M/S. UDAIPUR BONDED WARE HOUSE,SILCHAR vs. INCOME TAX OFFICER, WARD-TDS, SILCHAR

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ITA 12/GTY/2017Status: DisposedITAT Guwahati03 July 2019AY 2012-133 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the issue to the Assessing Officer for factual verification, acknowledging that if the buyers had already paid the tax, the assessee could not be held liable as an assessee in default. The decision was based on the principle that the liability is vicarious.

What were the facts?

The assessee was treated as an assessee in default for failing to collect Tax Collected at Source (TCS), including excise duty/VAT, from its buyers. The assessee claimed that while it did not collect the excise duty/VAT, the buyers had already paid it to the government.

What were the issues?

Whether the assessee can be held liable as an assessee in default for non-collection of TCS if the tax has already been paid by the ultimate payer. The need for factual verification of such payments.

Which sections of the Income-tax Act were involved?

Section 201(1),Section 201(1A),Section 206(C),Section 206(6A)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

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Income Tax Appellate Tribunal, GUWAHATI BENCH, GUWAHATI

Before: Shri S.S.Godara & Dr. A.L. Saini

आदेश/O R D E R PER BENCH:-

The assessee has filed the instant six appeal(s) for assessment year(s) 2008-09 to 2013-14 against the Commissioner of Income Tax (Appeals)- Shillong’s separate orders all dated 17.11.2016 in case No.s SIL-147- 152/2015-16; respectively affirming Assessing Officer’s action raising demands thereby treating it as an assessee in default for collection of TCS in proceedings u/s 201(1), r.w.s. 201(1A) r.w.s. 206(C) of the Income Tax Act, 1961; in short ‘the Act’.

2.

We have heard both the parties. Case file(s) perused. It transpires during the course of hearing that both the lower authorities’ have held

ITA No.08-13/Gau/2017 A.Ys 2008-09 to 2013-14 Page 2 M/s Union Bonded Ware House Vs. ITO TDS Silchar assessee to be the assessee in default for the reason that it failed to collect of TDS including excise duty / VAT from its payees. We are informed that this assessee is engaged in sale-purchase Indian made foreign liquor “IMFL” and other allied distilled goods from manufacturer/distributors. Mr.Biswas states at the bar that although the assessee has in fact not collected the excise duty/VAT component in issue from its purchasing party, he has got evidence to prove that the said parties have already credited / paid the same to the government’s account. He therefore raises this new plea during the course of hearing before us.

3.

Faced with this situation, Mr. Loyi submits that the assessee has raised the instant new plea which requires factual verification from the Assessing Officer’s end. We take into account all these intervening developments to affirm both the lower authorities’ action in principle and restore the instant issue back to the Assessing Officer for necessary factual verification as prescribed u/s 206(6A) proviso of the Act. We make it clear that hon’ble apex court’s landmark decision in the case of Hindustan Coco Cola Beverages Pvt Ltd. (2007) 293 ITR 226 (SC) has settled the law that the impugned liability is vicarious in nature wherein the deductor / collector assessee had to perform his duty provided in the law on behalf of other assessee in other words. Their lordship concluded that in case the other party has already paid or credited the tax sum in issue, the deductor / collector assessee cannot be held to be the assessee in default. We adopt the very analogy herein as well to accept assessee’s sole substantive grievance canvassed in the instant six appeals for statistical purposes. We leave it open for the Assessing Officer to conduct the foregoing factual verification exercise. The assessee is directed to place on record all necessary evidence envisaged u/s 206(C) (6A) proviso of the Act before the Assessing Officer within three effective opportunities failing which our instant remand directions shall stand vacated.

ITA No.08-13/Gau/2017 A.Ys 2008-09 to 2013-14 Page 3 M/s Union Bonded Ware House Vs. ITO TDS Silchar 4. The assessee’s instant six appeals are allowed for statistical purposes in above terms. Order pronounced in the open court 03/07/2019 Sd/- Sd/- (लेखा   �è�) (Û�ȡǓ���  �è�) ( A.L.Saini) (S.S.Godara) (Accountant Member) (Judicial Member) Guwahati, *Dkp Ǒ��ȡȲ�Ȭ- 03/07/2019 गू�ȡ¡ ȡ�Ȥ । आदेश�ȧ ĤǓ�ͧ�ͪ�\ Ē ȯͪ��/ Copy of Order Forwarded to:- 1. आवेदक/Assessee-M/s Union Bonded Ware House, Meherpur, Silchar, Dist. Cachar- 2. �ȡ�è�/ Revenue-ITO TDS, Aayakar Bhawana, PWD Road, Silschar-788001 3.   Ȳ�Ȳͬ���] ����] �ǕÈ��Ǚ�ȡ¡ ȡ�Ȥ/ Concerned CIT Guwahati 4. ] ����] �ǕÈ�- अपील/ CIT (A) Guwahati 5. ͪ��ȡ�Ȣ��ĤǓ�Ǔ�ͬ�, ] ����\ �Ȣ�ȣ��\ ͬ����, गू�ȡ¡ ȡ�Ȥ��Ȳ��Ȣ�/ DR, ITAT, Guwahati 6. �ȡ�[��ȡ^�/ Guard file. By order/आदेश से, /True Copy/ Sr. Private Secretary (on tour) ] ����\ �Ȣ�ȣ��\ ͬ����, गू�ȡ¡ ȡ�Ȥ ।

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