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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JM & SHRI RAMIT KOCHAR, AM
आदेश / O R D E R
PER SHAILENDRA KUMAR YADAV, JM Both these appeals are filed by the Revenue against the orders dated 14.02.2014 on similar issue. Therefore these appeals are disposed of by the common order for the sake of convenience. 2. In Revenue raised the following grounds: - “1. The Ld. CIT (A) erred in law and facts in upholding order u/s 201 (1)! 201 (1A) wherein demand of Rs. 46,56.020/- has been raised by not adjudicating the appeal on merits thereby denying assessee proper opportunity of being heard which is against the principal of natural justice and provisions of law.
The Ld. CIT (A) ought to have asked for or directed the Assessing Officer to deliver order u/s 201 (1)/201 (1A) of the Act and details of short deduction / short payment/ interest charged, before dismissing the appeal.
The Ld. CIT (A) ought to have held that the assessee cannot be treated as assessee in default u/s 201/201(1A) of the Act as the assessee in fact has paid the alleged short/non deduction of TDS. 4. Without prejudice to the above, for the alleged short deduction/ payment the assessee relies on Hon'ble Apex Court decision in case of Hindustan Coca Cola (293 ITR 226) hence where the deductee/recipient has already paid taxes on income received from assessee, the dept. cannot again recover tax u/s 201 of the Act from deductor on the same income. 5. The Ld. CIT (A) erred in law and facts in upholding demand on account of interest u/s 201(1A) of the Act on above referred alleged defaults without considering the fact that the deductees have paid taxes on due date on their income.” 3. Assessee is claimed to have engaged in EPC Infrastructures activities. TDS Return under section 200(3) in Form No. 26Q for Quarter 3 filed on 14.01.2009 paying TDS of `86,21,122/-. Assessee received notice of demand under section 156 of the Act showing demand of `46,50,020/-. Assessee claims that she has not given proper opportunity so he took the matter to the CIT(A) who dismissed the appeal of the assessee by observing as under: -
“4. As per provisions of the I.T. Act only orders mentioned in section 246A are appealable with the Commissioner of Appeal. As in the instant case no order u/s. 201 of the I.T. Act appears to have been passed, and only a demand notice u/s. 156 has been served upon the assessee, no appeal would lie before the undersigned. In the circumstances, the said appeal is held to be non-maintainable and hence, dismissed.”
3.1 We do not find any infirmity in the order of the CIT(A) on technical aspect but at the same time as grounds raised before us. We find that on technical aspect assessee was denied opportunity of being heard at relevant point of time. Without prejudice to the maintainability of the appeal we are of the view that assessee should be given due opportunity of hearing by concerned Assessing Officer against his grievances at relevant point of time. So in the interest of justice we restore the matter to the concerned Assessing Officer with the direction to redress the grievance of assessee on issue as per the facts and law after providing due opportunity of hearing to the assessee. According to us such procedural grievances of assessee should be addressed by concerned Revenue authorities at the earliest. Since we are restoring the matter to the Assessing Officer on broad legal preposition, we are refraining to comment on the merits of the issue on hand.
Similar issue arose in ITA No. 2731/Mum/2014. Following the above reasons this appeal is also restored to the Assessing Officer with similar direction.
In the result, both the appeals of the assessee are allowed for statistical purposes as indicated above. प�रणामतः िनधा�रती क� अपील� सां�यक�य उ�े�य के िलए �वीकृत क� जाती है । Order pronounced in the open court on 30th October, 2015. आदेश क� घोषणा खुले �यायालय म� �दनांकः 30.10.2015 को क� गई । Sd/- Sd/- (RAMIT KOCHAR) (SHAILENDRA KUMAR YADAV) लेखा सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER मुंबई Mumbai, �दनांक Dated 30th October, 2015
आदेश क� �ितिलिप अ�ेिषत/Copy of the Order forwarded to :