Oil and Natural Gas Corporation Ltd., Surat V. The ACIT.,(TDS), Surat

MA 89/AHD/2013

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3939 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: S N SOPARKAR
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV , JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER OIL AND NATURAL GAS CORPORATION LTD. GENERAL MANAGER (F & A), HAZIRA PLANT, SURAT V S . THE ACIT (TDS), AYKAR BHAVAN, SURAT PAN NO. AA AC O 1598A (APPELLANT) .. (RESPONDENT) ' /BY ASSESSEE SHRI S. N. SOPARKAR, A.R. $ ' / BY REVENUE SHRI DINESH SINGH, SR. D.R. % ' /DATE OF HEARING 19.02.2016 &'() ' /DATE OF PRONOUNCEMENT 22.03.2016 O R D E R PER : SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER THROUGH THESE MISCELLANEOUS APPLICATIONS (13 IN NUM BER), WHICH HAVE BEEN FILED BY ASSESSEE, THE ASSESSEE WANTS US TO RE CALL THE CONSOLIDATED ORDER PASSED IN ITA NOS.1991 TO 2003/AHD/2011 FOR A.Y. 19 97-98 TO 2009-10, ORDER DATED 22.03.2013. M.A. NOS. 77 TO 89/AHD/2013 (IN ITA NOS. 1991 TO 2003/AHD/2011) ASSESSMENT YEARS :1997-98 & 2009-10 MA NOS. 77 TO 89/AHD/13 A.YS. 97-98 & 09-10 [OIL & NATURAL GAS CORP. LTD. VS. ACIT(TDS)] PAGE 2 2. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THA T THE ISSUE IS COMMON IN ALL THE MISCELLANEOUS APPLICATIONS, THEREFORE, ALL THE MISCELLANEIOUS APPLICATIONS CAN BE HEARD TOGETHER. LD. D.R. DID N OT OBJECT TO THE AFORESAID SUBMISSIONS OF LD. A.R. WE THEREFORE FOR THE SAKE OF CONVENIENCE PROCEED TO DISPOSE OF ALL THE MISCELLANEOUS APPLICATIONS BY A COMMON CONSOLIDATED ORDER. 3. LD. A.R. SUBMITTED THAT WHILE PASSING THE IMPUGN ED ORDER, THE CO- RDINATE BENCH, BY FOLLOWING THE DECISION OF THE CO- ORDINATE BENCH ON IDENTICAL ISSUE IN ITA NO.2972 TO 2978, 2980 TO 298 4, 3046 TO 3051 & 3066 TO 3073 OF 2011 AND FOLLOWING THE ORDER OF THE HON BLE APEX COURT IN SLP(C)NOS.29719-29720/2010 & 29855 29856/2010, OR DER DATED 07.11.2012, PROCEEDED TO HOLD ASSESSEE TO BE DEEMED IN DEFAULT U/S.201(1) OF THE ACT W.E.F. 16.03.2010 AND THEREFORE LIABLE TO P AY INTEREST W.E.F. 16 TH MARCH, 2010 IN ACCORDANCE WITH THE PROVISIONS OF SU B-SECTION 1A OF SECTION 201 OF THE ACT. HE SUBMITTED THAT THERE APPEARS TO BE A TYPOGRAPHICAL ERROR IN THE ORDER IN VIEW OF THE FACT THAT IN THE ORDER OF HONBLE APEX COURT IN THE LAST PART, WHICH HAS BEEN FOLLOWED BY THE HONBLE T RIBUNAL, THE HONBLE COURT HAS HELD THAT THE RESPONDENT SHALL GRANT TIME TO ON GC (I.E. THE ASSESSEE) UP TO 20 TH FEBRUARY, 2013 TO MAKE THE PAYMENT OF TAX ON 10% O F THE SALARY AND THAT INTEREST SHALL BE CALCULATED W.E.F. 16.11.2010 MEANING THEREBY THAT AS PER THE DIRECTIONS OF THE HONBLE APEX COURT, THE ASSES SEE WAS LIABLE FOR INTEREST W.E.F. 16.11.2010 AND NOT FROM 16.03.2010 AS HELD B Y THE HONBLE ITAT. HE, THEREFORE, SUBMITTED THAT IN THE IMPUGNED ORDER PAS SED, THE ASSESSEE SHOULD HAVE BEEN HELD TO BE IN DEFAULT U/S.201(1) OF THE A CT W.E.F. 16.11.2010 INSTEAD OF 16 TH MARCH 2010. HE ALSO POINTED TO THE RELEVANT PORTI ON OF THE ORDER OF HONBLE APEX COURT. HE, THEREFORE, SUBMITTED THAT MENTIONING OF DATE AS 16.03.2010 INSTEAD OF 16.11.2010 IN THE ORDER APPEA RS TO BE A TYPOGRAPHICAL EROR AND THUS IT IS AN ERROR APPARENT ON RECORD AS CONTEMPLATED U/S.254(2) OF MA NOS. 77 TO 89/AHD/13 A.YS. 97-98 & 09-10 [OIL & NATURAL GAS CORP. LTD. VS. ACIT(TDS)] PAGE 3 THE ACT WHICH THEREFORE NEEDS TO BE RECTIFIED. THE LD. D.R., ON THE OTHER HAND, OPPOSED THE MISCELLANEOUS APPLICATION AND THE SUBMI SSIONS OF LD. A.R. HE SUBMITTED THAT ON GOING THROUGH THE ENTIRE ORDER OF HONBLE APEX COURT, WHICH HAS BEEN FOLLOWED BY HONBLE TRIBUNAL, IT IS SEEN THAT AT VARIOUS PLACES IN THE BODY OF ORDER THE REFERENCE TO THE DATE IS O F 16.03.2010 MEANING THEREBY THAT THE INTENTION OF HONBLE APEX COURT WA S TO HOLD THAT ASSESSEE TO BE IN DEFAULT W.E.F. 16.03.2010 AND THAT THE MENTIO N OF DATE OF 16 TH NOVEMBER 2010 IN THE LAST PARA OF THE ORDER APPEARS TO BE A TYPOGRAPHICAL ERROR. HE THEREFORE SUBMITTED THAT IF THE ENTIRE ORDER OF HON BLE APEX COURT IS CONSIDERED IN TOTALITY, IT IS VERY CLEAR THAT ASSES SEE IS HELD LIABLE TO PAY INTEREST W.E.F. 16.03.2010 AND WHICH HAS ALSO BEEN HELD BY H ONBLE ITAT AND THUS THERE IS NO ERROR IN THE ORDER OF ITAT WHICH NEEDS TO BE RECTIFIED. HE FURTHER SUBMITTED THAT ACIT(TDS), AHMEDABAD HAS REQUESTED T HE DIRECTOR (OF LEGAL & RESEARCH) FOR FILING RECTIFICATION APPLICATION AG AINST THE ORDER OF HONBLE SUPREME COURT DATED 07.11.2012 AND THAT STATUS OF S UCH APPLICATION HAS NOT BEEN ASCERTAINED SO FAR. HE, THEREFORE, SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF HONBLE TRIBUNAL AND THUS S UBMITTED THAT THE PRESENT MISCELLANEOUS APPLICATIONS OF THE ASSESSEE BE DISMI SSED. 3.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE US, IT IS REVENUES SUBMISSION THAT IN THE ENTIRE ORDER OF HONBLE APEX COURT WHICH HAS BEEN FOLLOWED BY THE H ONBLE ITAT, THE MENTION OF DATE IN LAST PARA OF THE ORDER OF HONBL E APEX COURT AS 16 TH NOVEMBER, 2010 INSTEAD OF 16 TH MARCH, 2010 APPEARS TO BE TYPOGRAPHICAL ERROR. WE ARE OF THE VIEW THAT, IF THAT BE THE CAS E, THEN THE REVENUE DEPARTMENT SHOULD HAVE TAKEN NECESSARY STEPS TO GE T THE ORDER OF HONBLE APEX COURT MODIFIED/RECTIFIED. WE, HOWEVER, FIND TH AT THOUGH THE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE A SSESSEE IN APRIL 2013 BUT MA NOS. 77 TO 89/AHD/13 A.YS. 97-98 & 09-10 [OIL & NATURAL GAS CORP. LTD. VS. ACIT(TDS)] PAGE 4 TILL DATE, REVENUE DOES NOT SEEM TO HAVE NOT TAKEN ANY CONCRETE STEPS FOR GETTING THE ORDER OF HONBLE APEX COURT MODIFIED/RE CTIFIED NOR HAS THE REVENUE PLACED ANY MATERIAL ON RECORD WHICH COULD D EMONSTRATE THAT THE ORDER OF HONBLE APEX COURT HAS BEEN MODIFIED/RECTI FIED SO AS TO HOLD THE ASSESSEE TO BE IN DEFAULT U/S.201(1) OF THE ACT W.E .F. 16 TH MARCH 2010. WE FURTHER FIND THAT THE HONBLE APEX COURT IN SLP(C) NOS.29719-29720/2010 & 29855 29856/2010, ORDER DATED 07.11.2012 (THAT HA S BEEN FOLLOWED BY THE CO-ORDINATE BENCH OF ITAT) HAS HELD THAT INTEREST I S TO BE CALCULATED W.E.F. 16.11.2010. THE RELEVANT OBSERVATION OF HONBLE AP EX COURT READS AS UNDER: WE HAVE CONSIDERED THE AFORESAID SUBMISSIONS ADVANCED BY THE LEARNED COUNSEL AND WE ARE OF THE VIEW THAT BY THE INTERIM ORDER OF THE HIGH COURT PASSED ON 20TH FEBRUARY, 1996 IN THE WRIT PETITION, THE ON GC WAS PREVENTED TO DEDUCT THE TAX ON 10% OF THE SALARY AND TO PAY THE SAME TO THE CENTRAL GOVERNMENT. IN THE INTERIM ORDER DATED 20TH FEBRUARY, 1996, THE HIGH C OURT HAD NOT HELD THAT THE ONGC WAS NOT LIABLE TO DEDUCT THE TAX UNDER SECTION 192(1) OF THE ACT. THUS, WHEN THE WRIT PETITION WAS DISMISSED ON 15TH MARCH, 2010 BY THE HIGH COURT, THE INTERIM ORDER PASSED BY THE HIGH COURT ON 20TH FEBRUARY, 19 96 HAD TO BE VACATED AND THE PARTIES WERE REQUIRED TO BE PUT BACK IN THE SAME PO SITION AS THEY WOULD HAVE BEEN BEFORE THE INTERIM ORDER WAS PASSED BY THE HIGH COU RT ON 20TH FEBRUARY, 1996 IN ACCORDANCE WITH PROVISIONS OF SECTION 144 OF THE CO DE OF CIVIL PROCEDURE. THE ARGUMENT OF MR. BAGARIA, LEARNED SENIOR COUNSEL THA T THE ONGC WAS NOT LIABLE TO DEDUCT TAX UNDER SECTION 192(1) OF THE ACT AND PAY THE SAME TO THE CENTRAL GOVERNMENT UNDER SECTION 200 OF THE ACT, THEREFORE, HAS NO FORCE. WE ARE ALSO OF THE OPINION THAT DURING THE PERIOD T HE INTERIM ORDER OF THE HIGH COURT WAS IN FORCE, I.E. FROM 20TH FEBRUARY, 1 996 TO 15TH MARCH, 2010, THE ONGC CANNOT BE HELD TO BE IN DEFAULT UNDER THE PROV ISIONS OF THE ACT INASMUCH AS THE ONGC WAS PREVENTED BY THE ORDER OF THE HIGH COU RT FROM DEDUCTING THE TAX ON 10% OF THE SALARY OF ITS EMPLOYEES UNDER SECTION 19 2(1) OF THE ACT, AND TO PAY THE SAME TO THE CENTRAL GOVERNMENT UNDER SECTION 200 OF THE ACT. HENCE, DURING THE PERIOD FROM 20TH FEBRUARY, 1996 TO 15TH MARCH, 2010 , THE ONGC CANNOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE PROVI SIONS OF THE ACT. CONSEQUENTLY, THE PROVISIONS OF SUB-SECTION (1A) OF SECTION 201 O F THE ACT FOR PAYMENT OF INTEREST BY AN ASSESSEE IN DEFAULT UNDER THE PROVISIONS OF T HE ACT WILL NOT BE APPLICABLE TO THE PAYMENTS NOT MADE BY THE ONGC BECAUSE OF THE IN TERIM ORDER PASSED BY THE HIGH COURT WHICH WAS IN FORCE FROM 20TH FEBRUARY, 1 996 TO 15TH MARCH, 2010. AS A MATTER OF FACT, WE FIND THAT IN THE IMPUGNED O RDER, THE HIGH COURT DIRECTED THE ONGC TO QUANTIFY THE TAX LIABILITY EQU IVALENT TO THE AMOUNT OF TDS WHICH WAS DEDUCTIBLE AND PAYABLE TO THE INCOME TAX DEPARTMENT AND REMIT THE MA NOS. 77 TO 89/AHD/13 A.YS. 97-98 & 09-10 [OIL & NATURAL GAS CORP. LTD. VS. ACIT(TDS)] PAGE 5 SAME TO THE INCOME TAX DEPARTMENT WITHIN THREE MONT HS FROM THE DATE OF THE RECEIPT OF THE COPY OF THE IMPUGNED ORDER. IN THE IMPUGNED ORDER, THE HIGH COURT ALSO OBSERVED THAT IN THE EVENT OF COMPLIANCE OF TH E SAID DIRECTION, THE ONGC SHALL NOT BE TREATED AS AN ASSESSEE IN DEFAULT. BY SUBSEQ UENT ORDERS, THE HIGH COURT APPEARS TO HAVE EXTENDED THE TIME BY ANOTHER THREE MONTHS FOR COMPLIAN CE OF THE SAID DIRECTIONS. WITHIN THE PERIOD OF THREE MON THS AND WITHIN THE EXTENDED PERIOD OF THREE MONTHS THEREAFTER, HOWEVER, THE ONG C DID NOT COMPLY WITH THE SAID DIRECTIONS OF THE HIGH COURT. THE CONSEQUENCE WOULD , THEREFORE, BE THAT THE ONGC SHALL BE DEEMED TO BE IN DEFAULT WITH EFFECT FROM 1 6 TH MARCH, 2010, SOON AFTER THE WRIT PETITION WAS DISMISSED AND THE INTERIM ORDER W AS VACATED ON 15 TH MARCH, 2010 AND IT IS THUS LIABLE TO PAY INTEREST WITH EFFECT F ROM 16 TH MARCH, 2010 IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (1A) OF SECTION 2 01 OF THE ACT AS AN ASSESSEE DEEMED TO BE IN DEFAULT. REGARDING THE SUBMISSION MADE BY MR. ANUPAM LAL DAS , LEARNED COUNSEL, THAT THE ASSESSEE IS ENTITLED TO CLAIM THAT THE VAL UE OF THE ACCOMMODATION PROVIDED TO THE ASSESSEE WAS NOT REALLY A 'CONCESSION' AND N O OPPORTUNITY WHATSOEVER WAS GIVEN TO THE ASSESSEE TO ESTABLISH THIS CLAIM BEFOR E THE ASSESSING OFFICER, IN OUR CONSIDERED OPINION, THIS STAND CAN ONLY BE TAKEN BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IN HIS OWN ASSESSMENT PROCEEDINGS AND NOT BY THE EMPLOYER. THIS STAND ALSO CANNOT BE TAKEN BY THE ASSOCIATION OF SC IENTIFIC & TECHNICAL OFFICERS OF THE ONGC (THE WRIT PETITIONER AND THE PETITIONER IN THE SPECIAL LEAVE PETITIONS) AS THE SAID ASSOCIATION IS NOT AN ASSESSEE UNDER THE A CT. THIS IS BECAUSE THE SCHEME OF THE ACT PROVIDES THAT AFTER THE EMPLOYER DEDUCTS FR OM THE SALARY OF THE EMPLOYEE THE TAX AND PAYS THE SAME TO THE CENTRAL GOVERNMENT, A TAX DEDUCTION CERTIFICATE IS FURNISHED TO THE EMPLOYEE AND IT IS FOR THE EMPLOYE E TO CLAIM BEFORE THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS AND GET A D ETERMINATION DONE AND IN CASE HE SUCCEEDS BEFORE THE ASSESSING OFFICER, HE WILL B E ENTITLED TO REFUND OUT OF THE AMOUNT OF TAX DEDUCTED AT SOURCE BY THE EMPLOYER. W E, THEREFORE, LEAVE IT OPEN TO THE EMPLOYEES CONCERNED OF THE ONGC TO MAKE THEIR R ESPECTIVE CLAIMS BEFORE THE ASSESSING OFFICER FOR THE DEDUCTION MADE BY THE ONG C ON 10% OF THE SALARY TOWARDS 'PERQUISITE IN RESPECT OF ANY CONCESSION GIVEN TO THE ASSESSEE. WITH THE AFORESAID OBSERVATIONS, THESE SPECIAL LEAV E PETITIONS STAND DISPOSED OF. THE RESPONDENT SHALL GRANT TO THE ONGC TIME UPT O 28 TH FEBRUARY, 2013 TO MAKE THE PAYMENT OF THE TAX ON 10% OF THE SALARY AND INT EREST CALCULATED WITH EFFECT FROM 16 TH NOVEMBER,2010. IN VIEW OF THE OBSERVATION OF HONBLE APEX COURT IN THE CONCLUDING PARA (REPRODUCED HEREINABOVE), WHEREIN THE DATE FOR CALC ULATION OF INTEREST IS STATED TO BE 16 TH NOVEMBER, 2010, THE MENTIONING OF DATE AS 16.03.20 10 IN THE IMPUGNED COMBINED ORDER, THEREFORE APPEARS TO BE A TYPOGRAPHICAL ERROR WHICH NEEDS TO BE RECTIFIED. IN SUCH A SITUATION A ND IN VIEW OF THE ORDER OF MA NOS. 77 TO 89/AHD/13 A.YS. 97-98 & 09-10 [OIL & NATURAL GAS CORP. LTD. VS. ACIT(TDS)] PAGE 6 HONBLE APEX COURT IN CONCLUDING PARA AS CITED HERE INABOVE, WE MODIFY OUR IMPUGNED ORDER BY HOLDING THAT IN PARA 8 OF PAGE 6 OF THE CONSOLIDATED ORDER DATED 22.03.2013, THE REFERENCE TO DATE BE READ AS 16 TH NOVEMBER, 2010 INSTEAD OF 16 TH MARCH, 2010. 5. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATI ONS FILED BY ASSESSEE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22 /03/2 016 SD/- SD/- ( SHAILENDRA KUMAR YADAV ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTA NT MEMBER AHMEDABAD: DATED 22 /03/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- *+ , -. / APPELLANT /+ 01-. / RESPONDENT 2+ 345 6 / CONCERNED CIT 4+ 6- , / CIT (A) 9+ :; < 045 , 45) = 3 / DR, ITAT, AHMEDABAD >+ < ?@ A B / GUARD FILE. BY ORDER/ ,/= ,$ , 45) = 3