIT OF RS. 20 LACS BY THE CBDT VIDE CIRCULAR NO. 3/2018 U/S 268 A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). M.A. NOS. 71 TO 73-CHD/2019 IN ITA NOS. 882 TO 884- CHD/2013 M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, CHANDI GARH 2 2. IT HAS BEEN PLEADED THAT IN THE CAPTIONED APPEAL S THE MATTER HAD BEEN REMANDED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT TO THIS TRIBUNAL FOR DECISION AFRESH VIDE ORDER DATED DECEM BER 20, 2016 PASSED IN ITA NOS. 66, 71 & 99 OF 2016 OF THE REVENUE AGA INST THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 30.9.2015. THAT IN THE ORIGINAL APPEALS, THE TAX EFFECT INVOLVED WAS MORE THAN THE PRESCRIBED LIMIT OF RS. 20 LACS, HOWEVER, THE HON'BLE HIGH COURT HAD GI VEN PART RELIEF TO THE ASSESSEE AND FURTHER THE MATTER WAS RESTORED T O THE TRIBUNAL FOR DECIDING THE MAIN ISSUE AS TO WHETHER THE ASSESSEE WAS LIABLE FOR COLLECTION OF TAX AT SOURCE U/S 206C OF THE ACT. THAT THE TRIBUNAL, HOWEVER, HAS DISMISSED THE APPEALS OF THE REVENUE T AKING INTO CONSIDERATION THE TAX EFFECT INVOLVED AFTER DECISIO N OF THE HON'BLE HIGH COURT WHEREBY THE HON'BLE HIGH COURT HAS GIVEN PART RELIEF TO THE ASSESSEE AND FURTHER DECIDED THE ISSUE OF THE LIABI LITY OF THE ASSESSEE TO PAY INTEREST U/S 206C(7) OF THE ACT IN FAVOUR OF TH E REVENUE. THAT, THEREFORE, A MISTAKE HAS OCCURRED IN THE ORDER OF T HE TRIBUNAL IN DISMISSING THE APPEALS ON THE GROUND OF LOW TAX EFF ECT. 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 M.A. NOS. 71 TO 73-CHD/2019 IN ITA NOS. 882 TO 884- CHD/2013 M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, CHANDI GARH 3 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 AND HAVE ALS O GONE THROUGH THE RECORD. THE BRIEF FACTS OF THE CASE ARE THAT T HE ASSESSING OFFICER VIDE ORDERS PASSED U/S 206C (1C) / 206C (7) OF THE ACT HELD THAT THE ASSESSEE HAD RECEIVED CERTAIN AMOUNTS DURING THE A FORESAID ASSESSMENT YEARS FOR DIFFERENT ROAD PROJECTS FROM M/S ROHAN R AJDEEP TOLLWAYS LTD., WHEREUPON, THE ASSESSEE WAS REQUIRED TO COLLE CT TAX AT SOURCE AS PER THE PROVISIONS OF SECTION 206C OF THE INCOME TA X ACT BUT THE ASSESSEE FAILED TO DO SO. THE ASSESSING OFFICER, TH EREFORE, HELD THE ASSESSEE AS ASSESSEE IN DEFAULT U/S 206C (6A) OF THE ACT AND CREATED DEMAND ON ACCOUNT OF NON-COLLECTION OF TAX U/S 206 (C)(1C) AND INTEREST ACCRUED THEREUPON U/S 206C (7) OF THE ACT. THE ISS UES INVOLVED IN ALL THE THREE CASES FOR DIFFERENT ASSESSMENT YEARS WERE COMMON EXCEPT THE QUANTUM OF DEMAND AND INTEREST RAISED BY THE REVENU E FOR DIFFERENT ASSESSMENT YEARS INVOLVED. 4. BEING AGGRIEVED BY THE ABOVE ORDER OF THE ASSESS ING OFFICER, THE ASSESSEE PREFERRED APPEALS AGAINST THE RESPECTIVE O RDERS OF THE ASSESSING OFFICER FOR EACH OF THE ASSESSMENT YEAR INVOLVED. T HE LD. CIT(A) GAVE PART RELIEF TO THE ASSESSEE IN RESPECT OF CERTAIN PROJECTS, HOWEVER, UPHELD THE DEMAND IN RESPECT OF SOME OTHER PROJECTS . THE MAIN REASON FOR GIVING THE PART RELIEF IN RESPECT OF CERTAIN PR OJECTS BY THE LD. CIT(A) M.A. NOS. 71 TO 73-CHD/2019 IN ITA NOS. 882 TO 884- CHD/2013 M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, CHANDI GARH 4 WAS THAT THE CIT(A) WAS OF THE VIEW THAT THE PROVIS IONS OF SECTION 206C(1C) / 206C (7) WERE NOT APPLICABLE TO THOSE PR OJECTS AS THE PROJECTS WERE AWARDED ON BUILT, OPERATE - TRANSFER (BOT) BASIS AND THAT THE AMOUNT RECEIVED WAS A COMMISSION FEE AND NOT A TOLL FEE, THEREFORE, PROVISIONS OF SECTION 206C(7) OF THE ACT COULD NOT BE APPLIED. 5. BEING AGGRIEVED BY THE ORDER OF THE CIT(A) BOTH THE ASSESSEE AS WELL AS REVENUE PREFERRED APPEALS BEFORE THIS TRIB UNAL. THE TRIBUNAL VIDE CONSOLIDATED ORDER DATED 30.9.2015 PASSED IN 15 APPEALS PREFERRED BY THE ASSESSEE AS WELL AS REVENUE INCLUDING THE AP PEALS IN QUESTION OF THE REVENUE HELD THAT THE PROVISIONS OF SECTION 20 6C(1C) AND 206C(7) OF THE ACT WERE NOT APPLICABLE AS THE ASSESSEE HAD RECEIVED THE PAYMENTS AS COMMISSION FEE AND NOT AS TOLL FEE AND ACCORDINGLY UPHELD THE ORDER OF THE CIT(A) ON THIS ISSUE. 6. BEING AGGRIEVED BY THE ABOVE ORDER OF THE TRIBUN AL, THE REVENUE PREFERRED APPEALS BEFORE THE HON'BLE PUNJAB & HARYA NA HIGH COURT. THE HON'BLE PUNJAB & HARYANA HIGH COURT VIDE ORDER DATE D 20.12.2016 (SUPRA) OBSERVED THAT THE TRIBUNAL UPHELD THE ORDER OF THE CIT(A) WITHOUT FURNISHING ANY REASONS. THE HON'BLE HIGH CO URT OBSERVED THAT THERE WERE TWO ISSUES INVOLVED IN THIS CASE, THE MA IN ISSUE WAS WHETHER THE PROVISIONS OF SECTION 206C (1C) WERE APPLICABLE TO THE CASE OF THE ASSESSEE AND THE ALTERNATE ISSUE WAS THAT WHEN THE PAYER HAS FILED THE INCOME TAX RETURN SHOWING NIL INCOME / LOSSES, EV EN THEN, WHETHER THE ASSESSEE / PERSON RESPONSIBLE WAS LIABLE TO PAY IN TEREST U/S 206C(7) OF M.A. NOS. 71 TO 73-CHD/2019 IN ITA NOS. 882 TO 884- CHD/2013 M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, CHANDI GARH 5 THE ACT. THE HON'BLE HIGH COURT GAVE A CATEGORICAL DIRECTION, IT WOULD, HOWEVER, BE NECESSARY FOR THE TRIBUNAL TO DE CIDE BOTH THE ISSUES . THE HON'BLE HIGH COURT, ACCORDINGLY SET ASIDE TH E IMPUGNED ORDER AND REMANDED THE MATTER TO THE TRIBUNAL FOR D ECISION AFRESH IN ACCORDANCE WITH LAW. 7. IN VIEW OF THE ABOVE FACTS, THE MATTER HAD BEEN ENTIRELY REMANDED BY THE HON'BLE HIGH COURT TO THE TRIBUNAL FOR DECIS ION AFRESH. IT IS NOT A CASE WHERE THE HON'BLE HIGH COURT HAD DECIDED PART OF THE MATTER AND RESTORED THE MATTER IN PART TO THE TRIBUNAL, RATHER , THE ENTIRE MATTER HAD BEEN RESTORED TO THE TRIBUNAL FOR ADJUDICATION AFRE SH. THEREFORE, AT THE TIME OF ADJUDICATION OF THESE APPEALS, THE TAX EFFE CT INVOLVED WAS TO BE CALCULATED AS PER THE GROUNDS OF APPEAL TAKEN BY TH E REVENUE BEFORE THIS TRIBUNAL. 8. A PERUSAL OF THE ORDER OF THE CIT(A) AS WELL AS THE GROUNDS OF APPEAL TAKEN BY THE REVENUE BEFORE THIS TRIBUNAL IN ALL THESE THREE APPEALS REVEAL THAT THE LD. CIT(A) HAD UPHELD IN P ART THE ADDITION MADE BY THE ASSESSING OFFICER AND ONLY A PART RELIEF HAS BEEN GIVEN. THE TAX EFFECT INVOLVED IN ITA NO. 882/CHD/2013 WAS RS. 6. 68 LACS, IN ITA NO. 883/CHD/2013 WAS RS. 8.39 LACS AND IN ITA NO. 884/ CHD/2013 WAS RS. 5.34 LACS. THE CONTENTION OF THE REVENUE THROUGH TH IS APPLICATION THAT THE HON'BLE HIGH COURT HAD GIVEN PART RELIEF IN R EVENUES APPEAL, IS M.A. NOS. 71 TO 73-CHD/2019 IN ITA NOS. 882 TO 884- CHD/2013 M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, CHANDI GARH 6 WRONG. THE MATTER HAD ENTIRELY BEEN REMANDED BACK T O THE TRIBUNAL AND THE TAX EFFECT AS PER ORIGINAL GROUNDS OF APPEAL WA S LESS THAN THE PRESCRIBED LIMIT OF RS. 20 LACS, AS PER CBDT CIRCUL AR NO. 3/2018 OF THE CBDT NOTIFIED U/S 268A OF THE INCOME TAX ACT AS ON THE DATE OF DISPOSAL OF THESE APPEALS. IN VIEW OF THIS, WE DO NOT FIND ANY ERROR IN THE OR DER DATED 01.11.2018 OF THIS TRIBUNAL WHILE DISMISSING THE A PPEALS OF THE REVENUE DUE TO LOW TAX EFFECT. 9. SO FAR AS THE CLERICAL ERROR POINTED OUT IN THE HEADER OF UPPER RIGHT SIDE ON THE EACH PAGE OF THE ORDER IS CONCERNED, TH E SAME NEEDS TO BE RECTIFIED. A CORRIGENDUM BE ISSUED IN THIS RESPECT WHICH MAY BE ATTACHED WITH THE MAIN ORDER. THE APPLICATIONS OF THE REVENUE ARE DISPOSED OFF IN THE ABOVE TERMS. 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 M.A. NOS. 71 TO 73-CHD/2019 IN ITA NOS. 882 TO 884- CHD/2013 M/S PUNJAB INFRASTRUCTURE DEVELOPMENT BOARD, CHANDI GARH 7 3. ' / / CIT 4. ' / ( )/ THE CIT(A) 5. -01 2 , $ 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7# / GUARD FILE &+ ' / BY ORDER, 8 ! / ASSISTANT REGISTRAR