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Income Tax Appellate Tribunal, JODHPUR BENCH, JODHPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM
This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 26.08.2022 [here in after (NFAC)] for assessment year 2014-15 which in turn arise from the order dated 16.03.2021 passed under section 201(1)/201(1A) read with sections 194A of the Income Tax Act, by the ITO (TDS), Udaipur.
Khojema Ali Bohra 2. The assessee has marched this appeal on the following grounds:-
“1. That on the facts and in the circumstances of the case, the ld. CIT(A), NFAC, Delhi without going into the entirety of the facts and also in contradiction of the binding precedents of the Hon’ble Jurisdictional ITAT in the matter of M/s Oxcia Enterprises Private Limited vs. Deputy Commissioner of Income-tax, Circle-TDS, Udaipur in besides others has grossly erred in sustaining the demand of tax of Rs. 70200/- u/s 201(1) in view of section 194-IA r/w section 206AA of the Act.
That on the facts and in the circumstances of the case, the ld. CIT(A), NFAC, Delhi has also erred in charging interest of Rs. 65988/- u/s 201(1A) of the Act without going into factual matrix of the case.
That the petitioner may kindly be permitted to raise any additional or alternative grounds at or before the time of hearing.
The petitioner prays for justice & relief.”
The fact as culled out from the records is that the deductor assessee is an individual who had purchased an immovable property of the value above Rs. 50 lakh i.e. Rs. 70,20,000/- in the F.Y 2013-14.
As per provisions of section 1941A of the Income Tax Act, 1961 it is mandatory to deduct tax at source ordinarily @ 1% of the sale consideration paid and 20% in case of sellers not disclosed PAN to the purchaser. Accordingly, in this case the then ITO, TDS, Udaipur vide letter no. 247 dated 28.06.2017 has requested to the deductor assessee to submit the following details by 07.07.2017. But within stipulated time, the assessee has not submitted any details or any Khojema Ali Bohra kind of evidences. Therefore, again a reminder letter no. 1359 dated 28.11.2018 and 945 dated 06.09.2019, issued by the then ITO, TDS, Udaipur and requested for doing the needful but no compliance was made. Since, there is no response from the assessee and the it is noted by the AO, TDS that the assessee entered into an immovable property transaction of Rs. 70,20,000 which is more then the limit prescribed u/s. 194IA of the Act assessee has violated the provision of the section 194IA of the Act and based on that observation the assessee was considered as assessee in default and demand of TDS of Rs. 70,200/- and interest on it at Rs. 65,988/- was determined as payable.
4. Aggrieved from the order of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A)/NFAC. A propose to the grounds so raised the relevant finding of the ld. CIT(A)/NFAC is reiterated here in below:
“4. Decisions:- I have carefully considered the facts of the case. As per the findings of the AO in the case, it is noticed that as contended by the appellant is default in TDS u/s 201(1)/201(1A) r.w.s 194 IA of the I.T. Act, 1961 for such default deductor assessee is liable for the payment of TDS for the assessment year 2014-15. After, intensive study of the case, the contentions of the appellant have been carefully examined. This order is being passed due to lack of concrete evidence and full facts of the case. All the grounds of appeal are dismissed.”
Khojema Ali Bohra 5. The ld. AR appearing on behalf of the assessee that the order of the AO TDS is ex-party and even the ld. CIT(A) has noted that the assessee filed the submission but the same was not considered or discussed while passing the order and he has simply reproduced the contention of the ld. AO TDS. So far as the merits of the case the ld. AR of the assessee submitted that value of property transaction individually below the 50 lac limit as per 194IA the assessee alone cannot be termed as assessee and default and if given a chance this fact be placed on record before the assessing officer the assessee will get the justice in the matter.
The ld DR is heard who has relied on the findings of the lower authorities did not object to the prayer of the assessee as the matter is to be decided on merit by the ld. AO.
We have heard the rival contentions and perused the material placed on record. It is not under dispute that order of the AO TDS is ex-party. Even before the ld. CIT(A) the assessee made the submission but the bench noted that the ld.CIT(A) neither deal with the contention of the assessee nor passed a speaking order so as to deal
Khojema Ali Bohra with the contention of the assessee. We find merit in the arguments of the ld. AR of the assessee that if given a chance the assessee would like to demonstrate as to whether based on the facts assessee in fact liable for TDS u/s. 194IA of the Act or not if the property is jointly owned. Based on the contentions and on going through the orders of the lower authorities we find force in the arguments advanced by the ld. AR of the assessee and therefore, we are of the considered view that the assessing officer should hear the assessee’s submission on merits after affording proper opportunity of being heard and pass speaking order in the matter and therefore, the matter is set a side to the file of the learned assessing officer(TDS). At the same time assessee is directed to represent and present all the facts before the assessing officer and should not ask for the adjournment on frivols grounds. At this stage we remand back the issue without commenting upon the merits of the case and the ld. AO is directed to complete the assessment in accordance with the law.
In the result, appeal of the assessee is allowed for statistical purpose.
Khojema Ali Bohra Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board.