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Income Tax Appellate Tribunal, DELHI BENCH ‘F’ : NEW DELHI
Before: SHRI O.P.KANT & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER Since common question of facts and law is involved in all the aforesaid appeals, the same are taken up together for disposal by way of composite order to avoid repetition of discussion.
Appellant, M/s. PAN Realtors (P) Ltd., Noida (UP)
(hereinafter referred to as ‘assessee’) by filing the aforesaid appeals sought to set aside the impugned orders dated 27.02.2017 passed by Ld. CIT(A) for A.Y. 2010-11, 2011-12, 2012-13 & 2013-14 on the identical grounds, except difference in figures of demand, inter alia that :-
ITA No. 3119/Del/2017, A.Y. 2010-11 “1. The The learned CIT(A) has erred on facts and in law in confirming the order of AO, TDS Ward 51(1) New Delhi u/s 201 (1)/201 (1 A) of the IT Act, which factually is erroneous, unlawful, arbitrary, without jurisdiction and contrary to the facts and circumstances of the case.
2. The learned AO has erred in invoking the provisions of S.1941 of the IT Act arbitrarily, unlawfully and erroneously and the Id. CIT (A) has eried on facts and in law in upholding the same.
The Id. AO has erred on facts and in law in holding the assesse in default u/s 201 (1 )/201 (1 A) and raising the unlawful and erroneous demand of tax (TDS) which was neither deductible nor deducted that too without going through the facts, and cogent evidences and submissions and the Id. CITA has erred in upholding the same.
The order of the Id. AO is against the principles of natural justice and the IdCIT(A)has erred in upholding the same.
5. The learned CITA has erred in law in failing to decide the case on merits of the case.
6. The ld. CIT(A) has erred in law and on facts in sustaining the demand of Rs. 22,94,962/- , 33,18,376/-, 19, 96,461/- & 18,21,988/- (Including interest) in A.Y. 2010- 11, 2011-12, 2012-13 & 2013-14 respectively on account of non deduction of TDS on lease rent paid to new Okhla Industrial Development Authority (Noida).
PRAYER :
1.
The order of the A.O. as upheld by the learned GJT-A be declared as null and void ab-initio, demand made by AO and upheld by Ld. CITA be deleted, and the facts of no liability to deduct and pay TDS on lease rent paid to New Okhla Industrial Development Authority (Noida) be accepted as correct as per law; or such other order as Your Honors may deem fit under the circumstances of the case be passed. The appellant craves leave and sanction of the Hon’ble ITAT to file additional evidence, if so required for proper prosecution of the case, based on facts and circumstances, which has not been or could not be educed or filed before lower authorities either because proper and sufficient opportunity was not provided or because it was not solicited or its need was not appreciated.
2. The appellant craves leave to and permission of the Hon’ble ITAT to add to or alter any of the grounds of appeal at any time up to the final decision of the appeal.”
4. Assessee by filing application under rule 29 of the ITAT Rules, 1962 (Rules) sought to bring on record “certificate issued by Chartered Accountant (CA)’’ of Noida Authorities on the ground that the same were not issued despite numerous request during assessment as well as appellate proceedings and same are necessary for deciding the issue in controversy. Since, CA certificate sought to be brought on record by the assessee is necessary to work out the payment of lease rent paid by the assessee to Noida Authorities by deducting tax at source (TDS), the issue in controversy cannot be decided once for all, except with certificate issued by the CA.
Consequently, applications filed by the assessee for leading additional evidence are allowed without prejudice to the merits of these cases.
Briefly stated the facts necessary for adjudication of the controversy at hand are: the Deductor assessee company is engaged in the business of real estate construction for residential flats.
During the survey proceedings qua compliance of provisions of TDS, it has come on record that TDS was not deducted in respect of interest / lease rent paid by the assessee to the Noida Authority, UP.
AO further noticed from the details of TDS statement filed by the assessee for A.Y. 2010-11, 2011-12, 2012-13 & 2013-14 that it has not filed quarterly statement within prescribed period u/s 200(3) of the Act but filed the same with the delay of 25 days to 104 days.
AO reached the conclusion that since the assessee has failed to deduct TDS u/s 194 -1 of the Act on lease rent paid to Noida, it is treated as an assessee-in-default u/s 201(1) of the Act in respect of TDS of Rs. 22,94,962/-, 33,18,376/-, 19,96,461/- & 18,21,988/- (Including interest) in A.Y. 2010-11, 2011-12, 2012-13 & 2013-14 respectively and consequently demand has been raised.
Assessee carried the matter before Ld. CIT(A) by way of filing appeals who have partly allowed the appeals. Feeling aggrieved assessee deductor has come up before the Tribunal by way of filing the aforesaid appeals.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
Ld. CIT(A) partly allowed the appeals filed by the assessee by returning following findings :-
4.11 The alternate claim of the appellant has merit and in view of the Hon’ble Delhi High Court’s decision, the appellant is not considered an assessee-in-default. However, it does not absolve the appellant from the interest liability u/s 201(1A), even if it is not considered to be an assessee-in-default. Hence, in view of the provisions of the First Proviso to section 201(1), the Assessing Officer is directed to give opportunity to the appellant to produce the Certificate in Form 26A as per Rule and modify the demand after ascertaining that the deductee has taken into account such sum for computing its income. The AO is further directed to re-calculate the interest u/s 201(1A) from the date on which tax was deductible till date of filing of Return by the deductee. This claim of the appellant is therefore partly allowed.
Bare perusal of the aforesaid findings returned by Ld.
CIT(A) shows that though assessee has not been considered as assessee-in-default but was given part relief sought for by directing the AO to recalculate the interest u/s 201(1A) of the Act on furnishing certificate in the Form of 26A, but since assessee has failed to furnish the certificate, AO has given the appeal effects by disallowing the same amount again.
Now, by moving application under Rules 29 of the ITAT Rules, 1962, assessee sought to bring on record “certificate of CA” of the Noida Authorities. Since, controversy at hand cannot be decided finally and completely except by examining the certificate issued by the CA, the same are entertained in additional evidence, which need to be examined/ notified by the AO. So, case is remitted back to the AO to verify the same and decide the issue afresh after providing opportunity of being heard to the assessee.
Consequently, aforesaid appeals filed by the assessee are allowed for statistical purposes. Order pronounced in open court on 13th October, 2021.