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Income Tax Appellate Tribunal, RAIPUR BENCH: RAIPUR
Before: SHRI RAVISH SOOD & SHRI ARUN KHODPIA
आदेश / O R D E R
PER ARUN KHODPIA, ACCOUNTANT MEMBER:
These three appeals filed by the Assessee are directed against the order of the Commissioner of Income Tax (Appeals)- II, Raipur 13.10.2019 for assessment years 2011-12 & 2012-13. , 34 & 35/RPR/2020 2. The assessee has raised the following grounds of appeal:
A.Y. 2011-12 : 1. “On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in treating the assessee as assessee in default in respect of sum of Rs. 14,33,945/- paid to M/s Tamrakar Caterers on account of catering services, without appreciating the fact that the TDS on said payment amounting to Rs.14,339/- was paid through the head Office under its TAN JBPD00956E and therefore, the assessee was not liable to deduct TDS under its TAN as they have centralized system of deducting TDS, and Learned CIT(A) is not justified in confirming the order of Learned AO merely due to the reason that quarterly TDS Statement w/s 200(3) did not contain the details or TDS Statement u/s 200(3) was not filed for which penalty u/s 272A(2)(k) is leviable but assessee cannot be treated as "assessee in default" u/s 201 for such failure as the assessee had duly deducted and deposited the TDS, hence, it is prayed that the demand raised may kindly be cancelled.
2. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) @ 20% of Rs.98,360/- i.e. Rs. 19,672/-(which already stands deposited by the assessee, credit whereof has not been given) which is applicable in the case where no PAN is available as per Section 206AA instead of computing the amount @ 1% as per Section 194C of the Income Tax Act, 1961, the Learned CIT (Appeals)-11, Raipur has erred in confirming the action of the Learned AO as the PAN was submitted at later date. Hence, it is prayed that the amount payable as per Section 201(1) be computed @ 1% as provided u/s 194C as PAN of the said deductee is available, the Learned AO has further erred in not giving credit of Rs. 1, 571/- which has been paid by the assessee merely due to the reason that the same could not be mentioned in the quarterly TDS Statement u/s 200(3). , 34 & 35/RPR/2020 3. On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in calculating interest on the aforesaid additions. 4. On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in treating the assessee as assessee in default in respect of sum of Rs.64,824/- without appreciating that the said deducteee / payee has discharged the income tax liability due thereon and has filed the return of income without considering the provisions of Section 4,191,202 and 205 of the Income Tax Act, 1961. 5. The Appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of Appeal
.” for A.Y. 2012-13 : 1. “On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in treating the assessee as assessee in default in respect of sum of Rs. 8,14,693/- paid to M/s Mohan Caterers on account of catering services, without appreciating the fact that the TDS on said payment amounting to Rs.8,147/- was paid through the head Office under its TAN JBPD00956E (which already stands deposited by the assessee, credit whereof has not been given) and therefore, the assessee was not liable to deduct TDS under its TAN as they have centralized system of deducting TDS, and Learned CIT(A) is not justified in confirming the order of Learned AO merely due to the reason that quarterly TDS Statement u/s 200(3) did not contain the details or TDS Statement u/s 200(3) was not filed for which penalty u/s 272A(2)(k) is leviable but assessee cannot be treated as "assessee in default" u/s 201 for such failure as the assessee had duly deducted and deposited the TDS, hence, it is prayed that the demand raised may kindly be cancelled.
2. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) in respect of payment made to M/s Maa Shitla Radio @20% of Rs.1,22,229/- i.e. Rs. 24,446/- (Rs.1,657/- already stands deposited by the assessee, ITA Nos.33, 34 & 35/RPR/2020 credit whereof has not been given) which is applicable in the case where no PAN is available as per Section 206AA instead of computing the amount @ 1% as per Section 194C of the Income Tax Act, 1961, the Learned CIT (Appeals)-11, Raipur has erred in confirming the action of the Learned AO as the PAN was submitted at later date. Hence, it is prayed that the amount payable as per Section 201(1) be computed @ 1% as provided u/s 194C as PAN of the said deductee is available, the Learned AO has further erred in not giving credit of Rs. 1,657/- which has been paid by the assessee merely due to the reason that the same could not be mentioned in the quarterly TDS Statement u/s 200(3).
3. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) in respect of payment made to M/s Tarun Electronics for purchase of electrical goods amounting to Rs. 1,54,877/-, as liability to deduct TDS does not arise on purchase of goods. Thus, the Learned AO has erred in computing TDS @20% of Rs. 1,54,877/- i.e. Rs. 30,975/- and the Learned CIT(A) is not justified in passing non speaking order as the order of Learned CIT(A) is silent on the said issue.
4. On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in calculating interest on the aforesaid additions.
5. On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in treating the assessee as assessee in default in respect of Rs.1,12,187/- without appreciating that the said deducteee/ sum of payee has discharged the income tax liability due thereon and has filed the return of income without considering the provisions of Section 4,191, 202 and 205 of the Income Tax Act, 1961.
6. The Appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of Appeal
.” for A.Y. 2012-13 : 1. “On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in treating the assessee as assessee in default in respect of sum of Rs. 11,97,645/- paid to Mr. Deepak Kumar , 34 & 35/RPR/2020 Tamrakar, without appreciating the fact that the TDS on said payment amounting to Rs.11,977/- was paid through the head Office under its TAN JBPD00956E (which already stands deposited by the assessee, credit whereof has not been given) and therefore, the assessee was not liable to deduct TDS under its TAN as they have centralized system of deducting TDS, and Learned CIT(A) is not justified in confirming the order of Learned AO merely due to the reason that quarterly TDS Statement u/s 200(3) did not contain the details or TDS Statement u/s 200(3) was not filed for which penalty u/s 272A(2)(k) is leviable but assessee cannot be treated as "assessee in default" u/s 201 for such failure as the assessee had duly deducted and deposited the TDS, hence, it is prayed that the demand raised may kindly be cancelled.
2. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) in respect of payment made to M/s. Jay Tamrakar for purchase of Building Material amounting to Rs.2,11,840/-, as there was no liability to deduct TDS on purchase of goods. Thus the Learned AO has erred in computing TDS of Rs.2,118/- and the Learned CIT(A) is not justified in passing non speaking order as the order of Learned CIT(A) is silent on the said issue.
3. Without prejudice to the above, alternatively, the Learned AO has erred in computing TDS of Rs. 2,118/- without appreciating the fact that the payee has duly furnished his return of income us 139 and as per first proviso to 201(1), if a person fails to deduct whole or part of TDS on the sum paid to payee, the person shall not be deemed to be assessee in default, if the payee has furnished his return of income u/s 139.
4. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable us 201(1) in respect of payment made to Mr. Kamdev Sinha for purchase of Building Material amounting to Rs. 1,00,000/-, as there was no liability to deduct TDS on purchase of goods. Thus, the Learned AO has erred in computing TDS of Rs. 20,000/- (at the rate 20%) and the Learned CIT(A) is not justified in passing non speaking order as the order of Learned CIT(A) is silent on the said issue. , 34 & 35/RPR/2020
5. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) in respect of payment made to M/s Mahamaya Hardware for purchase of Hardware Items & Material amounting to Rs. 52,275/-, as there was no liability to deduct TDS on purchase of goods. Thus, the Learned AO has erred in computing TDS of Rs. 10,455/-(at the rate 20%) and the Learned CIT(A) is not justified in passing non speaking order as the order of Learned CIT(A) is silent on the said issue.
6. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) in respect of payment made to M/s Parakh Hardware for purchase of Electrical Items & Material amounting to Rs. 40,852/-, as there was no liability to deduct TDS on purchase of goods. Thus, the Learned AO has erred in computing TDS of Rs. 8,170/-(at the rate 20%) and the Learned CIT(A) is not justified in passing non speaking order as the order of Learned CIT(A) is silent on the said issue.
7. Without prejudice to the above, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in computing the amount payable u/s 201(1) in respect of payment made to M/s Ghanshyam Hotel amounting to Rs.36,000/- The Learned AO has erred in computing TDS of Rs. 360/-without passing any speaking order on said issue.
8. On the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in calculating interest on the aforesaid additions.
9. Without prejudice to the above grounds, on the facts and in the circumstances of the case, the Learned ITO (TDS), Bhilai has erred on facts and in law in treating the assessee as assessee in default in respect of sum of Rs.92,621/- without appreciating that the said deducteee / payee has discharged the income tax liability due thereof and has filed the return of income without considering the provisions of Section 4,191, 202 and 205 of the Income Tax Act, 1961.
10. The Appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of Appeal.” , 34 & 35/RPR/2020 :: 7 ::
3. Since, the aforesaid 3 appeals pertains to M/s. Block Resources Coordinator, Rajiv Gandhi Siksha Mission, Patan, the same assessee for 3 different assessment years having common, identical issues, therefore, we are taking up all three appeals together for adjudication.
At the outset, Learned AR of the assessee submitted written submissions pertaining to each year, the same are extracted as under:
A.Y. 2011-12 : Hon'ble Sir. Under instructions from our aforesaid client, we respectfully submit before your honor as under: 1. It is respectfully submitted that the order u/s 201&201(1A) was passed vide order dated 23.03.2018 determining the total demand payable at Rs.98,838/- details whereof is as under: , 34 & 35/RPR/2020 :: 8 ::
The appeal filed by the assessee before the Learned Commissioner of Income Tax (Appeals) II. Raipur was partly allowed and levy of late filing fees u/s 234E of Rs.34,001/- was cancelled vide order dated 13.10.2019.
The assessee has preferred the appeal against the impugned order passed by FAA details whereof is as under:
4. The below mentioned documents are constituting 'Additional evidences under Rule 29 r.w.r. 18(4) of the Income-Tax (Appellate Tribunal) Rules 1963 for admission whereof, the assessee is making a humble prayer.
List of documents constituting additional evidences: , 34 & 35/RPR/2020 :: 9 ::
Prayer: In view of aforesaid facts, it is humbly submitted that the said documents may kindly be admitted as additional evidences as the same were directed to be filed by the Hon'ble Bench during the course of last hearing. For, Block Resources Coordinator, Rajiv Gandhi Siksha Mission, Patan for A.Y. 2012-13 : , 34 & 35/RPR/2020 , 34 & 35/RPR/2020 :: 11 ::
ITA Nos.33, 34 & 35/RPR/2020 for A.Y. 2012-13 : , 34 & 35/RPR/2020 , 34 & 35/RPR/2020 :: 14 ::
5. With the aforesaid submissions Learned AR of the assessee submitted that Learned ITO(TDS), Bhilai was unjustified on facts and in law in treating the assessee as ‘assessee in default’ in respect of non-deduction of TDS without appreciating the fact that the TDS on the said payment amounts paid by the head Office of the assessee under its TAN JBPD00956E. Therefore, the assessee was not liable to deduct TDS under its TAN as they centralized system of deducting TDS. Learned CIT(A) is not justified in confirming the order of Learned AO merely due to the reason that quarterly TDS Statement u/s 200(3) did not contain the details or TDS Statement under Sectio 200(3) was not filed for which penalty u/s 272A(2)(k) is leviable but assessee cannot be treated as ‘assessee in default’ u/s 201 for such failure as the assessee has duly deducted and deposited the TDS, hence, it is prayed that the demand raised may kindly be cancelled.
6. The second issue raised by the assessee was pertaining to deduction of TDS @1% u/s 194C of the Act whereas the same should be @20% when the PAN number of the contractor are not available. It was the contention of the Learned AR that since the assessee has submitted the PAN on a later date, the finding 34 & 35/RPR/2020 of Learned CIT(A)-II, Raipur was erroneous in confirming the action of Learned AO for making such additions.
The third issue raised by the Learned AR was pertaining to treating the ‘assessee in default’ in respect certain amount without appreciating that the said deductee/payee had discharged the income tax liability due therein and filed the return of income without considering the provisions of Section 4, 191, 202 and 205 of the Income Tax Act, 1961.
The aforesaid 3 contentions were raised by the assessee in its A.Y. 2011-12, apart from aforesaid common contentions, the assessee has assailed more grounds of appeal pertaining to TDS in & 35/RPR/2020.
7. Further, the assessee has submitted certain additional evidences under Rule 29 r.w.r 18(4) of the Income Tax (Appellate Tribunal) Rules, 1963 for all the above three years. Since the additional evidences submitted by the assessee were accepted by the Tribunal and such evidences were not available before the authorities below. It was the prayer of assessee that in the interest of justice such additional evidences may be taken 34 & 35/RPR/2020 on record and issues are to be decided in light of facts coming from such evidences.
8. Ld Sr DR, vehemently supported the order of authorities below, however has fairly agreed on acceptance of additional evidence with the request that in all equality in the interest of natural justice such facts should be remitted to the Ld AO for verification to decide the issue denovo.
We have considered the rival contentions and perused the material available on records. On perusal of additional evidences, it is observed that all additional evidence with reference to the contentions raised in the grounds of appeal are subject to verification of facts emanating from such additional evidence. Under such circumstances, without going into the merits of the issues, with the concession of Departmental representative, after fair agreement by both the parties to restore the issues back to the files of AO for verification as well as examination of evidences furnished before us, which were not available before the lower authorities for their perusal, thus, in the interest of substantial justice, we find it appropriate to restore the issues back to the files of AO for re-adjudication of the same afresh. Assessee shall be provided with reasonable 34 & 35/RPR/2020 opportunity of being heard, liberty is granted to the assessee to furnish all such information/evidences which are necessary / significant in deciding the issues and to assist the proceedings before the Learned AO, failing which Learned AO would be at liberty to decide the issue in accordance with law. Consequently, the order passed by Learned CIT(A) in all these three appeals are set aside and the issues raised are restored back to the file of Learned Assessing Officer for re-adjudication. In the result, grounds raised in all these three appeals are partly allowed for statistical purposes.
In combined result, 34 & 35/RPR/2020 For A.Ys.2011-12 & 2012-13 are partly allowed for statistical purposes.
Order pronounced on the 22nd day of September 2023, in Raipur.