SOUTH WESTERN RAILWAY,HUBLI vs. CIT, HUBLI

Per Bench : These six appeals by the assessee are directed against the composite

order of Commissioner of Income Tax (Appeals), Hubli dt.31.08.2015

arising from the order passed under Sections 206C r.w.s. 201(1A) of the

2 ITA Nos.1434 to 1439/Bang/2015 Income Tax Act, 1961 (in short 'the Act') for the Assessment Years 2007-

08 to 2012-13.

under :

“ (1) That the learned Respondent is erred in confirming the order of Income Tax Officer (TDS) Hubli without laying the due emphasis on explanation to section 191 which provides that primary liability of payment of income tax is on the assessee to whom the income belongs. (2) The learned Respondent is not justified in treating the appellant as an assessee in default only on failure to deduct tax at source. Reading together of section 201(1) and proviso to section 201(1) of the Act clarify that (a) that there shall be failure to withhold tax at source and (b) in addition to that failure, the recipient of the income has also failed to pay the tax directly. (3) The learned Respondent is not justified in not affording reasonable opportunity to the appellant to produce the copies of return filed by the licensee. The learned Respondent also failed to consider some of the copies of Return of Income filed by the licensee. (4) That the learned Respondent ought to have considered the fo llowing facts: (a) That Respondent failed to appreciate the fact that some of the licensee to whom parking lot were allotted filed their Return of Income and acknowledged that the receipts from parking lot as their income which is accepted by the department and in such a cases the appellant cease to be assessee in default.

3 ITA Nos.1434 to 1439/Bang/2015 (b) That the Respondent failed to appreciate that the onus is on the revenue to demonstrate that the taxes have not been recovered from the person to whom parking lot was awarded and they are the primarily liability to pay tax. There is no mention step taken by the Department in order u/s. 206(C). (c) That the learned Respondent failed to appreciate the fact the provisions of section 206C(6A) is in pari materia with the provisions contained in section 201 of Income-tax Act, 1961. No "assessee" can be considered as an "assessee in default" unless a demand notice under section 156 had been given to him. According to section 156 of the IT Act demand notice can be served only on account of tax, interest, penalty fine or other sum payable in consequence of any order passed under the Act. Sub-section 6A of section 206C contemplates the assessee to be in default in respect of tax without fixing the liability by due process of proceedings for computing tax liability by order and therefore hit by Article 19(1)(g) of the constitution. (d) That the learned Respondent ought to have consider the fact that the appellant cannot be treated as an assessee in default till it is found that the parking lot allottee or licensee has failed to pay tax directly. (e) That no sufficient and adequate opportunity of being heard was provided to the appellant to furnish certificate from the accountant and hence violate the principles of natural justice. (f) That sub-section 6 and 6A covers all situations and contingencies, and makes the liability absolute, limited on deductor. The sub-section does not provide for issue of notices, assessment, collection or anything connected with the imposition, levy and collection of the tax. (g) Section (4) of the Income tax Act is the charging section and according to said section, tax is levied upon assessee depending upon income accrued in the previous year and not upon the income earned by other persons. Invoking the provisions of section 206C(6) and 206C(6A) is erroneous and overrides the provisions of charging section.

4 ITA Nos.1434 to 1439/Bang/2015

(h) The definition of Railway administration does not make railway as legal entity or judicial person as it held by the Supreme Court in State of Kerala v. G.H.S Railway AIR 1976 SC 2538 equivalent citations: 1977 SCR (1) 419.

(5) That the learned Respondent has failed to appreciate the fact that the provisions of 206C is only "machinery provisions" and hence demanding the Tax by invoking the provisions of sub-section (6) from the licensor for failure to collect the tax from licensee is erroneous. (6) That the learned Respondent has erred in confirming the appellant as an assessee in default without laying due emphasis on limitation. Section 201 of the Act does not prescribe any limitation period for the assessee declared as an assessee in default. If no period of limitation is prescribed, a statutory authority must excise its jurisdiction within reasonable period. (7) That the learned Respondent has failed to appreciate that the proceeding under section 206C is also assessment proceeding and for re-assessment the AO should record the reason and issue notice under section 148 of the IT Act. APPEAL FEE (8) That as per Sec 253(6)(d) an appeal made, be accompanied by a fee of Rs.500/ - where the subject matter of appeal relates to any matter other than those specified in clause (a), (b) and (c) of the said section. The appellant has paid the appeal fee of Rs. 500/ - by challan. LIMITATION

(9) That as per section 253(3) of the Income tax Act the appeal to the Appellate Tribunal shall be made within Sixty days from the date of receipt of order. The appellant received the order on 5-10-2015 and as per the provisions of Act the appeal should be filed on or before 4.12.2015. The appellant is filing the appeal today.

5 ITA Nos.1434 to 1439/Bang/2015 PRAYER

(10) WHEREFORE, the appellant most respectfully prays on aforesaid grounds and among other grounds that will be urged at the time of hearing that this Hon'ble Tribunal may be pleased to: (i) To admit the appeal and allow this appeal and to set aside the order passed u/s. 206C; (ii) Set aside and cancel the demand of Tax and interest.

(iii) T hat your honour may be pleased to pass such orders as the facts and circumstances of the case may require. GROUNDS FOR INTERIM PRAYER ( . (11) That is most respectfully submitted that unless interim order sought for are granted, the appellant will be put to irreparable hardship and injury. The appellant have valid grounds and it is just and necessary to stay the operation of recovery till the disposal of appeal. Hence the need for interim relief. INTERIM PRAYER (12) Pending disposal of this appeal, the appellant respectfully pray that this Hon'ble Tribunal may be pleased grant the stay of the impugned order. The appellant is filed an application for stay for demand raised by the Income Tax Officer (TDS) Hubli in form as mention in Appendix X(e). Pending disposal, the appellant respectfully prays this Hon'ble Tribunal may please grant Order for waiver of pre deposit till the appeal is decided.” 3. The brief facts giving rise to the controversy are that a spot

verification was done by the Assessing Officer on 16.01.2013 in the office

of Senior Divisional Commercial Manager, South Western Railway, Hubli

6 ITA Nos.1434 to 1439/Bang/2015 Division, Keshwapur, Hubli. It was found during the verification that the

receipts of the assessee office includes parking lots lease charges. On

query by the Assessing Officer the officials of the assessee express their

unawareness of the provision to collect tax at source on such receipts.

Therefore a letter was issued by the Assessing Officer to the assessee to

furnish the particulars of such premiums, date of receipt, amount

received, tax collected at source and deposit of the same to the Govt. of

India account, return filed, etc. In response the assessee furnished the

details of the total receipts from parking lots/license fees for the F.Ys

2006-07 to 2011-12 relevant to the Assessment Years 2007-08 to 2012-

receipts, the Assessing Officer invoked the provisions of section 206C of

the Act and passed the impugned order by holding that the assessee as

the assessee in default under Section 206C of the Act. The Assessing

Officer computed the tax liability @ 2% of the total receipts and interest

@ 1% per month as per Section 201(1A) of the Act. The assessee

challenged the action of the Assessing Officer before the CIT (Appeals)

but could not succeed.

7 ITA Nos.1434 to 1439/Bang/2015 4. Before us, the learned Authorised Representative of the assessee

has submitted that the spot verification was done on 16.1.2013 and the

details pertaining to the earlier year was called for by the Assessing

Officer giving very short period of time to the assessee to collect

necessary details from the earlier licensees who had already left the

parking lots. Thus the learned Authorised Representative has pleaded

that the assessee was not given a proper opportunity to collect the

information about the tax paid by the licensees and to produce before

the Assessing Officer. He has explained that since the information

pertains to six years and out of which five years are prior year for which

it was not easy to trace out the persons operating the parking lots and

collect the information about the tax paid by those persons. The learned

Authorised Representative pleaded for grant of one more opportunity to

the assessee to file the necessary details of the tax paid by the licensees.

submitted that the assessee was given sufficient opportunity to furnish

the details of tax paid by the licensee. However the assessee failed to

produce any such details either before the Assessing Officer or before

8 ITA Nos.1434 to 1439/Bang/2015 the CIT (Appeals). Therefore no further opportunity can be given to the

assessee.

material on record. As per the details of the receipts furnished by the

assessee before the Assessing Officer, the following amounts were

received as license fees towards parking lots :

F.Y. Amount in Rs. 2006-07 1365582 2007-08 1939831 2008-09 2426710 2009-10 2955630 2010-11 4770981 2011-12 7059143

Section 206C(1C) mandates the collection of tax by the person who

grants the license / lease and receive the amount or debit the amount

payable by the licensee at the rate prescribed under this section. For

ready reference Section 206C(1C) of the Act is quoted as under :

“ 206C (1C) Every person, who grants a lease or a licence or enters into a contract or otherwise transfers any right or interest either in whole or in part in any parking lot or toll plaza or mine or quarry, to another person, other than a public sector company (hereafter in this section referred to as "licensee or lessee") for the use of such parking lot or toll plaza or mine or quarry for the purpose of business shall, at the time of debiting of the amount payable by the licensee or lessee to the account of the licensee or lessee or at the time of receipt of such amount from the licensee or lessee in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, collect from the licensee or lessee of any such licence, contract or lease of the nature specified in column (2) of the Table below, a sum

9 ITA Nos.1434 to 1439/Bang/2015 equal to the percentage, specified in the corresponding entry in column (3) of the said Table, of such amount as income-tax: Sl.No. Nature of Contract or Licence or lease etc. Percentage (i) Parking Lot Two percent (ii) Toll Plaza Two percent (iii) Mining or quarrying Two percent

Explanation 1.—For the purposes of this sub-section, "mining and quarrying" shall not include mining and quarrying of mineral oil. Explanation 2.—For the purposes of Explanation 1, "mineral oil" includes petroleum and natural gas.”

tax or the payment of tax by the licensee on the income from parking

lots the assessee being responsible for collection of tax is liable to pay

the tax being the assessee in default. In this case the spot verification

was done on 16.1.2013 and thereafter the Assessing Officer issued show

cause notice and reminder as under :

“ Since it was apparent from the reply and figures given by the deductor that no TCS was collected a show cause notice as to why action under Sections,206(C) of the Income Tax Act, 1961, should not be taken against the Sr. Divisional Commercial Manager, SW Railway, for the above default of not collecting tax was issued and serve don 15.2.2013. Since there was no response, the same was reminded through a letter issued and served on 28.2.2013. further, the office was also telephonically contacted several times and requested to make their submissions, if any, in response to the show cause notice issued. There was no reply to any of the above.

10 ITA Nos.1434 to 1439/Bang/2015 On telephonic reminder form this office on 26.3.2013 to appear immediately the office superintendent in the office of the assessee appeared on 28.3.2013 and stated that further time till 4th April, 2013, be allowed, as a last and final opportunity for his office to file a reply. As the matter was already finalized by this office in r.o. A.Y. 2006-07, 2007-08 and 2008-09, only in respect of AYs 2009-10 to 2011-12, time was allowed to 4th April, 203, as a last and final opportunity as per the request.”

It is apparent that only one month time was granted to the assessee to

furnish the relevant details and evidence to show that the licensees have

paid the tax on the income from parking lots. It is pertinent to note that

except one year i.e. A.Y. 2012-13, all other five assessment years are past

period and since the earlier year licensee at relevant point of time might

have left and discontinued to operate the parking lots therefore, it was

very difficult for the assessee to collect the information and evidence

from those licensees within such short period allowed by the Assessing

Officer. Having regard to the facts and circumstances of the case, where

relevant details of the payment of tax by the licensee pertains to the

earlier five years, we are of the view that the assessee was not given

sufficient time to do the needful. Accordingly, in the interest of justice

we set aside the impugned orders of the authorities below and direct the

11 ITA Nos.1434 to 1439/Bang/2015 Assessing Officer to give one more opportunity to the assessee to furnish

the relevant details and evidence of payment of tax by the licensee and

thereafter reconsider the matter afresh.

purpose.

Order pronounced in the open court on the 29th day of July, 2016.

Sd/- Sd/- (INTURI RAMA RAO) (VIJAY PAL RAO) Accountant Member Judicial Member *Reddy gp

Copy to : 1. Appellant 2. Respondent 3. C.I.T. 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard File.

By Order

Asst. Registrar, ITAT, Bangalore