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Income Tax Appellate Tribunal, DIVISION BENCH ‘B’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘B’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.1187/Chd/2017 (Assessment Year : 2012-13) M/s Steel Strips Wheels Limited, Vs. The D.C.I.T.(TDS), SCO 49-50, Sector 26, Sector 17E, Chandigarh. Chandigarh. PAN: AACCS3003L (Appellant) (Respondent)
Appellant by : Shri Ashwani Kumar, CA Respondent by : Shri Manjit Singh, Sr.DR Date of hearing : 07.02.2018 Date of Pronouncement : 04.05.2018
ORDER PER ANNAPURNA GUPTA, A.M.:
This appeal filed by the assessee is directed
against the order of learned Commissioner of Income
Tax(Appeals)-2, Chandigarh dated 30.5.2017 relating to
assessment year 2012-13.
The sole issue in the present appeal relates to the
assessee seeking rectification of mistake u/s 154 of the
Income Tax Act, 1961 (in short ‘the Act’), in the intimation
made u/s 200A of the Act, of levy of interest of
Rs.2,31,226/-, consequent to the Assessing Officer holding
it as assessee in default on account of late deposit of TDS
of Rs.51,38,361/- u/s 192 of the Act.
The brief facts relevant to the issue are that assessee
had filed its TDS return which was processed by the
Assessing Officer u/s 200A of the Act, wherein he observed
that the assessee had deducted TDS u/s 192 of the Act of
Rs.51,38,361/- which had been deposited late. The
Assessing Officer therefore levied interest of Rs.2,31,230/-
and issued demand notice u/s 156 of the Act. The assessee
applied for rectification u/s 154 which did not find favour
with the Assessing Officer.
The matter was carried in appeal before the
Ld.CIT(Appeals) where the assessee contended that the
interest had been wrongly charged for delay in depositing
TDS when in fact there was no delay and the TDS had in
fact been deposited in time. It was contended that the
amount of commission in this case related to that payable
to the Managing Director of the company which was
finalized only on 29.5.2012, when the books were audited
and finalized and Board meeting was held on the said date.
The Ld. counsel for assessee submitted that thereafter,
after determining the amount of commission payable to
Managing Director amounting to Rs.51.38 lacs on
29.5.2012, the TDS pertaining to the same was deposited on
7.6.2012 i.e. within nine days of determination of the
commission payable. Further it was also contended that
no TDS was in fact deductible in the present case since the
commission paid to the Managing Director was part of his
salary on which TDS was deductible u/s 192 at the time of
actual payment. The Ld.CIT(Appeals), after considering the
assessees submissions, dismissed the appeal stating that
the case of the assessee did not come within the purview of
section 154 of the Act since the mistake pointed out was
not a glaring mistake which was apparent from record. The
Ld.CIT(A) stated that the issue of commission on profits to
the Managing Director was a debatable issue as to whether
it was taxable as business profit or as salary and, therefore
also the issue whether the assessee was liable to deduct
TDS u/s 192 or not was also debatable. Thus the Ld.CIT(A)
held that the same could not be rectified under the present
proceedings u/s 154 where only apparent and glaring
mistakes could be corrected. The relevant findings of the
Ld.CIT(Appeals) at page 5.3 of his order are as under:
“5.3 Submission of the appellant have been considered. Hon'ble Supreme Court in the case of Hero Cycles Pvt. Ltd. has laid down the law that the rectification u/s 154 can only be made when a glaring mistake of fact or law committed by the officer which is apparent from record. Rectification was not possible if the question is debatable. Whether the commission on profit to the Managing Director is a business profit or paid as salary, when the commission became payable after the board meeting and whether the liability to deduct IDS was u/s 192 or not, these are debatable points from which facts can be established by a long drawn process of reasoning. Therefore it is not a mistake apparent from record. Hon'ble Supreme Court has further held in the case of Satyanarayan Laxmi Narayan Hegde AIR 1960 that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. The case of the appellant does not come within the provisions of sec 154 and therefore the ground taken by the appellant is liable to be dismissed.” 5. Aggrieved by the same, the assessee has come up in
appeal before us, raising following grounds:
That the Ld. Commissioner of Income Tax has erred “1. in law by holding that the issue of commission on profit paid to Managing Director is debatable as to whether it is salary or business profit, whereas as per the statutory provision of Section 17(1), the commission on profit is salary and TDS on the same
is applicable at the time of payment as per the provisions of Section 192. Therefore the appeal of the assessee against the rectification order u/s 154 should have been allowed and interest of Rs.231226/- u/s 201(1 A) should have been deleted. 2. That the assessee is not in default for late deposit of TDS u/s 192 and not liable for interest amounting to Rs.231226/- u/s 201(1 A) as the TDS has been deposited in time and therefore interest of Rs.231226/- may kindly be deleted. 3. The assessee craves leave to add, alter and amend the above grounds of appeal before the same are heard or disposed of. 4. It is respectfully prayed that the relief may kindly be allowed to the assessee keeping in view of the aforesaid grounds of appeal.” 6. During the course of hearing before us, the Ld. counsel
for assessee reiterated the contentions made before the
CIT(A) stating that there was no default on the part of the
assessee pertaining to late deposit of TDS in the present
case since TDS was actually deposited within time and
moreover no TDS was deductible in the present case. The
Ld. counsel for assessee relied upon the decision of the
Coordinate Bench of the I.T.A.T. in the case of ITO (TDS)-I,
Vs. M/s Vardhman Textile Ltd. in ITA No.979/Chd/2012
dated 7.12.2012 in this regard. The Ld. counsel for assessee
further contended that the mistake was very much apparent
from the record since the return of TDS had been filed in
Form No.24Q which was the form relating to TDS deducted
on salary and, therefore, there was no debate about the
character of the income on which TDS was deductible as
stated by the Ld.CIT(Appeals).
The Ld. DR, on the other hand, relied upon the order
of the Ld.CIT(Appeals).
We have heard the contentions of both the parties and
have gone through the orders of the authorities below, as
also the documents/orders, referred/relied upon before us.
We find no merit in the present appeal. The assessee has
sought rectification u/s 154 of the Act, of the intimation
made by the AO u/s 200A of the Act on processing TDS
return filed by the assessee, vis-a-vis levy of interest on
account of late deposit of TDS. The said section, i.e. section
154, has limited application, providing for rectification of
only those mistakes which are apparent from record, which
it is now settled must be obvious, clear and patent and
should not involve two opinions. There is no dispute vis-a-
vis this proposition of law. In the present case the facts on
record emanate from the TDS return filed by the assessee in
Form No.24Q, which was processed by the AO u/s 200A of
the Act. The said return mentions the fact of amount of
Rs.1,66,29,000/-, which was paid on 31.3.2012, on which
TDS amounting to Rs.51,38,361/-was deducted and
deposited on 7.6.2012. There is no dispute vis-a-vis these
facts and also that these were the only facts which were
available on record. As per the said facts, there was a
delay of three months in deposit of TDS which again has not
been disputed by the Ld. counsel for assessee. The levy of
interest consequently on account of the delay therefore is
based very much on the facts available on record. There is
therefore no mistake apparent from record justifying any
rectification u/s 154 of the Act. The contention of the
assessee that TDS was deposited well in time is based on
the alleged fact that the payment pertained to commission
paid to managing director which was determined late only
when the books of the assessee were finalized and Board
meeting held on 29.05.2012 and thereafter TDS deducted
and deposited within 9 days. All these facts were not part of
the record at all but were in fact brought on record only
subsequently in the proceedings u/s 154 by the assessee.
The Ld. Counsel for the assessee has not been able to
demonstrate before us as to how the aforesaid facts were
available on record when the TDS return was processed by
the AO u/s 200A of the Act. So also the contention of the
assessee that no TDS was deductible in the present case, is
again based on the fact that the amount on which TDS was
deducted pertained to commission paid to managing
director, which being in the nature of salary, TDS was liable
to be deducted only on payment of commission. As stated
herein before, these facts were not part of record when the
TDS return was processed by the Assessing Officer and were
brought on record only by way of submissions made by the
assessee during proceedings u/s 154 of the Act. Moreover
,the contention of the Ld.CIT(A) that whether commission
on profit to the managing director is a business profit or
salary and hence TDS is deductible u/s 192 or not is a
debatable issue has not been controverted by the
Ld.Counsel for the assessee before us.
Therefore, it is amply clear that levy of interest in the
present case on account of late deposit of TDS amounting to
Rs.2,31,226/- was not a glaring mistake apparent from
record and thus was not rectifiable u/s 154 of the Act. We,
therefore, uphold the order of the Ld.CIT(Appeals) in this
regard and dismiss the appeal filed by the assessee.
In the result, the appeal of the assessee is
dismissed.
Order pronounced in the open court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 4th May, 2018 *Rati* Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR
Assistant Registrar, ITAT, Chandigarh