ACIT (TDS), Noida V. Jaypee Infratech Ltd., Noida

MA 775/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3256 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 28-07-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 03-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; TDS
• Section: 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘D’ NEW DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. No.775/Del/2019 [Arising out of ITA No.4284/Del/2015 Assessment Year: 2011-12 And M.A. No.776/Del/2019 [Arising out of ITA No.4285/Del/2015 Assessment Year: 2012-13 And M.A. No.777/Del/2019 [Arising out of ITA No.4286/Del/2015 Assessment Year: 2013-14 ACIT (TDS), Noida Vs. Jaypee Infratech Ltd., Sector-128, Noida PAN :AABCJ9042R (Applicant) (Respondent) ORDER PER SAKTIJIT DEY, JM: Captioned applications have been filed by the Revenue seeking recall/rectification of order dated 29.03.2019 passed by the Tribunal in M.A. Nos. 320 to 322/Del/2018. Applicant by Sh. Ashwani Kumar Garg, Advocate Respondent by Sh. Sanjay Kumar, Sr. DR Date of hearing 29.07.2022 Date of pronouncement 08.08.2022 M.A. Nos.775, 776 & 777 of 2019 2 | P a g e 2. We have heard Sh. Ashwani Kumar Garg, learned counsel appearing for the assessee and Sh. Sanjay Kumar, learned Departmental Representative. 3. As could be seen from the contents of miscellaneous application, the Revenue seeks recall/rectification of the order referred to above on the ground that the Tribunal has erroneously disposed of the miscellaneous applications filed by the Revenue, stating that the issue was not agitated by the Revenue in their appeals arising out of the proceeding under sections 201 and 271C of the Act. It is fairly well settled, an application seeking rectification of an order passed, while disposing of a miscellaneous application, is not maintainable. Even otherwise also, while disposing of the earlier miscellaneous applications, filed by the Revenue, the Tribunal in the impugned order, having considered the issue, had observed that there was no error/mistake in the appellate orders of the Tribunal. Thus, once, the Tribunal has held so, the department cannot agitate the issue again taking recourse to section 254(2) of the Act. In any case of the matter, it is observed, after recall of the order passed by the Tribunal in the proceedings arising out of 201(1)/201(1A) of the Act, the appeals being ITA No. 4284 to 4286/Del/2015 were again heard by the Tribunal and vide M.A. Nos.775, 776 & 777 of 2019 3 | P a g e order dated 23.11.2021, the Tribunal has held that there is no liability on the assessee to deduct tax at source, hence, the assessee cannot be treated as an assessee in default under section 201 of the Act. 4. Thus, in view of the aforesaid decision of the Tribunal, penalty under section 271C of the Act, in any case, cannot be imposed. Thus, for all practical purposes, these applications have become infructuous. Hence, we have no hesitation in dismissing them. 5. In the result, all the applications are dismissed. Order pronounced in the open court on 8 th August, 2022 Sd/- Sd/- (ANIL CHATURVEDI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 8 th August, 2022. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi