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Income Tax Appellate Tribunal, MUMBAI BENCH “F” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
This appeal by the assessee is preferred against order dated 07.02.2023 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2020-21, raising following grounds:
1. On the facts and circumstances of the case and in law the Ld. Commissioner of Income-tax (Appeals ). NFAC, Income-tax Department, New Delhi herein after referred to as Ld. CIT (A) erred in dismissing the appeal filed on the ground that TDS on payment to Junior artists are covered by the provisions of Section 194C and not 194J
Vishesh Films Pvt. Ltd. ITA No. of the Income of the Income-tax Act, 1961(Act) by treating the same as tax Act, 1961(Act) by treating the same as infructuous and not on merits. infructuous and not on merits. 2. (a) On the facts and circumstances of the case and in 2. (a) On the facts and circumstances of the case and in 2. (a) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised law the Ld CIT (A) erred in conforming the demand raised law the Ld CIT (A) erred in conforming the demand raised by the Ld AO amounting Rs. 1,55,506/ by the Ld AO amounting Rs. 1,55,506/- under section under section 201(1) of the Act being difference between TDS originally 201(1) of the Act being difference between TDS originally 201(1) of the Act being difference between TDS originally computed by the appellant under section 194C of the Act computed by the appellant under section 194C of the Act computed by the appellant under section 194C of the Act and as calculated by the Ld AO under section 194J of the and as calculated by the Ld AO under section 194J of the and as calculated by the Ld AO under section 194J of the Act without considering the meri Act without considering the merits of the case. (b) On the facts and circumstances of the case and in law (b) On the facts and circumstances of the case and in law (b) On the facts and circumstances of the case and in law the Ld CIT (A) erred in conforming the demand raised by the Ld CIT (A) erred in conforming the demand raised by the Ld CIT (A) erred in conforming the demand raised by the Ld AO amounting Rs. 21,391/ the Ld AO amounting Rs. 21,391/- under section 201(1) under section 201(1) of the Act without considering the merits of the case. of the Act without considering the merits of the case. of the Act without considering the merits of the case. (c) That on the f (c) That on the facts and circumstances of the case the acts and circumstances of the case the Appellant cannot be treated as an Appellant cannot be treated as an "assessee in default" under section 201(1) of the Act "assessee in default" under section 201(1) of the Act "assessee in default" under section 201(1) of the Act where the payees have admitted the income and paid the where the payees have admitted the income and paid the where the payees have admitted the income and paid the tax due in their return of income. tax due in their return of income. (d) Alternately, the Ld (d) Alternately, the Ld CIT (A) be directed to dispose of the CIT (A) be directed to dispose of the appeal on merit and pass the order on the grounds raised appeal on merit and pass the order on the grounds raised appeal on merit and pass the order on the grounds raised by the Appellant. by the Appellant.
3. That the order is bad in law and on the facts.
3. That the order is bad in law and on the facts.
2. Briefly stated facts of the case are that the Ld. CIT(A) Briefly stated facts of the case are that the Ld. CIT(A) Briefly stated facts of the case are that the Ld. CIT(A) dismissed the appeal of the asse dismissed the appeal of the assessee observing as under: ssee observing as under:
4 From perusal of the Form No 35 submitted, the issue for From perusal of the Form No 35 submitted, the issue for From perusal of the Form No 35 submitted, the issue for consideration in appeal is in respect of the order us 201 consideration in appeal is in respect of the order us 201 consideration in appeal is in respect of the order us 201 of the I.T. Act requiring the TDS amounting Rs. Act requiring the TDS amounting Rs. 1,55,506/- being the difference between being the difference between TDS originally TDS originally computed by computed by the appellant under section 194C of the Act the appellant under section 194C of the Act and as calculated by him under section 194J of the Act. and as calculated by him under section 194J of the Act. and as calculated by him under section 194J of the Act. As per form No 35, appellant has filed appeal against the As per form No 35, appellant has filed appeal against the As per form No 35, appellant has filed appeal against the order u/s 201 passed on 02.11.2020 for AY 2020 order u/s 201 passed on 02.11.2020 for AY 2020 order u/s 201 passed on 02.11.2020 for AY 2020-21. However, appellant has not submitted the copy o However, appellant has not submitted the copy o However, appellant has not submitted the copy of order. Appellant has submitted the copy order for AY 2019 Appellant has submitted the copy order for AY 2019 Appellant has submitted the copy order for AY 2019-20
Vishesh Films Pvt. Ltd. ITA No. for which appeal has already been decided. Accordingly, for which appeal has already been decided. Accordingly, for which appeal has already been decided. Accordingly, appellant was requested to submit copy of the order for appellant was requested to submit copy of the order for appellant was requested to submit copy of the order for AY 2020-21. vide notices dated on 21.12.2022 and 21. vide notices dated on 21.12.2022 and 21. vide notices dated on 21.12.2022 and 03.01.2023. In response to notice dated 21.12.2022 e dated 21.12.2022 appellant in its reply dated 03.01.2023 requested for appellant in its reply dated 03.01.2023 requested for appellant in its reply dated 03.01.2023 requested for adjournment up to 05.01.2023. Accordingly, a notice adjournment up to 05.01.2023. Accordingly, a notice adjournment up to 05.01.2023. Accordingly, a notice dated 17.01.2023 was issued to the appellant to submit dated 17.01.2023 was issued to the appellant to submit dated 17.01.2023 was issued to the appellant to submit the copy of order. However, appellant neither submitted the copy of order. However, appellant neither submitted the copy of order. However, appellant neither submitted the copy of order no the copy of order nor requested any adjournment. 4.1 Under such circumstance, where appellant has not Under such circumstance, where appellant has not Under such circumstance, where appellant has not submitted the copy of order us. 201 of the Act for AY the copy of order us. 201 of the Act for AY the copy of order us. 201 of the Act for AY 2020-21 against which it has preferred to contest in 21 against which it has preferred to contest in 21 against which it has preferred to contest in appeal, it is not possible for this office to pass any order appeal, it is not possible for this office to pass any order appeal, it is not possible for this office to pass any order on merits. In absence of proper order against which its. In absence of proper order against which its. In absence of proper order against which appeal filed, it is not possible to adjudicate the matter. appeal filed, it is not possible to adjudicate the matter. appeal filed, it is not possible to adjudicate the matter. Accordingly, the appeal is treated as infructuous and is Accordingly, the appeal is treated as infructuous and is Accordingly, the appeal is treated as infructuous and is hereby dismissed on account of want of order appeal dismissed on account of want of order appeal dismissed on account of want of order appeal against.”
We find that the We find that the assessee filed appeal to the ld CIT(A) against led appeal to the ld CIT(A) against order u/s 201 of the income of the income-tax Act, 1961 ( in short the Act ) tax Act, 1961 ( in short the Act ) passed by the Assessing Officer holding the assessee in default for passed by the Assessing Officer holding the assessee in default for passed by the Assessing Officer holding the assessee in default for deducting tax at source at rate lower than prescribed, but by deducting tax at source at rate lower than prescribed, but by deducting tax at source at rate lower than prescribed, but by mistake filed the order u/ mistake filed the order u/s 201 of the Act for earlier year along with s 201 of the Act for earlier year along with the appeal papers. The Ld the appeal papers. The Ld. CIT(A) dismissed the appeal of the . CIT(A) dismissed the appeal of the assessee mainly for the reason that order u/s 201 assessee mainly for the reason that order u/s 201 of the Act of the Act for the assessment year under consideration was not filed by the assessee. assessment year under consideration was not filed by the assessee. assessment year under consideration was not filed by the assessee. In our opinion, the Ld. CIT(A) could have n, the Ld. CIT(A) could have accessed accessed the said order u/s 201 of the Act for the year under consideration from the record u/s 201 of the Act for the year under consideration from the record u/s 201 of the Act for the year under consideration from the record of the Assessing Officer also rather than dismissing the appeal on of the Assessing Officer also rather than dismissing the appeal on of the Assessing Officer also rather than dismissing the appeal on this ground. In the interest of the substantial justice, we feel it In the interest of the substantial justice, we feel it In the interest of the substantial justice, we feel it
Vishesh Films Pvt. Ltd. ITA No. appropriate to restore the issue back to the file of the Ld. CIT(A) in appropriate to restore the issue back to the file of the Ld. CIT(A) in appropriate to restore the issue back to the file of the Ld. CIT(A) in view of copy of the order u/s 201 of the Act filed before us by the view of copy of the order u/s 201 of the Act filed before us by the view of copy of the order u/s 201 of the Act filed before us by the assessee which is part of the appeal folder. In the circumstances, assessee which is part of the appeal folder. In the circumstances, assessee which is part of the appeal folder. In the circumstances, the appeal is restored back to the file of the Ld. restored back to the file of the Ld. CIT(A) for deciding CIT(A) for deciding afresh. The grounds raised by the assessee are allowed for afresh. The grounds raised by the assessee are allowed for afresh. The grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for In the result, the appeal filed by the assessee is allowed for statistical purposes. statistical purposes.