The Income Tax Office, TDS-3,, JAMNAGAR v. Siyaram Metal Udyog Pvt. Ltd.,, JAMNAGAR

CO 51/RJT/2015 | 2012-2013
Pronouncement Date: 18-10-2016 | Result: Dismissed

Appeal Details

RSA Number 5124923 RSA 2015
Assessee PAN AAOCS0508E
Bench Rajkot
Appeal Number CO 51/RJT/2015
Duration Of Justice 1 year(s) 2 month(s) 21 day(s)
Appellant The Income Tax Office, TDS-3,, JAMNAGAR
Respondent Siyaram Metal Udyog Pvt. Ltd.,, JAMNAGAR
Appeal Type Cross Objection
Pronouncement Date 18-10-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 18-10-2016
Assessment Year 2012-2013
Appeal Filed On 27-07-2015
Judgment Text
ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 1 OF 14 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) BEFORE SHRI S.S. GODARA JUDICIAL MEMBER AND SHRI MANISH BORAD ACCOUNTANT MEMBER ITA NO S . 350 351 352 & 353 / RJT /201 5 ASSESSMENT YEAR S : 20 11 - 12 20 12 - 13 2013 - 14 & 2014 - 15 RESPECTIVELY INCOME TAX OFFICER VS. SIYARAM METAL UDYOG PVT. LTD. TDS - 3 JAMNAGAR. B - 18 SHANKER T EKRI UDYOG NGAR JAMNAGAR. [PAN AA O C S 0508 E ] C.O. NOS.50 51 52 & 53/RJT/2015 (IN ITA NO S . 350 351 352 & 353 / RJT /201 5 ) ASSESSMENT YEAR S : 20 11 - 12 2012 - 13 2013 - 14 & 2014 - 15 RESPECTIVELY SIYARAM METAL UDYOG PVT. LTD. VS. INCOME TAX OFFICER B - 18 SHANKER T EKRI TDS - 3 JAMNAGAR. UDYOG NGAR JAMNAGAR. [PAN AA O C S 0508 E ] (APPELLANT S ) (RESPONDENT S ) REVENUE BY : SHRI C.S. ANJARIA D.R. ASSESSEE BY : SHRI KAMLESH RATHOD C.A. DATE OF HEARING : 08.01.2016 DATE OF PRONOUNCEMENT : 18 . 01 .201 6 O R D E R PER S.S. GODARA J.M. ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 2 OF 14 THIS SET OF EIGHT CASES COMPRISE S OF REVENUES F OUR APPEALS AND ASS ESSEE S C ROSS O BJEC TION S THEREIN FOR A SSESSMENT YEARS 2011 - 12 TO 2014 - 15 . T HE SAME ARISE AGAINST C IT(A) S DIFFERENT ORDE RS ALL DATED 09.04.2015 IN CASE NOS.CIT(A)/JAM/199/14 - 15/41 CIT(A)/JAM/200/14 - 15/41 CIT(A)/JAM/201/14 - 15/41 & CIT (A)/JAM/202 / 14 - 15/41 A SSESSMENT YEAR - WISE R ESPECTIVELY. T HE REL E VANT PROCE E DINGS ARE UNDER SECTION 206C(6)/206C(7) OF THE INCOME TAX ACT 1961 ( THE ACT HEREINAFTER) IN ALL CASES. 2. BOTH PA R TIES INFORM US AT THE OUTSET THAT THESE FOUR APPEALS AND EQUAL N UMBER OF CROSS OBJECTIONS THEREIN RAISE IDENTICAL GROUNDS . WE ACC ORDINGLY TREAT A SSESSMENT YEAR 20 1 1 - 12 AS THE LEAD A SSESSMENT YEAR INVO LVING REVENUE S APPEAL NO .350/RJT/2015 AND ASSESS EE S CROSS OBJECTION NO. 50/RJT/2015 . W E FIND THAT THE ABOVE S TATED APPEAL RAISES FOLLOWING SUBS TANTIVE GROUNDS : - 1. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN LAW IN DELETING THE ADDITIONS MADE U/S.206C(1) OF THE I.T. AC ON ACCOUNT OF NON - COLLECTION OF TCS ON SALE OF SCRAP AND INTEREST CHARGED U/S.206 C(7) IN SPITE OF THE FACT THAT THE ASSESSEE WAS TRADER OF SCRAP AND THE PROVISION OF SECTION 206C(1) APPLY TO THE ASSESSEE. 2. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN ISSUE OF DIRECTION IN VIOLATION OF PROVISO TO SUB SEC. (7) OF SECTION 206 C OF I.T. ACT TO THE A.O. THAT INTEREST SHOULD BE ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 3 OF 14 CALCULATED ONLY IN RESPECT OF THOSE BUYERS WHO HAVE NOT PAID TAX DUE ON THE RETURNED INCOME WHEREAS INTEREST SHOULD BE CALCULATED IN CASE OF ALL BUYERS WHO HAVE FILED FORM NO.27BA AS PROVIDED IN THE ABOV E SECTION. 3. THE LD. CIT(A) HAS ERRED N LAW S WELL AS ON FACTS IN DIRECTING NOT TO TREAT THE ASSESSEE IN DEFAULT FOR NON COLLECTION OF TCS ON SALE OF SCRAP TO MANUFACTURER WHERE FORM NO.27C HAVE BEEN FILED WITH THE DEPARTMENT EVEN THOUGH THE SAME WERE FI LED INORDINATELY LATE AND AFTER THE DETECTION OF DEFAULT BY THE DEPARTMENT. 4. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN DIRECTING TO CONSIDER ONLY THE BALANCE PERIOD HIGH SEAS SALE AND TO CONSIDER BELATEDLY FILED FORM NO.27C AS SUFFICIENT CO MPLIANCE. 5. THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN DIRECTING NOT TO CHARGE INTEREST ON SALES WHERE FORM NO.27C ARE FILED BELATEDLY AND FATTER DETECTION OF DEFAULT BY THE DEPARTMENT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. PASSED U/S 206C(6A) & 206C(7) OF THE ACT. 7. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 8. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE FACT. 3. THE ASSESS E E S AVERMENTS IN ITS C ROSS OBJECTION READ AS UNDER : - 1. THE LEARNED INCOME TAX OFFICER TDS - 3 JAMNAGAR AS WELL AS THE HONOURABLE COMMISSIONE R OF INCOME TAX (APPEALS) JAMNAGAR HAS ERRED IN LAW AS WELL AS ON FACTS IN ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 4 OF 14 HOLDING/CONFIRMING THAT TRADING ACTIVITY OF RECYCLED NON FERROUS METALS BY THE RESPONDENT IS FALLING WITHIN THE COVERAGE OF SECTION 206C(1). 2. THE LEARNED INCOME TAX OFFICER TD S - 3 JAMNAGAR AS WELL AS THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) JAMNAGAR HAS ERRED IN LAW AS WELL AS ON FACTS BY INVOKING PROVISIONS OF SECTION 206C IN SPITE OF THE FACT THAT THE RESPONDENT IS NOT ENGAGED IN ANY MANUFACTURING ACTIVITY. 3. THE LEARNED INCOME TAX OFFICER TDS - 3 JAMNAGAR AS WELL AS THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) JAMNAGAR HAS ERRED IN LAW AS WELL AS ON FACTS BY INVOKING PROVISIONS OF SECTION 206C INSPITE OF THE FACT THAT AT ANY POINT OF PRECEDING SALES T HE GOODS TRADED WERE NEVER GENERATED AS SCRAP WHICH IS DERIVED FROM ANY MANUFACTURING ACTIVITY BUT IN FACT AT ANY STAGE THERE WERE FINISHED GOODS AND IS TRADED AS UNUSED FINISHED PRODUCT. 4. THE LEARNED INCOME TAX OFFICER TDS - 3 JAMNAGAR AS WELL AS THE H ONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) JAMNAGAR HAS ERRED IN LAW AS WELL AS ON FACT BY INVOKING PROVISIONS OF SECTION 206C WHICH ARE NOT APPLICABLE TO TRADER OF RECYCLED NON FERROUS METALS AS THE RESPONDENT DOES NOT FALL WITHIN THE DEFINITION OF T HE BUYER AS GIVEN IN THE EXPLANATION TO THE SECTION 206C OF THE ACT. 5. THE LEARNED INCOME TAX OFFICER TDS - 3 JAMNAGAR AS WELL AS THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) JAMNAGAR HAS ERRED IN LAW AS WELL AS ON FACTS IN HOLDING THAT THE HIGH SEAS SALES MADE BY THE RESPONDENT IS FALLING WITHIN THE DEFINITION OF SCRAP AND APPLIED THE PROVISIONS OF SECTION 206C OF THE ACT. 6. THE LEARNED INCOME TAX OFFICER TDS - 3 JAMNAGAR AS WELL AS THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) JAMNAG AR HAS ERRED IN LAW AS WELL AS IN HOLDING THAT HIGH SEA SALE IS COVERED WITHIN THE MEANING OF SECTION 206C. THEY FAILED TO APPRECIATE THE FACT THAT THE GOODS HAS NEVER REACHED TO INDIAN COSTAL TERRITORY AND THE GOODS ARE SOLD OUTSIDE THE TERRITORY OF INDI A. THUS EVEN OTHERWISE THE SALE MADE BY THE ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 5 OF 14 RESPONDENT IS NOT FALLING WITHIN THE COVERAGE OF SECTION 2066C OF THE ACT. 7. THE LEARNED INCOME TAX OFFICER TDS - 3 JAMNAGAR AS WELL AS THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) JAMNAGAR HAS ER RED IN LAW AS WELL AS IN FACTS WHILE WORKING OUT THE FIGURE OF SALE OF SCRAP AS RS.57 99 82 656/ - WHICH IS ACTUALLY HIGH SEAS SALES AND THE AID ISSUE IS ALREADY DECIDED IN THE EARLIER YEARS IN RESPONDENT S FAVOUR AND THE SAME CANNOT BE AGAIN TAKEN UP WITHO UT ISSUING PROPER NOTICE UNDER THE ACT. 4. BOTH PARTIES REITERATE D THEIR RE S P ECTIVE PLEADING S DURING THE COURSE OF HEARING. THEY ALSO SUPPORT CIT ( A ) S ORDER TO THE EXTENT IT HAS GONE IN THE IR FAVOUR . 5. THE ASSESSEE WAS ORIGINALLY AFFIRMED CONVERTE D INTO A COMPANY ON GOING CONCERN BASIS W.E.F. 0 1. 0 6.2010. I T TRADES IN IMPORTED NON FERROUS M E TAL S BY SE L LING THE SAME IN LOCAL MARKETS. THE DEP ARTMENT CARRIED OUT SURVEY UNDER SECTION 133A OF THE ACT IN ITS CASE ON 17.10.2013. I T WAS NOTICED DURING V E RIFICATION OF BOOKS OF ACCOUNT THAT THE ASS ESSEE HAD SOLD SCRAP MATERIAL OF RS.1 50 20 20 771/ - IN RELEVANT F INANCIAL YEAR 2011 - 12 LIABLE FOR TAX COLLECTED AT SOURCE. THE A SSESSING OFFICER REFERRED TO SECTION 206C(1) READ WITH RULES 37C&D OF THE INCOME TA X RULES DESCRIBING FOR SUCH A TAX COLLECTION ON ABOVE STATED SCRAP SALES @ 1%. HE WOULD QUOT E SCRAP DEFINITION UNDER THE ABOVE STATED PROVISION. ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 6 OF 14 THE A SSESSING OFFICER SOUGHT TO TREAT THE ASSESSEE AS THE ONE IN DEFAULT SO AS TO INVOLVE POW E R OF FRAMING ASS ESSMENT UNDER SECTION 206C(6) OF THE ACT. THE ASSESSEE FILED ITS REPLY ON 0 5.12. 20 13 INTER ALIA FURNISHING COPY OF AUDIT REPO R T SALE REGISTER ACK NOWLEDGEMENT OF RETURN ALONG WITH C O MPUTATION O F INCOME. THIS WAS FOLLOWED BY IT S YET ANOTHER REPLY DA TED 30.12. 20 13. T HE ASS ESSEE ADMITTED AS NOT TO HAVE COLLECTED TAX ON ITS SCR A P SALES FOR THE REASON THAT IT WAS A TRADING ENTITY IN BRASS SCRAP IMPORTED FROM OVERSEAS AND DOMESTIC MA R KET SOLD IN LOCAL MARKET. IT EMPHASISED THE FACT OF NOT B EING A MANUFA CTURING UNIT. THE ASS ESSEE AS S E R TED TH AT SCRAP SOLD WAS NOT THE ONE COVER E D UNDER SEC TION 206C EXPLANATION (B) AS PER RAJ KOT B ENCH DECISION OF THE TRIBUNAL . IT WAS FINALLY EXPLAINED THAT NEITHER THE SCRAP HAS BEEN GENERATED FR O M MANUFACTURE OR MECHANICAL WORKING OF MATERIAL NOR WAS IT USABLE AS SUCH. 6. WE NOTICE FROM THE CASE FILE THAT THE A SSESSING OFFICER DID NOT AGREE TO EITHER OF THE ABOVE STATED PLEAS. HE REFER R ED TO TRIBUNAL S SPECIAL BENCH DECISION IN I TA NO S . 391 & 392/RJT/2011 FOR A S S ESSMENT YEARS 2009 - 10 & 20 10 - 11 IN THE CAS E OF M /S. B HARTI A UTO P RODUCTS VS. CIT APPL YING SECT I ON 206C IN CASE OF SCRAP ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 7 OF 14 SALES IN THE BUSINESS OF SCRAP TRADING AS WELL. HE OBSERVED THAT THE ASS ESSEE HAS NOT SUBMITTED F ORM NO. 27C COMPRISING OF ITS BUYERS DECLARATI ON TO THE CIT. HE DECLINED TO ACCEPT THE SAME PLACED ON RECORD WITH ASS ESSEE S WRITTEN SUBMISSION AS TO HAVE BEEN ISSUED IN JANUARY 2014 ONLY. THE A SSESSING OFFICER WENT BY THE ASS ESSEE S SURVEY STATEMENT ONLY ADMITTING NOT TO HAVE COLLECTED TAX AT SOURC E FOR THE REASONS ALREADY INDICATED HEREINABOVE. HE THEREAFTER TOOK NOTICE OF THE FACT THAT THE RELEVANT TITLE TO SECTION 206(1) CONTAINED CRUCIAL EXPRESSION PROFIT AND GAINS FR O M THE BUSINESS OF TRADING ... .... .. IN SCRAP ETC. H E DISAGR E ED WITH ASS E SSEE S CLAIM OF HAVING ACTED UNDER BONAFIDE BELIEF. ALL THIS RESULTED IN THE IMPUGNED T A X COLLECTED AT SOURCE (TCS) DEMAND OF RS.82 93 752/ - BEING RAISED IN ORDER DATED 17.10.2014. 7. THE ASS ESSEE PREFERRED APPEAL. IT S FIRST CONTENTI O N WAS THAT SECTIO N 206C OF THE ACT DID NOT APPLY IN SCRAP TRADER S CASE AS S TATED IN THE COURSE OF ASSESSMEN T PROCEEDING S . THE CIT ( A ) HAS TURNED DOWN THE SAME BY PLACING RELI ANCE ON T HE ABOVE STATED S PECIAL BENCH DECISION IN THE CASE OF M/S B HARTI AUTO PRODUCTS HOLDING A S UNDER : - ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 8 OF 14 35. IN THE MATTER UNDER APPEAL BEFORE US THE ASSESSEE HIMSELF HAS DECLARED THE GOODS IMPORTED BY HIM AS BRASS SCRAP BEFORE THE CUSTOMS AUTHORITIES. HE IS THEREFORE BOUND BY THAT DECLARATION. ONCE IT IS DECLARED AS WASTE AND SCRAP UNDER THE CU STOMS TARIFF ACT IT NECESSARILY FOLLOWS THAT IT IS IN THE NATURE OF WASTE AND SCRAP WHICH IS DEFINITELY NOT USABLE AS SUCH. BE THAT AS IT MAY THE DEFINITION OF SCRAP UNDER EXPLANATION (B) IS WIDER IN SCOPE THAN THE DEFINITION OF SCRAP AS GIVEN IN TH E CUSTOMS TARIFF ACT. IN THIS VIEW OF THE MATTER MATERIALS RECOVERED ON DEMOLITION OF BUILDINGS OLD MACHINES/FIXTURES/FITTINGS SOLD AS SCRAP DISCARDED PACKING MATERIALS ETC. WOULD ALSO FALL IN THE CATEGORY OF SCRAP AS DEFINED IN EXPLANATION (B) AS A LL OF THEM ARE ITEMS WHICH ARE NO LONGER USEFUL AS SUCH AND THEREFORE FALL IN THE CATEGORY OF WASTE AND SCRAP FROM THE MANUFACTURE OR MECHANICAL WORKING OF MATERIALS WHICH IS DEFINITELY NOT USABLE AS SUCH. RESULTANTLY GROUND NOS. 1 AND 2 TAKEN BY THE A SSESSEE IN BOTH THE ASSESSMENT YEARS UNDER APPEAL ARE DISMISSED. 8. THE ASSESSEE S NEXT ARGUMENT RAISED IN LOWER APPELLATE PROCEEDING S W A S THAT IT IS NOT AN ASSE S S E E IN DEFAULT AS HAVING COLLECTED F ORM NO. 27C; ALBEIT BELATEDLY A PART OF ITS SCRAP SALES IN QUESTION IS ALREADY COVERED IN EARLIER SURVEY EXERCISE DECID E D IN ITS FAVOUR AND PENDING BEFORE THE HON BLE JURISDICTIONAL H IGH C OURT AS FOLLOWS : - 7.1 GROUNDS NO. 5 & 6 IS REGARDING WHETHER APPELLANT IS 'ASSESSEE IS DEFAULT ' DESPITE SALES BEING MAD E TO MANUFACTURERS AND DECLARATION IN FORM NO 27C OBTAINED AND FILED WITH THE OFFICE OF THE COMMISSIONER OF INCOME TAX JAMNAGAR BUT THE SAME IS FILED LATE WITH OFFICE OF CIT & GROUND NO. 8 IS IN RELATION TO THE PERIOD UNDER SURVEY WHICH HAS BEEN COVERED I N THE EARLIER PROCEEDING CANNOT BE COVERED. ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 9 OF 14 AS PER PROVISIONS OF SECTION 206C(1A) NO TCS IS REQUIRED TO BE MADE IF THE BUYER FURNISHES A DECLARATION IN FORM NO. 27C TO THIS EFFECT. THE APPELLANT HAS SUBMITTED A CHART SHOWING THE AMOUNT ACTUALLY LIABLE FO R THE TCS SINCE PART OF THE YEAR HAS ALREADY BEEN SUBJECTED TO EARLIER PROCEEDING THE SAME IS REQUIRED TO BE CONSIDERED. THUS FOR THE SAKE OF CONVENIENCE THE DETAILS OF THE SALES COVERED BY THE AO WITH THAT OF ALREADY COVERED IS GIVEN HERE IN BELOW: PAR TICULARS AMOUNT (RS.) TOTAL HIGH SEAS SALES 57 99 82 656 / - LESS HIGH SEAS ALREADY COVERED IN THE PREVIOUS SURVEY UPTO (06.12.2010) 48 49 63 372 / - BALANCE HIGH SEAS SALES 9 50 19 284/ - THUS AS HELD IN GROUND NO. 2 TO 4 ABOVE THE ASSESSES IS LIABLE FOR COLLECTING THE TCS ON SALES OF SCRAP OF RS. 9 50 19 284/ - (I.E. HIGHSEAS SALES NOT COVERED THROUGH FIRST ASSESSMENT ORDER). SINCE THE APPELLANT HAS SUBMITTED THAT SALES MADE BY THEM ARE SALES TO THE MANUFACTURERS AND FROM THEY HAVE OBTAINED THE DECLARATION IN FORM NO. 27C AT THE TIME OF SALE. HOWEVER THE SAME HAS NOT BEEN SUBMITTED TO THE OFFICE CIT JAMNAGAR IN TIME. AS PER SECTION 206C(1B) THE PERSON RESPONSIBLE FOR COLLECTING TAX UNDER THIS SECTION I.E. THE SELLER SHALL SUBMIT A COPY OF T HE DECLARATION TO THE CHIEF COMMISSIONER OR COMMISSIONER ON OR BEFORE SEVENTH DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH DECLARATION IS FURNISHED. IN THE APPELLANT'S CASE IT IS SEEN FROM THE PAPER BOOK THAT THE APPELLANT SUBMITTED THE DECLARATION IN FO RM NO. 27C TO THE OFFICE OF THE CIT MAY BE LATE. THE SUBMISSION OF FORM NO. 27C BY THE APPELLANT IS ALSO CONFIRMED BY THE AO IN HIS ORDER BUT THE SAME WAS FILED LATE IT WAS NOT CONSIDERED BY HIM AND HE HAS HELD THE ASSESSEE IN DEFAULT AND THE ACCORDINGLY D EMAND IS RAISED. ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 10 OF 14 I HAVE GONE THROUGH THE FACTS AND SUBMISSION MADE AVAILABLE MERE LATE SUBMISSION OF SUCH FORMS TO THE OFFICE OF CIT CANNOT MAKE APPELLANT AS ASSESSEE IN DEFAULT AND THEY CANNOT BE HELD LIABLE FOR TCS. I AGREE WITH CONTENTION RAISED BY THE APPELLANT BY PLACING RELIANCE ON THE RECENT DECISION OF THE HON'BLE ITAT BENCH AHMEDABAD IN THE CASE OF K. P. G. ENTERPRISE VS. THE INCOME - TAX OFFICER TDS - 4 AHMEDABAD (ITA NO. 384/AHD/2012) THAT LATE SUBMISSION OF FORMS IS A PROCEDURAL LAPSE. IT HAS BE EN HELD BY THE ITAT BENCH THAT ONCE THE DECLARATION REFERRED TO IN SECTION 206C(1A) WAS RECEIVED BY THE APPELLANT THEN THEREAFTER THE APPELLANT COULD NOT LEGALLY COLLECT THE TCS FROM THE BUYERS AND CONSEQUENTLY THE APPELLANT CANNOT BE TREATED AS AN ASSESS EE IN DEFAULT FOR NOT COLLECTION OF TCS FROM SUCH BUYER. THE CASE OF THE APPELLANT IS SQUARELY COVERED BY THIS DECISION. THEREFORE VIEW OF AO IS ERRONEOUS. CONSEQUENTLY THE APPELLANT CANNOT BE TREATED AS AN ASSESSEE IN DEFAULT FOR NON COLLECTION OF TCS O N SALE OF SCRAP TO MANUFACTURER OF RS.9 50 19 284/ - WHERE FORM NO. 27C IS OBTAINED BY APPELLANT. ACCORDINGLY APPELLANT'S GROUNDS NO 5 6 & 8 ARE ALLOWED. 8. AS REGARDS GROUND NO. 9 10 & 11 ARE IN RESPECT OF HIGH SEAS SALES AND THE AR PUT FORTH THE ARGU MENT THAT THE SIMILAR SURVEY WAS ALREADY COVERED DURING THE SURVEY PROCEEDINGS FOR A.Y. 2011 - 12 (FOR F.Y. 2010 - 11 TILL 06 - 12 - 2010) AND THE ORDER WAS PASSED BY THE HON. COMMISSIONER OF INCOME TAX (APPEALS) - II RAJKOT IN THE APPELLANT'S FAVOUR AND RELEVAN T COPY OF THE ORDER WAS ALSO MADE AVAILABLE ON RECORD. THE ASSESSING OFFICER HAS ALREADY RAISED THE DEMAND ON THE SALE SAND MATTER HAS ALREADY DECIDED IN FAVOUR OF THE ASSESSEE AND THE SAME IS PENDING BEFORE THE GUJARAT HIGH COURT. THUS THE PERIOD WHICH I S ALREADY COVERED AND DECIDED CANNOT BE AGAIN TAKEN UP AND THUS THE FIGURE TAKEN AT RS. 57 99 82 656/ - IS IN CORRECT SINCE OUT OF THAT SALES TO THE DATE OF FIRST SURVEY BY ITO TDS - 3 JAMNAGAR WHICH COMES TO RS.48 49 63 372/ - COVERED AND HENCE THE SAME IS RE QUIRED TO BE REDUCED AND THE SAME TURNOVER ON WHICH THE ASSESSEE CAN BE HELD RESPONSIBLE. FOR THIS BALANCE AMOUNT OF SALE THE APPELLANT HAS ALREADY SUBMITTED THE FORM NO 27 C WHICH IS PLACED ON RECORD EVEN IN THE APPELLANT PROCEEDING. ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 11 OF 14 DECISION 8.1 THE CON TENTION RAISED BY THE APPELLANT THAT AO CANNOT CONSIDER THE SALES WHICH IS ALREADY COVERED IN THE PROCEEDING IS FOUND CORRECT AND THE AO IS DIRECTED TO CONSIDER THE BALANCE PERIOD HIGH SEAS SALES ONLY WHICH COMES TO RS. 9 50 19 284/ - . IN THE LIGHT OF THE G ROUND NO. 5 6 & 8 GROUND NO. 9 10 & 11 IS ALSO ALLOWED AND AO IS DIRECTED TO CONSIDER THE BELATED FILED FORM NO. 27C AS SUFFICIENT COMPLIANCE AND THE APPELLANT IS NOT LIABLE FOR TCS TO THE EXTENT OF THE FORMS FILED BY THEM. THUS THE GROUNDS NO. 9 10 & 11 ARE ALLOWED. 9. THE GROUND NO. 12 COVERS THE ASPECT OF CHARGEABILITY OF INTEREST. SINCE THE ASSESSEE IS NOT LIABLE FOR TCS AS THE SALES FOR THE PERIOD IS TO THE MANUFACTURE AND FORM NO. 27 C IS FILED THE APPELLANT IS NOT LIABLE TO COLLECT TCS AND ACCOR DINGLY THERE IS NO DEMAND THERE IS NO LIABILITY OF INTEREST ON THE APPELLANT AND THUS THIS GROUND NO. 12 IS ALLOWED. 9. THIS LEADS BOTH THE PARTIES AGGRIEVED. THE REVENUE S C ASE IS THAT THE C IT ( A ) HAS ER RE D IN AC C EPT ING THE ASS ESSEE S ARGUMENT ON MERIT SUBMITTING BELATED F ORM NO. 27C ALONG WITH CONSEQUENTIAL INTEREST. THE ASSESSE E S GRIEVANCE ON THE OTHER HAND RAISES A LEGAL PLEA OF NON APP LICABILITY OF SECTION 206C IN ITS SCRAP TRADING SALES. WE MAKE IT CLEAR IN REVENUE S APPEAL THAT THERE IS NO SUBSTA NTIVE GROUND CHALLENGING LOW E R APPELLATE FINDINGS IN PARA GRAPH NO.8 OF THE CIT ( A ) S ORDER CLARIFYING THAT A PART OF ITS HIGH SEAS SALES IS ALREADY COVERED IN EARLIER SURVEY. THERE IS ALSO NO DISPUTE ABOUT TH E FACT THAT THE ASS ESSEE HAS BELATEDLY ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 12 OF 14 SUBMITTED RELEVANT F ORM NO. 27C COLLECTED FROM ITS BUYERS. THE SAME WERE PLACED ON RECORD BEFORE THE ASSESSING OFFICER ITSELF WHO DECLINED TO ACCEPT THE SAME IN VIEW OF DELAY IN SUBMISSION THEREOF. THERE IS NO ISSUE QUA GENUINENESS OF THESE F ORMS. WE FIND THAT T HE CO - ORDINATE B ENCH DECISION OF T RIBUNAL ( SUPRA ) ALREADY HOLDS THAT SUCH A BELATED SUBMIS SION OF RELEVANT FORM IS A PROCEDURAL LAPSE ONLY. THE REVENUE IS UNABLE TO POINT ANY DIST INCTION ON FACTS OR LAW THEREIN. WE ACCORDINGLY SEE NO REASON TO INTERFERE WITH LOWER APPELLATE FINDINGS REMITTING THE ISSUE BACK TO THE ASSESSING OFFICER FOR ADJUDICATION AFRESH AS PER LAW. THE REVENUE S COR R ESP ONDING GROUND ACCORDINGLY FAILS. THE REVENUE S NEXT ARGUMENT SEEKS TO RESTORE INTEREST COMPONENT OF THE ABOVE STATED IMPUGNED DEMAND . W E ARE OF THE VIEW THA T THIS ISSUE IS A CONSEQUENTIAL ONE ONLY. WE UPH O LD LOWER APPELLATE FINDINGS QUA THIS INTEREST ISSUE AS WELL. REVENUE S APPEAL ITA NO. 350/RJT/2015 FAILS. 1 0 . T H IS LEA VES US WITH ASS ESSEE S CROSS OBJ ECTION RA ISING A LEGAL PLEA CHALLENGING APPLICABILITY OF SECTION 206C IN ITS CASE. WE HAVE ALREADY EXTRACTED HEREINABOVE S PECIAL BENCH FINDING (SUPRA ) REJECTING AN IDENTICAL PLEA. THE ASSESSEE FAILS IN POINTING OUT ANY ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 13 OF 14 DISTI NCTION ON FACTS O R LAW THEREIN . WE SEE NO GROUND TO INTERFERE WITH T H E LOWER APP ELLATE FINDING UNDER CHALLENGE. TH E ASSE SSEE S SOLE SUBS TANTIVE GR OUND FAILS ACCORDINGLY. SAME IS THE OUTCOME OF IT S INSTANT C ROSS OBJECTION NO. 50/RJT/2015. 11 . SAME ORDER TO FOLLOW IN R EVENUE S OTHE R THREE APPEALS I.E. ITA NOS.351 352 & 353/RJT/2015 AND AS SESS EE S CROSS OBJECTION S I.E. C.O. NOS.51 52 & 53/RJT/2015 FOR A SSESSMENT YEARS 2012 - 13 2013 - 14 & 2014 - 15 . 12 . WE REFER TO OUR ABOVE DETAILED DISCUSSIONS IN PREC E DING PARA GRAPHS TO DISMISS ALL THE REV ENUE S APPEAL NOS. 350 351 352 & 353/RJT/2015 AND AS S ESS E E S CROSS OBJECTIONS THEREIN I.E. C.O. NOS.50 51 52 & 53/RJT/2015 . ORDERED ACCORDINGLY. PRONOUNCED IN THE OPEN COURT ON THE 18 TH DAY OF JANUARY 2016. SD/ - SD/ - MANISH BORAD S.S. GODARA ( ACCOUNTANT MEMBER) ( JUDICIAL MEMBER) AHMEDABAD THE 18 TH DAY OF JANUARY 201 6 PBN/* ITA NO S . 350 351 352 & 353 / RJT/201 5 & C.O. NOS.50 51 52 & 53/RJT/2015 ASSESSMENT YEAR S : 20 1 1 - 12 TO 2014 - 15 PAGE 14 OF 14 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT