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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: SRI SANJAY GARG & SRI SANJAY AWASTHI
order : August 26th, 2024 ORDER Per Bench: This is a batch of appeals from AYs 2012-13 to 2017-18 pertaining to orders u/s 206C(6A) read with Section 206C(7) and u/s 201(1) read with .: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017-18 Sikkim Distilleries Limited. Section 201(1A) of the Act. The Registry has informed that there are delays in filing of the instant appeals and the periods of delay range from 72 days to 131 days in all of the 12 appeals. The appellant has filed an affidavit explaining the reasons for delay and the same is reproduced as under:
“In connection with the request for condonation of delay in filing of the subject appeals, an affidavit of Mr. Pranay Aneja, Managing Director of the Appellant Company, Sikkim Distilleries Limited, is attached herewith as Annexure 1.
That a survey was conducted on the Company on 16.02.2018, and post such survey, the copies of inventorised and impounded books of accounts were forwarded to the Ld. Deputy Commissioner of Income Tax (TDS), Circle 5, Gangtok [Ld. AO’].
That the Ld. AO passed separate orders dated 18.12.2018 under sections 201(1) r.w.s. 2O1(1A) and 206C(6A) r.w.s. 206C(7) of the Act for the assessment years 2012-13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18.
3. Against the demands raised by the Ld. AO vide the separate orders mentioned in Sl. No. 2 supra, the Company filed separate appeals before the Hon’ble Commissioner of Income Tax (Appeals) [‘Hon’ble CIT(A)’]. However, vide orders dated 31.10.2023 and 29.12.2023, the appeals were dismissed by the Hon’ble CIT(A) under a mistaken impression that the appealshave been settled under the Direct Tax Vivad se Vishwas Act, 2020.
4. That the earlier counsel, CA Mohit Tyagi, who was looking after the taxes of the Company, under a mistaken belief had advised the Company that the orders of the CIT(A) are correct and the appeals are dismissed correctly, and no further action is required to be taken.
5. That subsequently, it was realised that the VsV Scheme had been opted for by the Company only with respect to orders passed u/s 147 r.w.s. 144 and u/s 144 of the Act, and not against the orders passed under sections 201(1) r.w.s. 2O1(1A) and 206C(6A) r.w.s. 206C(7) and that the appeals were decided by the CIT(A) under a mistaken belief that appeals against orders passed under sections 201(1) r.w.s. 2O1(1A) and 206C(6A) r.w.s. 206C(7) of the Act were also settled under VsV Scheme.
6. That post such realisation, the Company appointed a new counsel who confirmed that the orders of CIT(A) were passed on a mistaken belief and such orders should have been challenged before the Hon’ble ITAT, and the Company proceeded to file the appeals forthwith.
That the delay in filing the appeals is attributable to mistaken advice received by the Company, and the same is neither wilful nor deliberate.
Page 2 of 8 .: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017-18 Sikkim Distilleries Limited. I solemnly state that the contents of the condonation application as filed and this affidavit are true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false.” 1.1. Considering the explanation submitted during the course of oral submissions on the last date and the contents of the affidavit (supra) the appeals are admitted for adjudication in the interest of substantive justice.
2. This batch of appeals pertaining to the action of the Commissioner of Income Tax (Appeals)-27, Kolkata [hereinafter referred to as ld. 'CIT(A)'] in dismissing all 12 appeals on the ground that the appellant had allegedly filed petition under Direct Tax Vivad Se Vishwas Act, 2020 (in short ‘DTVSVA’). It appears that the ld. CIT(A) was persuaded by a certificate in Form-5 issued by Pr. CIT, Central-2, Kolkata under DTVSVA in the assessee’s own case purportedly in all the 12 matters. Considering the certificates before him, ld. CIT(A) treated all these appeals as infructuous and dismissed the same through separate orders.
2.1. It is seen that in this batch of appeals, six appeals each pertaining to orders passed u/s 201(1) read with Section 201(1A) of the Act and u/s 206C(6A) read with Section 206C(7) are as under:
Appeals against orders passed u/s Appeals against orders passed u/s 201(1) r.w.s. 201(1A) 206C(6A) r.w.s. 206C(7) AYs ITA Nos.: AYs ITA Nos.: 2012-13 1044/KOL/2024 2012-13 1045/KOL/2024 2013-14 1046/KOL/2024 2013-14 1047/KOL/2024 2014-15 1048/KOL/2024 2014-15 1049/KOL/2024 2015-16 1050/KOL/2024 2015-16 1051/KOL/2024 2016-17 1052/KOL/2024 2016-17 1053/KOL/2024 2017-18 1054/KOL/2024 2017-18 1055/KOL/2024 2.2. The ld. A/R has submitted a detailed paper book running into 221 pages along with written submissions to basically aver that the DTVSVA certificates, are in the case of this very same assessee for the very same years under consideration, but the certificates were actually issued for regular assessments u/s 144/147 of the Act (for AY 2012-13 to AY 2016-17) and u/s 144 of the Act (for AY 2017-18). Thus, it has been vehemently argued that the ld. CIT(A) relied on the certificates which did not pertain to the 12 appeals Page 3 of 8 I.T.A. Nos.: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017-18 Sikkim Distilleries Limited. before him. It is in light of these facts that following grounds of appeal have been presented for consideration. For this purpose, is being taken as the lead case and the grounds from the same are being extracted as under:
“1. That the Hon’ble CIT(A) has erred in law and on facts and circumstances of the case, in dismissing the appeal under the mistaken impression that the appeal has been settled under the Direct Tax Vivad se Vishwas Act, 2020, inter alia because 1.1. The Appellant had not opted for VSV in respect of the impugned order dated 18.2.2018 passed by the Ld. DCIT (TDS) Circle 5 Gangtok u/s 201(1) r.w.s 201(1 A) of the Act, but had in fact opted for VSV in respect of an assessment order passed u/s 147 r.w.s. 143(3) for the same assessment year. 1.2. The Hon’ble CIT(A) has mixed up the facts in wrongly presuming that the Appellant has settled the dispute raised vide the impugned order under VSV. That the appellate order dated 31.10.2023 deserves to be set aside to the file of the Hon’ble CIT(A) for adjudication on merits.
2. That without prejudice to ground no. 1, and on the facts and circumstances of the case and in law, the Ld. DCIT(TDS) has erred in determining TDS liability of Rs. 5,78,052 without affording the reasonable opportunity of being heard and not allowing the reasonable time for providing the details and documents which is against the provisions of the Act, is arbitrary in nature, is unlawful and against the principles of natural justice.
3. That on the facts and circumstances of the case and in law, the Ld. DCIT(TDS) has erred in determining TDS liability of Rs. 2,37,880 on transportation charges u/s 194C of the Act and Rs. 2,04,576 as interest u/s 201(1 A) on the said amount of TDS, by misinterpreting the law, and his action is unjustified and against the principal of natural justice.
4. That on the facts and circumstances of the case and in law, the Ld. DCIT(TDS) has erred in determining TDS liability of Rs. 27,840 on professional and consultation fee u/s 194J of the Act and Rs. 23,942 as interest u/s 201(1 A) on the said amount of TDS, without affording the reasonable opportunity of being heard, ignoring the facts and circumstances of the case and not allowing the reasonable time for providing the details and documents which is arbitrary, unlawful and against the principles of natural justice.
That on the facts and circumstances of the case and in law, the Ld. DCIT(TDS) has erred in determining TDS liability Rs. 45,060 on loading and Page 4 of 8 .: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017-18 Sikkim Distilleries Limited. unloading, building and construction, towards SNT supervision, Md. Islam Constructor and electricity maintenance u/s 194C of the Act, and Rs. 38,752 as interest u/s 201(1A) on the said amount of TDS, which is contrary to the facts of the case, unjustified, unlawful and against the principles of natural justice.
That the Appellant reserves its right to file additional grounds of appeal
, if required, and/or amend/delete any grounds of appeal at the time of hearing of the appeal.”
3. The ld. A/R relied on the written submissions filed before us to canvass the point that certificates under DTVSVA were issued for different matters as compared to the issues contained in the impugned orders. Since the written submissions are identically worded for the two sets of matters, it would be appropriate to extract certain portions from one such document for reference as under:
“Qua ground 1 of appeal memo.
1. The present appeals are filed by Sikkim Distilleries Limited (‘the Appellant’) against appellate orders dated 31.10.2023 (for AYs 2016-17, 2015-16, 2013-14, 2012-13) and 29.12.2023 (AYs 2017-18, 2014-15) passed u/s 250 of the Income Tax Act, 1961 (‘the Act’) by the Commissioner of Income Tax (Appeals), Kolkata 27 (‘Hon’ble CIT(A)’). The appeals before the Hon’ble CIT(A) emanated from orders dated 18.12.2018 passed u/s 206C(6A) read with 206C(7) of the Act by the Ld. DCIT (TDS), Circle 5, Gangtok. Please refer opening para of the Hon’ble CIT(A)’s order for affirmation of the aforesaid fact. Copies of the impugned orders are placed at pages 19-36/PB.
2. In brief, the Appellant contends that the Hon’ble CIT(A) has erred on facts in treating the appeals before it as infructuous on the ground that the Appellant had settled the dispute under Vivad Se Vishwas Scheme and consequent issuance of Form No. 3/Form No. 5 by the Hon’ble PCIT (Central) - 2, Kolkata, (please refer last line/pg. 1 onwards of impugned appellate order).
The brief facts of the case are that a survey operation u/s 133A of the Act was conducted on the factory premises of the Appellant on 16.2.2018. Pursuant to the said survey, assessments were framed u/s 144/147 (for AYs 2012-13 to 2016-17) and u/s 144 (for AY 2017-18) and assessment orders dated 29.12.2018 (for AYs 2012-13 to 2016-17) and 29.12.2019 (for AY 2017-18) (were passed in Appellant’s case.
4. Thereafter, the Assessing Officer forwarded the matter to the Deputy Commissioner of Income Tax (TDS) Circle 5 Gangtok (‘Ld. DCIT(TDS)) for taking necessary action as per TDS/TCS provisions. The Ld. DCIT (TDS) Page 5 of 8 .: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017-18 Sikkim Distilleries Limited. passed separate orders dated 18.12.2018 u/s 206C(6A) read with section 206C(7) of the Act for AYs 2012-13 to 2017-18.
5. The orders dated 18.12.2018 passed by the Ld. DCIT(TDS) u/s 206C(6A) read with section 206C (7) were carried in appeal by the Appellant to Hon’ble CIT(A) Kolkata 27.
6. It is pertinent to point out that for the same assessee and for the same assessment years, appeals were also pending before the Hon’ble CIT(A) against TDS orders dated 18.12.2018 passed u/s 201(1) r.w.s. 201(1A) and also assessment orders dated 29.12.2018 and 29.12.2019 passed u/s 144/147 and 144 of the Act respectively. The following chart shows appeal numbers in respect of various appeals pending before CIT(A) Kolkata in respect of each of the assessment years starting from 2012-13 to 2017-18. Assessment Against order dated Against order dated Against order dated year 29.12.2018/29.12.201 18.12.2018 passed 18.12.2018 passed 9 passed u/s 144/147 u/s 201(1) r.w.s. u/s 2O6C(6A) r.w.s & 144 201(1A) 260C(7) 1 2 3 4 2012-13 CIT(A), Siliguri/10161/ CIT(A), Siliguri/10080/ CIT(A), Siliguri/10081/ 2018-19 2018-19 2018-19 2013-14 CIT(A), Siliguri/10162/ CIT(A), Siliguri/10083/ CIT(A), Siliguri/10084/ 2018-19 2018-19 2018-19 2014-15 CIT(A), Siliguri/10165/ CIT(A), Siliguri/10085/ CIT(A), Siliguri/10086/ 2018-19 2018-19 2018-19 2015-16 CIT(A), Siliguri/10167/ CIT(A), Siliguri/10089/ CIT(A), Siliguri/10090/ 2018-19 2018-19 2018-19 2016-17 CIT(A), Siliguri/10168/ CIT(A), Siliguri/10091/ CIT(A), Siliguri/10092/ 2018-19 2018-19 2018-19 2017-18 CIT(A), Siliguri/10314/ CIT(A), Siliguri/10094/ CIT(A), Siliguri/10093/ 2019-20 2018-19 2018-19 For AYs 2012-13 to 2017-18: - Copies of orders dated 18.12.2018 passed u/s 201(1) r.w.s. 201(1A) are placed at pages 37-108/PB - Copies of orders dated 18.12.2018 passed u/s 206C(6A) r.w.s. 206C (7) are placed at pages 109-144/PB.
7. The Appellant, meanwhile, preferred applications under the Direct Tax Vivad se Vishwas Act 2020 (VsV) vide applications in Form 1 and Form 2 in respect of appeals pending against order dated 29.12.2018 and 29.12.2019 passed u/s 144/147, and 144 (i.e., listed in col 2 in above chart referred in Para 6). The year-wise details of the said applications filed in respect of appeals against assessment orders passed u/s 144/147 are as under: AY Date of filing Application No. Date of issuance of Certificate No. of of Form 1 Form 3 Form 3 2017-18 25-12-2020 727488261251021 31-10-2021 234872320310121 2016-17 25-12-2020 727437381251021 31-10-2021 234858690310121 Page 6 of 8 .: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017-18 Sikkim Distilleries Limited. 2015-16 25-12-2020 727345191251021 31-10-2021 234972250310121 2014-15 25-12-2020 727381961251021 31-10-2021 234953320310121 2013-14 25-12-2020 727660731251021 31-10-2021 234959450310121 2012-13 25-12-2020 727622041251021 31-10-2021 234954910310121 Copies of the applications in Form 1 and copies of certificates in Form No. 3/Form No. 5 are placed at pages 145-221/PB. Certificates in Form No. 3/Form No. 5 issued by PCIT (Central)-2, Kolkata under section 5(1) of the DTVSV Act dealt with aforesaid appeals listed in col. 2 of the above chart as placed in Para 6 above i.e., appeals against assessment orders u/s 144/147 of the Act. …………………………………………………….. …………………………………………………….. From the aforesaid charts for respective assessment years, it is evident that the Hon’ble CIT(A) has while adjudicating appeals filed against order u/s 206C(6A) r.w.s 206(7) wrongly referred to Certificates in Form No. 3/ Form No. 5 issued under DTVSV scheme for respective years in respect of dispute relating to assessment order passed u/s 144/147 of the Act.
Accordingly, it is humbly pleaded that the impugned orders passed by the Hon’ble CIT(A) deserve to be set aside to the file of Hon’ble CIT(A) for fresh adjudication based on correct facts.
In case Your Honours do not concur with the aforesaid prayer, another opportunity of hearing may kindly be accorded to the Appellant to present the appeal on merits.” 3.1. Ld. D/R supported the orders of the authorities below.
We have carefully perused the impugned order and have gone through the contents of the paper book with the help of ld. A/R and also considered the certificates issued under DTVSVA. It is clear that the certificates under DTVSVA were issued for regular assessments and not for orders passed under the relevant provisions of TDS/TCS. Accordingly, considering the grounds pertaining to (basically the first ground of appeal
) the erroneous consideration of certificates under DTVSVA and the dismissing the appeals, it would be in the fitness of things to remand back all the 12 matters to the file of ld. CIT(A) for adjudication on merits. It also needs to be mentioned that through the written submissions, ld. A/R has requested for the same as well. In light of this, all the 12 matters are set aside for fresh adjudication by the ld. CIT(A) and the remaining grounds pertaining to the challenging of action of the AO Page 7 of 8 .: 1044 to 1055/KOL/2024 AYs: 2012-13 to 2017
18. Sikkim Distilleries Limited. in resorting to action u/s 206C(6A) read with Section 206C(7) and 201(1) read with Section 201(1A) of the Act are not adjudicated at this stage.