M/s. Udaipur Bonded Ware House, Silchar V. Income Tax Officer, Ward-TDS, Silchar

SA 10/GTY/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0533 (ITAT-GUWAHATI)
• Duration Of Justice: 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D K BISWAS
• Keywords: Application of stay; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI E COURT AT KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S.S. VISWANETHRA RAVI, JM] S.A. NOS. 07 - 12/GAU/2019 (ARISING OUT OF ITA NOS. 08 - 19/GAU/2017) ASSESSMENT YEARS: 2008-09 TO 2013-14 M/S. UNION BONDED WARE HOUSE...................................APPELLANT MEHERPUR, SILCHAR 788 015. [PAN : AABFU 4225 A] ITO, WARD TDS SILCHAR.....................................RESPONDENT SILCHAR 788 015. APPEARANCES BY: SHRI D.K. BISWAS, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SANDIP SENGUPTA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 25, 2019 DATE OF PRONOUNCING THE ORDER : MARCH 25, 2019 O R D E R PER P.M. JAGTAP, VICE PRESIDENT BY THESE STAY APPLICATIONS, THE ASSESSEE IS SEEKING STAY OF OUTSTANDING DEMAND OF RS.17,70,119/-, RS.15,46,239/-, RS.14,63,805/-, RS. 19,80,665/-, RS. 19,49,209/- AND RS. 14,97,740/- FOR A.Y. 2008-09, 2009-10, 2010-11, 2011-12, 2012-13 AND 2013-14 RESPECTIVELY. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED OUTSTANDING DEMAND HAS ARISEN AS A RESULT OF ORDERS PASSED BY THE AO U/S 201(1)/201(1A)/206C OF THE ACT FOR SIX YEARS UNDER CONSIDERATION TREATING THE ASSESSEE AS IN DEFAULT FOR ITS ALLEGED FAILURE TO COLLECT THE TAX AT SOURCE. HE CONTENDS THAT THE ASSESSEE ACTUALLY WAS NOT RESPONSIBLE TO COLLECT THE TAX U/S 206C IN THE FACTS AND CIRCUMSTANCES INVOLVED IN ITS CASE AND KEEPING IN VIEW THAT THE PROCEEDINGS WERE INITIATED AFTER A LONG GAP, THE ORDERS PASSED 2 S.A. NOS. 07 -12/GAU/2019 (A.Y. 2008--09 TO 2013-14) M/S. UNION BONDED WARE HOUSE BY THE AO ARE CHALLENGED EVEN ON THE GROUND OF LIMITATION. HE CONTENDS THAT THE ASSESSEE THUS HAS A GOOD PRIMA FACIE CASE TO SUCCEED ON MERITS IN THE APPEALS FILED BEFORE THE TRIBUNAL. HE ALSO SUBMITS THAT THE DEPARTMENT HAS ALREADY ATTACHED THE BANK ACCOUNTS OF THE ASSESSEE AND RECOVERED A SUM OF RS. 9,20,000/- AGAINST THE OUTSTANDING DEMAND WHICH IS AFFECTING THE DAY TO DAY BUSINESS OF THE ASSESSEE. HE SUBMITS THAT THE CASE OF THE ASSESSEE THUS IS A FIT CASE TO GRANT THE STAY OF OUTSTANDING DEMAND. 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITS THAT OUT OF THE TOTAL DEMAND OF MORE THAN 1 CRORES, NO PAYMENT WHATSOEVER WAS MADE BY THE ASSESSEE AND A SUM OF RS. 9,20,000/- WAS RECOVERED BY THE DEPARTMENT BY ATTACHING THE BANK ACCOUNTS OF THE ASSESSEE. HE SUBMITS THAT THERE IS A CLEAR FAILURE OF THE ASSESSEE TO COMPLY WITH THE REQUIREMENTS OF SECTION 206C OF THE ACT AND THERE BEING NO TIME LIMIT PRESCRIBED IN THE STATUTE, ORDERS PASSED BY THE AO TREATING THE ASSESSEE AS IN DEFAULT CANNOT BE SAID TO BE BARRED BY LIMITATION. HE SUBMITS THAT THE LD. CIT(A) HAS ALREADY CONSIDERED ALL THESE ASPECTS AND SINCE HE HAS UPHELD THE ORDERS PASSED BY THE AO U/S 201/201(1A)/206C, IT CANNOT BE SAID THAT THE ASSESSEE HAS A GOOD PRIMA FACIE CASE ON MERIT. HE ALSO SUBMITS THAT NOTHING HAS BEEN BROUGHT ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE TO SHOW THAT THE FINANCIAL POSITION OF THE ASSESSEE IS NOT GOOD. HE HAS THUS STRONGLY OPPOSED THESE STAY APPLICATIONS FILED BY THE ASSESSEE. 4. AFTER CONSIDERING THE SUBMISSIONS MADE BY BOTH THE SIDES AND HAVING REGARD TO ALL THE FACTS OF THE CASE WHICH ARE RELEVANT TO ASCERTAIN THE BALANCE OF CONVENIENCE SUCH AS PRIMA FACIE CASE OF THE ASSESSEE ON MERIT, FINANCIAL 3 S.A. NOS. 07 -12/GAU/2019 (A.Y. 2008--09 TO 2013-14) M/S. UNION BONDED WARE HOUSE POSITION OF THE ASSESSEE ETC., WE ARE OF THE VIEW THAT THE STAY OF OUTSTANDING DEMAND AS SOUGHT BY THE ASSESSEE VIDE THE PRESENT STAY APPLICATIONS CAN BE GRANTED SUBJECT TO A PAYMENT OF RS. 20 LACS BY THE ASSESSEE AGAINST THE OUTSTANDING DEMAND. WE ACCORDINGLY DIRECT THE ASSESSEE TO DEPOSIT A SUM OF RS. 20 LACS AGAINST THE OUTSTANDING DEMAND FOR ALL THE SIX YEARS UNDER CONSIDERATION TAKEN TOGETHER BY 28 TH MARACH, 2019. SUBJECT TO THE SAID PAYMENT, THE BALANCE OUTSTANDING DEMAND IS DIRECTED TO BE KEPT IN ABEYANCE FOR A PERIOD OF 6 MONTHS OR TILL THE DISPOSAL OF THE APPEAL OF THE ASSESSEE BY THE TRIBUNAL WHICHEVER IS EARLIER. THE REGISTRY IS DIRECTED TO FIX THE SAID APPEALS FOR HEARING OUT OF TURN BEFORE THE NEXT TOURING BENCH / E- COURT. IN ORDER TO ENABLE THE ASSESSEE TO DEPOSIT A SUM OF RS. 20 LACS AGAINST THE OUTSTANDING DEMAND AS DIRECTED BY US, THE DEPARTMENT IS DIRECTED TO REVOKE THE ATTACHMENT OF THE BANK ACCOUNTS OF THE ASSESSEE IMMEDIATELY. 5. IN THE RESULT, ALL THE STAY APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MARCH, 2019 SD/- SD/- (S.S.VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 25/03/2019 BISWAJIT, SR. PS 4 S.A. NOS. 07 -12/GAU/2019 (A.Y. 2008--09 TO 2013-14) M/S. UNION BONDED WARE HOUSE COPY OF ORDER FORWARDED TO: 1. M/S. UNION BONDED WARE HOUSE, MEHERPUR, SILCHAR 788 015. 2. ITO, WARD TDS, P.W.D. ROAD, SILCHAR 788 015. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, GAUHATI BENCHES