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Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH, AHMEDABAD
Before: SHRI PRADIP KUMAR KEDIA
PER PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER
The captioned appeal has been filed at the instance of the Revenue against the order of CIT(A) dated 25.10.2016 arising in order passed under section 206C(1) read with section 206C(7) of the Income Tax Act, 1961 concerning A.Y. 2008-09.
In the captioned appeal, the Revenue has challenged the action of the CIT(A) in deleting the demand raised under section 206C(1) read with section 206C(7) of the Act for non/short deduction of tax collection at source (TCS) of Rs.19,88,645/- on sales of scrap.
Briefly stated, the assessee is engaged in the business of trading of scrap. From the records available with the Income Tax Department, it was noticed by the Assessing Officer that the assessee has failed to collect TCS from certain buyers of goods in the nature of scrap during the F.Y. 2007-08 relevant to A.Y. 2008-09. The Assessing Officer, after taking into account various submissions of the assessee in this regard, came to the conclusion that the assessee has committed default under
ITA No.3477/Ahd/2016 A.Y. 2008-09 Page 2 of 7 section 206C(6A) read with section 206C(7) of the Act and found non/short collection of TCS to the extent of Rs.19,88,645/- and interest thereon under section 206C(7) quantified at Rs.19,09,099/-. The Assessing Officer accordingly raised demand of Rs.38,97,744/- towards aforesaid default.
Aggrieved, the assessee preferred appeal before the CIT(A). Before the CIT(A), the assessee alleged that the assessee has neither collected/obtained the prescribed declaration from the manufacturer buyers nor submitted the same to the prescribed authority. The assessee, therefore, contended before the CIT(A) that the Assessing Officer has misdirected itself in law in denying exemption from collection of tax at source where it sold the scrap to manufacturers only. The assessee accordingly contended before the CIT(A) that the Assessing Officer has wrongly treated the assessee company as assessee in default and wrongly raised aggregate demand of Rs.38,97,744/- against the assessee. The CIT(A) examined the various submission made on behalf of the assessee and also called for the remand report from the Assessing Officer towards certain evidences filed by the assessee in the form of declarations in Form 27C from the manufacturer buyers. After taking cognisance of the remand report as well as agreed position in the subsequent assessment years i.e assessment years 2009-10 to 2014-15, the CIT(A) held that no adverse inference in the matter of sales to manufacturers could be drawn by the Assessing Officer. The relevant paragraphs dealing with the submissions of the assessee and finding of the CIT(A) thereon is reproduced hereunder :-
“4. Appellant's submission & Appellate findings:
During the appellate proceedings, the AR of the appellant filed a detailed submission and produced declaration in Form 27C from the manufacturer buyers and claimed that the same were produced before AO also on 16.04.2015 i.e. immediately after the assessment order and pleaded that same may be accepted as these could not be filed before AO in time due to the very short time available with the appellant to file the same before the time barring date of the assessment. The appellant requested that the evidences in the form of Form 27C may be considered before finalizing the appeal. The details and evidences submitted by the appellant were sent to the AO for verification and comments. In his remand report, the AO commented that as these evidences were submitted after the prescribed time and are not acceptable and should not be considered.
The appellant was given an opportunity to file its comments on the remand report of the AO. The AR submitted a detailed, point wise rebuttal of
ITA No.3477/Ahd/2016 A.Y. 2008-09 Page 3 of 7 the remand report and requested that in view of the Form 27C from the manufacturer buyers, the assessee should not be treated 'assessee in default'.
The assessment order, submission of the appellant, remand report from the AO and the rejoinder filed by the appellant has been carefully considered. Since all the 4 Grounds of Appeal relate to and disputes the order passed by the AO, the same are discussed and adjudicated together.
4.1 In his remand report the AO has emphasized that actual usual/ manufacturer are out of the provisions of section 206C(1A) subject to collection of declaration in Form 27C from the buyer being manufacturer of actual user and submit the same within the seven days of the next following month in the office of the concern CCIT/CIT(TDS) as per Rule 37C r.w.s. 206C of the I. T. Act and denied the Form 27C filed by the appellant. The appellant stated in his rejoinder that the said declarations were filed with the office of the AO vide covering letter dated 10.04.2015 which was filed on 16.04.2015 and produced the copy of the covering letter. The AR of the appellant also mentioned that the identical facts and circumstances in the appellant's own case for subsequent assessment years i.e. 2009-10 to 2014-15 have been accepted by the AO and no adverse inference in the matter of sales to manufacturers is drawn by the AO. The AO has not denied the fact that the sale is made by the appellant to the manufacturers and the appellant is not liable to collect TCS on such sales subject to filing of Form 27C. In this case, as evident from the details produced by the AR the appellant filed Form 27C in April 2015 i.e. just after the assessment was completed. Now again, the appellant has produced the copies of Form 27C from the manufacturer buyers except in two cases who are the traders. He also provided the details of sales showing sale amounting to Rs.17,64,51,143/- to manufacturers and of Rs.37,94,014/- to two traders namely Laxmiraj Metal & Alloys P. Ltd. to the extent of Rs.8,03,088/- and to Mahindra Metal Trade link of Rs.29,90,926/-. With these details the appellant has requested that the default is only in the cases of these two traders on which TCS @ 1% is Rs.36,481/-.
At the same time the appellant raised the objection on the calculation of months of default for the purpose of imposing the interest and provided details in the following format:
Month Scrap sold Scrap sold Amount of No. of Interest to Traders to Traders TCS on months of @1% per (including (excluding Scrap Sales default month VAT) VAT) (in Rs.) (in Rs.) (in Rs.) (in Rs.) August 803,088 (to 772,200 7,722 14 1,081 Laxmiraj Metal & Alloys P. Ltd.) February 1,699,402 1,634,040 16,340 8 1,307 (to Mahindra Trade Link)
ITA No.3477/Ahd/2016 A.Y. 2008-09 Page 4 of 7 March 1,291,524 1,241,850 12,419 7 869 (to Mahindra Trade Link) Total 3,794,014 3,648,090 36,481 3,258
The AR also provided the copy of returns filed on 16.09.2008 by Laxmiraj Metal & Alloys P. Ltd. and on 02.09.2008 by Mahindra Metal Tradelink. Accordingly, the months of default are calculated as in above chart and the interest is calculated at Rs.3,258/-.
4.2 After gone through the all details provided by the appellant and the judicial pronouncements on the subject, it is noticed that the Form 27C produced by the appellant may be considered and default for non collection of TCS from the manufacturer buyers is to be deleted. In the case of Karnataka Forest Development Corpn. Ltd, v. Income-tax Officer, IDS Ward, Davangere IT Appeal Nos.1144 to 1146 (Bang.) of 2014 [AY 2009-10 to 2011-12] dated April 17, 2015, Hon'ble ITAT Bangalore Bench 'C' decided on the similar issue as under:
“Section 206C(1A) mandates that any person responsible for collecting tax under section 206C(1) need not do so if he obtains a declaration from the buyer that he is purchasing the goods for use in manufacturing, processing or producing articles or things. It does not say that such declaration has to be obtained at the very same moment when a sale is affected. A reading of sub section (1B) clearly brings out this since obligation of the assessee to file a copy of the declaration arises only when the declaration is furnished to him by the buyer. The point of reference is furnishing of declaration by the buyer and not the month or date on which sale is affected by the assessee. Even if we consider that there is a breach on the part of the assessee in not obtaining the declaration from the buyer the moment a sale was affected, and in filing it before the CCIT or CIT, as the case may be, a similar breach was considered to be only technical and one that could be condoned by Hon'ble Madras High Court in the case of Adisankara Spg. Mills (P.) Ltd. (supra). In the said case, assessee had filed Form 27C subsequent to the proceedings, through a rectification petition under section 154, but still considered to be sufficient compliance, which view of the Tribunal was confirmed by Hon'ble Madras High Court. Proceedings on the assessee for the alleged default here were initiated on 10/10/2011 and assessee had before 31/10/2012 filed the Forms. Assessment years involved were assessment year 2009-10 to 2011-12 and there was much time left with the Revenue to verify whether the buyers were indeed using the wood pulp for manufacturing, processing or producing article or thing and not for trading and to proceed against them if they had furnished false declaration. We are therefore of the opinion assessee could not have been deemed as one in default under section 206C(6D) of the Act or liable for interest under section 206(7). Orders of the lower authorities were, set aside.
Appeals of the assessee are allowed.”
Recently, Hon'ble High Court of Gujarat in tax appeal No.519 of 2016 Tax Appeal No.526 of 2016 Commissioner of Income Tax (TDS)....Appellant(s)
ITA No.3477/Ahd/2016 A.Y. 2008-09 Page 5 of 7 Versus Siyaram Metal Udyog Pvt. Ltd.....0pponent(s) in its order dated 27/06/2016 concluded as under :
"We make it clear in Revenue's appeal that there is no substantive ground challenging lower appellate findings in paragraph no. 8 of the CIT(A)'s order clarifying that a part of its high seas sales is already covered in earlier survey. There is also no dispute about the fact that the assessee has belatedly submitted relevant Form No.27C collected from its buyers. The same were placed on record before the Assessing officer itself who declined to accept the same in view of delay in submission thereof. There is no issue qua genuineness of these Forms. We find that the coordinate Bench decision of Tribunal (supra) already holds that such a belated submission of relevant Form is a procedural lapse only. The Revenue is unable to point any distinction on facts or law therein. We accordingly see no reason to interfere with lower appellate fin dings remitting the issue back to the Assessing Officer for adjudication afresh as per law. The Revenue 's corresponding ground accordingly fails. The Revenue's next argument seeks to restore interest component of the above stated impugned demand. We are of the view that this issue is a consequential one only. We uphold lower appellate findings qua this interest issue as well. Revenue's appeal ITA No.350/RJT/2015 fails.
Thus, in terms of the explanation clause (aa) any person who purchases the goods in retail sale for personal consumption would not be included within the definition of term 'buyer'. It is therefore, that under sub section (I A) of section 206C, calculation of tax under subsection 1 would not be made, if the buyer furnishes to the person responsible for the tax a declaration in writing in prescribed form declaring that the goods in question are to be utilized for the purposes of manufacturing process or producing articles or things or for the purpose of generation of power and not for trading purposes. The declaration to be made in subsection (1A) of section 206C thus would enable the Revenue authorities to, as and when the need so arises make proper verifications. This subsection itself does not provide for any time limit within which, such declaration is to be made. The time limit, of course, would be found in Rule 37C of Income Tax Rules, 1962. The main thrust of subsection 1A of section 206C thus is to make a declaration as prescribed, upon which, the liability to collect tax at source under subsection (I) would not apply When there was no dispute about such a declaration being filed in a prescribed format and there was no dispute about the genuineness of such declaration, mere minor delay in filing the said declaration would not defeat the very claim. The Tribunal therefore, viewed such delay liberally and in essence held that there was substantial compliance with the requirement of filing the declaration.
No question of law arises. Tax Appeals are dismissed”
ITA No.3477/Ahd/2016 A.Y. 2008-09 Page 6 of 7 4.3 After considering all the facts of the case and the judicial pronouncement by the Higher Authorities including jurisdictional High Court of Gujarat, it is concluded that there is no dispute about declarations in Form 27C and about the genuineness of such declarations, mere minor delay in filing the declarations cannot be seen adversely and claim of relief cannot be denied. In appellant's case, the Form 27C were submitted very soon after the assessment because the time available to submit the required forms before the AO was very short. However, as accepted by the appellant itself, for the default of non collection of TCS in case of sale to two traders as discussed above, the appellant is to be treated 'assessee in default'. Accordingly, the demand of short collection of TCS to be extent of Rs.36,481/- is confirmed. The AO is directed to delete the balance demand of TCS.
4.4 The demand of interest u/s. 206C(7) is also to be restricted corresponding to the extent of demand of Rs.36,481/- and the number of months for the purpose of calculating the interest is to be taken as per the details given by the appellant in above chart up to the month of September 2008 in which the returns of income are filed by the trader buyers. The AO is directed to calculate the interest accordingly.
In result, the appeal is partly allowed.”
The CIT(A) accordingly granted substantial relief in terms of conclusions noted above.
Aggrieved, the Revenue preferred appeal before the Tribunal.
Learned Departmental Representative relied upon the order passed by the Assessing Officer under section 206C dated 31.03.2015. Learned Authorised Representative, on the other hand, submitted, at the outset, that on identical facts and circumstances in assessee’s own case for subsequent assessment years, the position of the assessee towards full compliance of law towards collection of TCS has been accepted by the Assessing Officer. Learned Authorised Representative thereafter submitted that copies of Form 26C filed by the assessee received from the manufacturer buyers clearly reveal that the assessee was not liable to collection of TCS on such sales to manufacturer buyers. Ld. Authorised Representative thereafter adverted to the decision of Hon’ble Gujarat High Court in the case of CIT (TDS) vs. Siyaram Metal Udyog Pvt. Ltd., order dated 27.06.2016 (240 Taxman 578 (Guj)) as referred by the CIT(A) and contended that no fault can be found in the conclusion drawn by the CIT(A).
ITA No.3477/Ahd/2016 A.Y. 2008-09 Page 7 of 7 8. We have carefully considered rival submissions. We straightaway find that the CIT(A) has objectively examined the issue on facts and found that the assessee is entitled to relief from the rigours of provisions of section 206C(6A) read with section 206C(7) of the Act. The CIT(A) has denied relief where the buyers were found to be traders instead of manufacturers. On similar facts, the Assessing Officer has acquiesced with the position taken by the assessee. We also notice that the CIT(A) has rightly decided the issue on facts as well as having regard to the decision of the Hon’ble Gujarat High Court rendered in the case of Siyaram Metal Udyog Pvt. Ltd. (supra). We, therefore, do not find any infirmity in the action of the CIT(A) in deleting the tax demand on this score. We thus decline to interfere.
In the result, appeal of the Revenue is dismissed.
Order pronounced in the open Court on this 9th day of May, 2018. 10.
Sd/- Sd/- (Ms. MADHUMITA ROY) (PRADIP KUMAR KEDIA) Judicial Member Accountant Member Ahmedabad, the 9th day of May, 2018
PBN/*
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File
By order UE COPY , Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad