Assistant Excise & Taxation Commissioner, Dharamashala v. ITO (TDS), Palampur

ITA 1016/CHANDI/2010 | 2006-2007
Pronouncement Date: 20-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 101621514 RSA 2010
Assessee PAN PTLAI2024F
Bench Chandigarh
Appeal Number ITA 1016/CHANDI/2010
Duration Of Justice 1 month(s) 4 day(s)
Appellant Assistant Excise & Taxation Commissioner, Dharamashala
Respondent ITO (TDS), Palampur
Appeal Type Income Tax Appeal
Pronouncement Date 20-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 20-08-2010
Assessment Year 2006-2007
Appeal Filed On 16-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER ITA NOS. 1015 TO 1017/CHD/2010 ASSESSMENT YEARS: 2005-06 TO 2007-08 THE ASSISTANT EXCISE & TAXATION VS. THE ITO (TDS). COMMISSIONER KANGRA AT PALAMPUR (H.P.) DHARAMSHALA (H.P.) PAN NO. PTLAI2024F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARRY RIKHY RESPONDENT BY: SH N.K.SAINI ORDER PER SUSHMA CHOWLA JM THESE THREE APPEALS BY THE ASSESSEE ARE AGAINST TH E COMMON ORDER OF CIT(A) SHIMLA DATED 27.4.2009 RELATING TO ASSESSME NT YEARS 2005-06 TO 2007-08 AGAINST THE ORDERS PASSED UNDER SECTION 20 6C (6A) / 206C (7) OF THE I.T. ACT. ALL THESE APPEALS HAVING IDENTICAL G ROUNDS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE 2. THE COMMON GROUNDS RAISED IN ALL THE APPEALS ARE AS UNDER:- 1. THAT THE ORDER OF THE LEARNED CIT(A) SHIMLA IS DEFE CTIVE BOTH IN LAW AND FACTS OF THE CASE. 2. THAT THE LEARNED CIT(A) SHIMLA IS NOT JUSTIFIED IN UPHOLDING THE ORDER OF THE LEARNED ASSESSING OFFICE R AS THE PROVISIONS OF SECTION 206C (1C) OF THE I.T. ACT 1961 ARE NOT APPLICABLE ON THE APPELLANT AND SUCH AN ORD ER IS ERRONEOUS AND DESERVES TO BE QUASHED. 3. THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHOLDI NG THE ORDER OF LEARNED ASSESSING OFFICER PASSED U/S 206C (6A) OF THE I.T. ACT 1961 WHICH IS ERRONEOUS AND DESERV ES TO BE QUASHED AS THE SUB SECTION 206C(6A) HAS BEEN 2 INSERTED BY THE FINANCE ACT 2006 W.E.F. ASSESSMENT YEAR 2007-08. 4. THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHOLDI NG THE ORDER OF LEARNED ASSESSING OFFICER AS THE PROVISIO NS OF SECTION 206C(7) OF THE I.T. ACT 1961 REGARDING CHA RGING OF INTEREST ARE NOT APPLICABLE ON THE APPELLANT AND SUCH AN ORDER IS ERRONEOUS AND DESERVES TO BE QUASHED. 5. THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHOLDI NG THE ORDER OF THE LEARNED ASSESSING OFFICER IN VIEW OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE O F HINDUSTAN COCA COLA (P) LTD VS. CIT (293 ITR 226) A ND THE CBDT CIRCULAR NO. 275/201/95-IT(B) DATED 29.1.1997 THE DEMAND CANNOT BE CREATED AGAINST THE LICENSOR WHERE THE LICENSEES FROM WHOM THE TAX IF ANY WAS TO BE COLLECTED HAVE ALREADY PAID THE INCOME TA X AND SO ON THE SAME ANALOGY THE DEMAND CREATED AGAIN ST THE APPELLANT DESERVES TO BE DELETED. 3. THE AFORESAID THREE APPEALS BY THE ASSESSEE WERE FILED AFTER A DELAY OF 367 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE PRESENT APPEALS SUPPORTED BY AF FIDAVIT OF SHRI HITESH SHARMA ASSTT. EXCISE & TAXATION COMMISSIONER KANG RA AT DHARAMSHALA (H.P.). THE CONSOLIDATED ORDER OF THE CIT(A) DATED 27.4.2009 RELATING TO ASSESSMENT YEARS 2005-06 TO 2007-08 WAS RECEIVED ON 15.5.2009. THE APPEALS BEFORE THE TRIBUNAL IN ALL THE ORDERS HAS B EEN FILED ON 16.7.2010. THE REASONS FOR DELAY IN FURNISHING THE APPEALS AFT ER A DELAY OF ABOUT ONE YEAR IS EXPLAINED AS UNDER:- 1 THAT THE LD. INCOME TAX OFFICER (TDS) PALAMPUR CONDUCTED AN INSPECTION AT THE OFFICE OF THE ASSIST ANT EXCISE AND TAXATION COMMISSIONER KANGRA AT DHARAMSHALA (H .P) ON 22.02.2008 AND PASSED THE ORDER U/S 260C(6A)/206 (7) OF THE I.T. ACT 1961 ON 29.8.2008 FOR THE FINANCIAL Y EAR 2005- 06 CREATING A DEMAND OF RS. 3 70 783/-. 2 THAT THE ASSISTANT EXCISE AND TAXATION COMMISSION ER KANGRA AT DHARAMSHALA (H.P) FILED AN APPEAL BEFORE THE LD. CIT(A) SHIMLA ON 7.10.2008 WHICH WAS DISMISSED VID E ORDER DATED 27.4.2009. 3 THAT SHRI RAJINDER BEHL ADVOCATE INFORMED VIDE H IS OFFICE LETTER NO. AK/602/09 DATED 5.5.2009 RECEIVED IN THE OFFICE OF ASSISTANT EXCISE AND TAXATION COMMISSIONE R 3 KANGRA AT DHARAMSHALA ON 12.5.2009 THAT HE WAS FILI NG AMENDED GROUNDS OF APPEAL BEFORE THE LD. CIT(A) SH IMLA FOR WHICH AMENDED GROUNDS OF APPEALS WERE ENCLOSED FOR THE SIGNATURE OF ASSISTANT EXCISE AND TAXATION COMMISSI ONER KANGRA AT DHARAMSHALA (ANNX 2). 4 THAT THE AMENDED GROUNDS OF APPEAL DULY SIGNED BY THE ASSISTANT EXCISE AND TAXATION COMMISSIONER KANGRA AT DHARAMSHALA WERE SENT BACK TO THE ADVOCATE ON THE S AME DATE 12.5.2009 (ANNX 3). 5 THAT IT CAME TO THE KNOWLEDGE OF THE DEPONENT FOR THE FIRST TIME IN THE SECOND WEEK OF NOVEMBER 2009 WHE N THE LD. INCOME TAX OFFICER PALAMPUR TELEPHONICALLY ASKED T HE ASSISTANT EXCISE & TAXATION COMMISSIONER KANGRA AT DHARAMSHALA TO DEPOSIT THE DEMAND AS THE ORDER HAD BEEN PASSED BY THE LD. CIT(A) SHIMLA AGAINST THE APPELL ANT. 6 THAT THE DEPONENT IMMEDIATELY ON THE SAME DAY CAL LED UP THE LD. COUNSEL FOR THE ASSESSEE SHRI RAJINDER B EHL TO APPRISE HIM ABOUT THE LATEST POSITION OF THE CASE A ND TO PROVIDE THE CERTIFIED COPY OF THE LD. CIT(A) ORDER. 7 THAT SHRI RAJINDER BEHL ADVOCATE APPLIED FOR A CERTIFIED COPY OF THE LD. CIT(A) SHIMLA ON 11.11.2 009. 8 THAT AFTER REPEATED REMINDERS BY SHRI RAJINDER BE HL ADVOCATE THE OFFICE OF THE LD. CIT(A) SHIMLA ISSUE D THE CERTIFIED COPY OF THE ORDER ON 13.4.2010. 9 THAT CERTIFIED COPY OF THE LD. CIT(A) SHIMLA ORD ER WAS HANDED OVER TO THE EXCISE AND TAXATION INSPECTO R (LEGAL CELL) OFFICE OF THE EXCISE AND TAXATION COMMISSION ER SHIMLA ON 17.4.2010. 10 THAT THE CERTIFIED COPY OF THE LD. CIT(A) SHIML A ORDER WAS RECEIVED THROUGH THE EXCISE AND TAXATION COMMIS SIONER HP SHIMLA IN THE O/O ASSISTANT EXCISE AND TAXATION COMMISSIONER KANGRA AT DHARAMSHALA ON 10.5.2010 WI TH A LETTER IN WHICH IT WAS DIRECTED TO CONTACT SHRI HAR RY RIKHY ADVOCATE AT CHANDIGARH ENGAGED FOR FILING APPEALS B EFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL CHANDIGA RH (ANNX .4). 11 THAT AFTER RECEIPT OF THE CERTIFIED COPY OF THE LD. CIT(A) ORDER ON 10.5.2010 THE EXCISE AND TAXATION O FFICER DHARAMSHALA WAS DIRECTED TO DO THE NEEDFUL FOR FILI NG THE APPEAL. 12 THAT IN COMPLIANCE TO THE DIRECTION THE EXCISE A ND TAXATION OFFICER DHARAMSHALA ON 13..5.2010 TELEPHO NICALLY DISCUSSED WITH SHRI HARRY RIKHY ADVOCATE CHANDIGAR H REGARDING THE FORMALITIES TO BE COMPLETED BY THE DE PARTMENT FOR FILING APPEAL. 4 13 THAT THE ASSISTANT EXCISE AND TAXATION COMMISSIO NER KANGRA AT DHARAMSHALA THEN WENT ON LEAVE FROM 17.5. 2010 UPTO 23..6.2010. 14 THAT SHRI HARRY RIKHY ADVOCATE INTIMATED TO THE EXCISE AND TAXATION OFFICER DHARAMSHALA ON 22.5.20 10 THAT THE CASE FILE WAS RECEIVED BY HIM FROM SHRI RAJINDE R BEHL ADVOCATE AND FURTHER DESIRED PAPERS BE COMPLETED AN D SENT TO HIM AT CHANDIGARH AT THE EARLIEST. 15 THAT THE DEPONENT JOINED BACK THE OFFICE ON 24.. 6.2010 AND DIRECTED THE EXCISE AND TAXATION OFFICER DHARA MSHALA TO COMPLETE ALL THE PAPERS REQUIRED FOR FILING APPE AL AND ALSO IN MEET SHRI HARRY RIKHY ADVOCATE AT CHANDIGARH. IN COMPLIANCE TO THE DIRECTION THE EXCISE AND TAXATION OFFICER DHARAMSHALA CONTACTED SHRI HARRY RIKHYY ADVOCATE A T CHANDIGARH TELEPHONICALLY WHO INTIMATED THAT THE CA SE FILE BE PRODUCED BEFORE HIM FOR PERUSAL AT CHANDIGARH ON 2.7.2010. 16 THAT AFTER COLLECTING THE DESIRED DOCUMENTS THE EXCISE AND TAXATION OFFICER DHARAMSHALA MET SHRI HARRY RI KHY ADVOCATE AT CHANDIGARH ON 2.7.2010. 17 THAT ON 2.7.10 SHRI HARRY RIKHY ADVOCATE AFTER GOING THROUGH ALL THE DOCUMENTS PREPARED THE APPEAL AND H ANDED IT OVER TO THE EXCISE AND TAXATION OFFICER DHARAMSHAL A FOR SIGNATURES AND ALSO DIRECTED TO FILE SOME MORE DOCU MENTS. 18 THAT WHILE COLLECTING THE DOCUMENTS IT WAS NOTIC ED IN THE DAIRY AND DISPATCH REGISTER OF THE OFFICE OF TH E ASSISTANT EXCISE AND TAXATION COMMISSIONER KANGRA AT DHARAMS HALA (H.P) THAT THE ABOVE SAID LD. CIT(A) ORDER WAS RECE IVED ON 15.5.2009. 19 THAT DUE TO THE DEPLOYMENT OF MAXIMUM STAFF OF T HE ASSISTANT EXCISE AND TAXATION COMMISSIONER KANGRA AT DHARAMSHALA IN THE LOK SABHA ELECTION DUTY THE DAIR Y AND DISPATCH REGISTER WERE HANDED BY AN OFFICIAL UNDER TEMPORARY MAKE SHIFT ARRANGEMENTS WHO DID NOT PUT T HE LD. CIT(A) ORDER BEFORE THE ASSISTANT EXCISE AND TAXATI ON COMMISSIONER KANGRA AT DHARAMSHALA AND THE SAME IS STILL NOT TRACEABLE. 20 THAT NOW THE DEPONENT IS FILING AN APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH O N THE FACT WAS NOT IN KNOWLEDGE OF ASSTT. EXCISE & TA XATION COMMISSIONER KANGRA AT DHARMASHA THAT THE ORDER DA TED 27.4.2009 WAS PASSED BY CIT(A) SHIMLA SO THE APPEL LANT WAS UNDER THIS BONAFIDE IMPRESSION THAT THE MATTER WAS STILL SUB-JUDICE AS SUBMITTED ABOVE. 5 4. THE LEARNED AR FOR THE ASSESSEE PRAYED FOR THE C ONDONATION OF THE DELAY IN FILING THE PRESENT APPEALS. THE AFFIDAVIT OF SHRI HITESH SHARMA ASSTT. EXCISE & TAXATION COMMISSIONER KANGRA AT DH ARAMSHALA (H.P.) DECLARING AND AFFIRMING THE ABOVE SAID REASONS FOR DELAY IN FURNISHING THE APPEALS BEFORE THE TRIBUNAL HAVE BEEN FILED IN RESP ECT OF EACH OF THE YEAR UNDER APPEAL. THE CONTENTION OF THE LEARNED AR FOR THE ASSESSEE WAS THAT THE ASSESSEE WAS PREVENTED BY A SUFFICIENT CASE FO R NOT FURNISHING THE APPEAL IN TIME AND THE DELAY IN FILING THE APPEALS MAY BE CONDONED. 5. WE FIND THAT THE SIMILAR APPLICATION FOR CONDONA TION OF DELAY IN FILING THE APPEALS AROSE BEFORE THE TRIBUNAL IN THE CASE OF ASSISTANT EXCISE & TAXATION COMMISSIONER NAHAN (H.P.) VS. ITO IN I TA NOS. 353 TO 356/CHD/2010 RELATING TO ASSESSMENT YEARS 2004-05 T O 2007-08. THE TRIBUNAL VIDE ORDER DATED 18.6.2010 OBSERVED AS UND ER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. UNDER SECTION 253 OF THE I.T. ACT 1961 IF THE ASSESSEE IS AGGRIEVED BY THE ORDER/S ENLISTED AT CL AUSE (A) TO (C) U/S 253(1) OF THE ACT HE/SHE MAY FILE AN APPEA L BEFORE THE APPELLATE TRIBUNAL AGAINST SUCH ORDER/S. THE A SSESSEE AGGRIEVED BY THE ORDER OF THE CIT(A) MAY APPEAL AG AINST SAID ORDER BY FILING AN APPEAL BEFORE THE APPELLAT E TRIBUNAL. UNDER SECTION (2) TO 253 OF THE ACT THE ASSESSING OFFICER IS ALSO AUTHORIZED TO FILE AN APPEAL BEFORE THE TRIBUN AL IF HE OBJECTS TO AN ORDER PASSED BY THE CIT(A) U/S 154 O R 250. UNDER THE PROVISIONS OF SUB SECTION (3) TO SECTION 253 OF THE ACT EVERY APPEAL SHALL BE FILED BEFORE THE TRIBUNA L WITHIN 60 DAYS OF THE DATE OF COMMUNICATION OF THE ORDER SOU GHT TO BE APPEALED AGAINST. UNDER SUB SECTION (4) BOTH THE A SSESSING OFFICER OR THE ASSESSEE IS EMPOWERED TO FILE THE CR OSS OBJECTIONS WITHIN 30 DAYS OF RECEIPT OF NOTICE OF A N APPEAL FILED AGAINST SUCH ORDER. FURTHER UNDER SUB SECT ION (5) TO SECTION 253 OF THE ACT THE TRIBUNAL IS EMPOWERED T O ADMIT AN APPEAL AND / OR CROSS OBJECTION AFTER THE EXPIR Y OF THE RELEVANT PERIOD SPECIFIED THEREIN IN CASE IT IS SAT ISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WI THIN TIME PERIOD. SECTION 263(6) OF THE ACT LAYS DOWN THE PRO CEDURE OF FILING THE APPEAL I.E. THE APPEAL IS TO BE FILED IN THE PRESCRIBED FORM AND IS TO BE VERIFIED IN THE PRESCR IBED MANNER AND IS TO BE FURTHER ACCOMPANIED BY PRESCRIB ED FEE. 6 7. UNDER THE PROVISIONS OF THE ACT I.E. SECTION 253 OF THE ACT THE PROCEDURE FOR FILING AN APPEAL BEFORE THE APPELLATE TRIBUNAL ARE PROVIDED AND THE PERIOD FOR FURNISHING THE APPEALS AGAINST THE ORDER OF THE CIT(A) ARE ALSO PR ESCRIBED WITHIN THIS SECTION. HOWEVER THE TRIBUNAL IS EMP OWERED UNDER THE PROVISIONS OF THE ACT ITSELF TO ADMIT AN APPEAL OR PERMIT FILING OF CROSS OBJECTION EVEN AFTER EXPIRY OF THE RELEVANT PERIOD WHEREIN IT IS SATISFIED THAT THER E WAS REASONABLE CAUSE FOR NOT PRESENTING THE APPEAL WITH IN PRESCRIBED PERIOD. THE ASSESSEE BEFORE US HAD FILED THE APPEALS AGAINST THE ORDER OF THE ASSESSING OFFICER FOR ALL THE YEARS IN QUESTION AND THE CIT(A) HAD DISMISSED THE APPEALS OF THE ASSESSEE VIDE ORDER DATED 15.5.2009. THE SAID ORDERS WERE SERVED UPON THE ASSESSEE I.E. ASSISTANT EXCISE AND TAXATION COMMISSIONER SIRMOUR AT NAHAN ON 27.5 .2009. THE ASSESSEE FAIRLY ADMITTED TO HAVE RECEIVED THE S AID ORDERS IN ITS OFFICE ON 27.5.2009. 6. IN THE PRESENT APPEALS THE ASSESSEE BEFORE US H AS FURNISHED THE APPEALS AFTER DELAY OF 367 DAYS. THE DELAY IN FILI NG THE PRESENT APPEALS IS ATTRIBUTED TO THE VARIOUS REASONS INCORPORATED IN T HE CONDONATION APPLICATION MOVED BY THE ASSESSEE IN TURN SUPPORTED BY AN AFFIDAVIT OF THE ASSTT. EXCISE AND TAXATION COMMISSIONER KANGRA AT DHARAMSHALA. THE ORIGINAL AFFIDAVITS FOR THE RESPECTIVE YEARS ARE AV AILABLE ON RECORD. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY A SUFFICIENT CASE FOR NOT FILING T HE APPEALS IN TIME AND ACCORDINGLY WE CONDONE THE DELAY IN FURNISHING THE APPEALS AND PROCEED TO TAKE THE APPEALS ON RECORD. 7. BOTH THE LEARNED AR FOR THE ASSESSEE AND DR FOR THE REVENUE FAIRLY CONCEDED THAT THE ISSUES ARISING IN THE PRESENT APP EALS ARE COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF ASSISTANT EXCI SE & TAXATION COMMISSIONER NAHAN (H.P.) VS. ITO IN ITA NOS. 353 TO 356/CHD/2010 (SUPRA) WHICH IN TURN FOLLOWING THE ORDER OF THE T RIBUNAL DATED 28.5.2009 IN THE CASE OF ASSTT. EXCISE AND TAXATION COMMISSIO NER BILASPUR (H.P.) IN ITA NOS 273 TO 277/CHD/2009 HAD DECIDED THE ISSUES AGAINST THE ASSESSEE. 7 8. THE ASSESSEE BEFORE US HAS RAISED GROUND NOS 1 T O 5 IN ALL THE CAPTIONED APPEALS WHICH ARE IDENTICAL TO THE GROUND OF APPEALS RAISED BEFORE THE TRIBUNAL IN ASSISTANT EXCISE & TAXATION COMMISSIONER NAHAN (H.P.) VS. ITO IN ITA NOS. 353 TO 356/CHD/2010 REL ATING TO ASSESSMENT YEARS 2004-05 TO 2007-08. THE ISSUES WERE DECIDED FOLLOWING THE RATIO LAID DOWN IN THE CASE OF ASSTT. EXCISE & TAXATION C OMMISSIONER BILASPUR (H.P.) VS. ITO (TDS) PALAMPUR IN ITA NOS. 273 TO 277/CHD/2009. WE PROCEED TO DECIDE THE PRESENT GROUNDS OF APPEAL IN TURN RELYING ON THE RATIO LAID DOWN BY US VIDE ORDER DATED 18.6.2010. 9. THE GROUND NO.1 RAISED BY THE ASSESSEE BEING GEN ERAL IS DISMISSED. 10. THE GROUND NO.2 RAISED BY THE ASSESSEE IN ALL T HE APPEALS IS AGAINST THE APPLICABILITY OF PROVISIONS OF SECTION 206C (1C ) OF THE ACT. SIMILAR ISSUE AROSE BEFORE THE TRIBUNAL IN THE CASE OF ASST T. EXCISE & TAXATION COMMISSIONER BILASPUR H.P. VS. ITO (TDS) PALAMPUR (ITA NOS. 273 TO 277/CHANDI/2009 AND ASSTT. EXCISE & TAXATION COMMIS SIONER UNA VS. ITO (TDS) PALAMPUR (ITA NOS. 293 TO 296/CHANDI/2009 ) AND WHEREIN VIDE ORDER DATED 28.5.2009 VIDE PARA 9 10 & 11 IT WAS HELD AS UNDER:- 9. ON A PERUSAL OF THE ABOVE IT IS EVIDENT THAT E VERY PERSON WHO GRANTS A LEASE OR A LICENCE OR ENTERS I NTO A CONTRACT OR OTHERWISE TRANSFERS ANY RIGHT OR INTERE ST EITHER IN WHOLE OR IN PART IN ANY PARKING LOT OR TO LL PLAZA OR MINE OR QUARRY TO ANOTHER PERSON FOR THE USE OF SUCH PARKING LOT OR TOLL PLAZA OR MINE OR QUARRY FOR THE PURPOSE OF BUSINESS SHALL AT THE TIME OF DEBITING O F THE AMOUNT PAYABLE BY THE LICENSEE OR LESSEE TO THE ACC OUNT OF THE LICENSEE OF LESSEE OR AT THE TIME OF RECEIPT OF SUCH AMOUNT FROM THE LICENSEE OR LESSEE IN CASH OR BY IS SUE OF CHEQUE OR DRAFT OR BY ANY OTHER MODE WHICHEVER IS EARLIER SHALL COLLECT FROM THE LICENSEE OR LESSEE OF ANY SUCH LICENCE LEASE OR CONTRACT A SUM EQUAL TO THE SPECIFIED PERCENTAGE AS INCOME-TAX. THE AMOUNT OF INCOME-TAX TO BE COLLECTED HAS BEEN PRESCRIBED IN THE TABLE ANNEXED TO SECTION 206C(IC) OF THE ACT. IN OTHER WORDS SECTION 206C(IC) REQUIRES COLLECTION OF TAX AT 8 SOURCE BY A PERSON WHO GRANTS A LEASE OR LICENCE WHERE THERE IS A TRANSFER OF A RIGHT OR INTEREST IN ANY P ARKING LOT OR TOLL PLAZA OR MINE OR QUARRY TO THE CONCERN ED LICENSEE OR LESSEE FOR THE PURPOSE OF BUSINESS. T HE CASE SET UP BY THE ASSESSING OFFICER IS THAT THE STATE GOVERNMENT HAS AWARDED LEASE TO COLLECT TOLL UNDER THE TOLLS ACT TO THE PRIVATE LICENSEE AND THE APPELLANT WAS REQUIRED TO COLLECT THE TAX AT SOURCE S MANDATORY B Y SECTION 206C(IC) OF THE ACT. FOR THE FINANCIAL YEA R UNDER CONSIDERATION THE ASSESSING OFFICER HAS POINTED OU T THAT THE LEASE WAS GRANTED IN FAVOUR OF M/S GULZAR AND C O. AND PAYMENTS HAVE BEEN RECEIVED FROM SUCH CONCERN A S PER ANNEXURE A OF THE ASSESSMENT ORDER. ON RECEIP T OF SUCH PAYMENTS THE ASSESSEE WAS REQUIRED TO COLLECT THE TAX IN TERMS OF SECTION 206C(IC) OF THE ACT WHICH THE ASSESSEE HAS FAILED TO DO. THEREFORE THE ASSESSEE IS IN DEFAULT. THE ASSESSEE HAS CONTENDED THAT THE PROVI SIONS OF SECTION 206C(IC) OF THE ACT ARE NOT APPLICABLE I N THE INSTANT CASE. THE REASONS FOR THE SAME HAVE NOTED BY US IN PARA 5 EARLIER. ON CONSIDERATION OF THE ARGUMEN TS PUT- FORTH BY THE ASSESSEE AND THE BARE PROVISIONS OF TH E ACT WE ARE UNABLE TO UPHOLD THE STAND OF THE ASSESSEE. QUITE CLEARLY HERE IS A CASE WHERE THE LICENSEE HAS BEEN GRANTED THE RIGHT TO COLLECT THE TOLL PAYABLE UNDER THE TOLLS ACT ON BEHALF OF THE STATE GOVERNMENT. THERE IS NO DENYING THE FACT THAT THE STATE GOVERNMENT HAS GRAN TED THE LEASE TO THE LICENSEE WHEREBY THE LICENSEE IS T O COLLECT THE TOLL AS PER THE TOLLS ACT. THE EMPHASIS LAID B Y THE APPELLANT ON THE PRESENCE OF EXPRESSION TOLL PLAZA AND FOR THE PURPOSES OF BUSINESS IN SECTION 206C(IC) IN OUR VIEW DOES NOT DEFEAT THE INVOKING OF SECTION 206C(IC) IN THE PRESENT CASE. THE CLAIM MADE OUT B Y THE APPELLANT IS THAT THE LEASE GRANTED SHOULD COVER TH E USE OF TOLL PLAZA FOR THE PURPOSE OF BUSINESS AND IN THIS CASE THERE IS NO QUESTION OF DOING ANY BUSINESS AND HENC E INAPPLICABILITY OF SECTION 20-6C(1C) OF THE ACT IN OUR VIEW THE LICENSEE OR LESSEE HERE IS UTILIZING THE TOLL PLAZA TO CONDUCT ITS BUSINESS OF COLLECTING TOLL IN TERMS OF THE RIGHT GRANTED BY THE STATE GOVERNMENT. PERTINENTLY THE LESSEE IS IN THE BUSINESS OF ASSISTING THE STATE GOVERNMENT IN COLLECTION OF TOLL. THUS THE AFORESA ID VIEW OF THE APPELLANT IS ERRONEOUS. THE MERE AWARDING O F A CONTRACT TO COLLECT TOLL BY THE STATE GOVERNMENT D OES NOT CLOTH THE LESSEE WITH THE POWER OF STATE TO COLLECT THE TAX ENSHRINED UNDER THE TOLLS ACT. THE TOLL ACT ITSELF PROVIDES A MECHANISM OF COLLECTING THE TOLL BY WAY OF SECTION 3A OF THE TOLLS ACT. FURTHER INTERPRETATI ON PLACED BY THE APPELLANT ON THE EXPRESSION TOLL PLA ZA FOR THE PURPOSES OF SECTION 206C(1C) OF THE ACT IN OUR VIEW IS ALSO TOO NARROW AND CANNOT BE ACCEPTED. 10. IN OUR CONSIDERED OPINION THE PROVISIONS OF SE CTION 206C(IC) OF THE ACT HAVE BEEN CORRECTLY INVOKED BY THE ASSESSING OFFICER WITH RESPECT TO THE IMPUGNED TRANSACTIONS AND IN THE ABSENCE OF THE ASSESSEE HAV ING 9 COLLECTED THE REQUISITE TAX AT SOURCE THE ASSESSEE HAS BEEN RIGHTLY TREATED TO BE AN ASSESSEE IN DEFAULT U /S 206C(6A) OF THE ACT. AT THIS POINT WE MAY ALSO RE FER TO THE OBSERVATION OF THE ASSESSING OFFICER IN PARA-5 OF HIS ORDER TO POINT OUT THAT THE AETC NAHAN H.P. WAS COLLECTING THE REQUISITE TAX U/S 206C(IC) OF THE AC T FOR THE FINANCIAL YEAR 2005-06 ON ACCOUNT OF TOLL COLLE CTED UNDER THE TOLLS ACT. THERE IS NO DENIAL TO THE AF ORESAID FACTUAL POINT STATED BY THE ASSESSING OFFICER. 11. FOR THE ABOVE REASONS IN SO FAR AS THE FIRST P LEA OF THE ASSESSEE REGARDING THE APPLICABILITY OF SECTION 206C(IC) OF THE ACT IS CONCERNED THE SAME IS HEREB Y DISMISSED. 11. THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS BEFORE THE TRIBUNAL IN THE AFORESAID CASES (SUPRA) AND RESPECT FULLY FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL WE HOLD THAT THE PROVISI ONS OF SECTION 206C(1C) OF THE ACT ARE APPLICABLE AND HENCE THE GR OUND NO.2 RAISED BY THE ASSESSEE IS DISMISSED. 12. THE ISSUE IN GROUND NO.3 IS AGAINST THE APPLICA BILITY OF THE PROVISIONS OF SECTION 206C (6A) OF THE ACT WHICH HA S BEEN INSERTED BY FINANCE ACT 2006 W.E.F. ASSESSMENT YEAR 2007-08. ID ENTICAL ISSUE AROSE BEFORE THE TRIBUNAL IN THE AFORESAID CASE (SUPRA) A ND THE TRIBUNAL VIDE ORDER DATED 28.5.2009 HELD AS UNDER:- 12. THE SECOND PLEA RAISED BY THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS PASSED HIS ORDER FOR THE CAPT IONED YEARS U/S 206C(6A) OF THE ACT WHICH WAS INTRODUCED BY THE FINANCE ACT 2006 W.E.F. 1.4.2007 AND THEREFORE THE IMPUGNED ORDER PASSED FOR THE FINANCIAL YEARS 2004- 05 TO 2006-07 ARE WITHOUT JURISDICTION. IT IS SUBMITTE D THAT THE ASSESSEE HAS BEE HELD TO BE AN ASSESSEE IN DEF AULT IN TERMS OF SECTION 206C(6A) OF THE ACT FOR THE FINANCIAL YEAR DURING THE PERIOD WHEN SECTION 206C( 6A) WAS NOT ON THE STATUTE. THEREFORE THE LEVY HAS TO FAIL FOR SUCH FINANCIAL YEARS FROM 2004-05 TO 2006-07. 13. ON THE OTHER HAND THE LEARNED D.R. HAS POINTED OUT THAT SECTION 206C(IC) WAS INTRODUCED W.E.F. 1.10.2004 PROVIDING FOR COLLECTION OF TAXES AT SOUR CE ON 10 GRANT OF LEASE/LICENCE OF TOLL PLAZA AND SUCH A PRO VISION COVERS ALL THE YEARS UNDER CONSIDERATION. THE ORD ER PASSED BY THE ASSESSING OFFICER IS VALID IN AS MUCH AS THE DEFAULT COMMITTED BY THE ASSESSEE WAS FOR AN AC TION PROVIDED IN SECTION 206C(IC) OF THE ACT WHICH WAS O N THE STATUTE DURING THE RELEVANT PERIOD. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. IN THE CONTEXT OF THE PRESENT CONTROVE RSY WE HAVE CAREFULLY PERUSED THE PROVISIONS OF SECTION 206C(IC) INSERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 1.10.2004. SECTION 206C(IC) PROVIDES FOR COLLECTION OF THE REQUISITE TAX AT THE TIME OF DEBI TING OF THE AMOUNT PAYABLE BY THE LICENSEE OR LESSEE TO THE ACCOUNT OF THE LICENSEE OR LESSEE OR AT THE TIME OF RECEIPT OF SUCH AMOUNT FROM THE LICENSEE OR LESSEE. SECTION 206C(2) PROVIDES FOR POWER TO RECOVER TAX B Y COLLECTION UNDER SUB-SECTION (1C) OF SECTION 206C O F THE ACT INSERTED W.E.F. 1.10.2004. SIMILARLY SUB-SEC TION (6A) OF SECTION 206C OF THE ACT HAS BEEN INSERTED W .E.F. 1.4.2007 WHICH PROVIDES THAT IF ANY PERSON RESPONS IBLE FOR COLLECTING THE WHOLE OR PART OF THE TAX OR AFTE R COLLECTING FAILS TO PAY THE TAX AS REQUIRED BY OR UNDER THIS ACT HE SHALL BE DEEMED TO BE AN ASSESSEE IN D EFAULT IN RESPECT OF SUCH TAX. IN THE CASE SET UP BY THE ASSESSEE SUB-SECTION (6A) OF SECTION 206C OF THE A CT HAS BEEN PUT ON THE STATUTE W.E.F. 1.4.2007 AND THEREFORE PRIOR TO SUCH DATE THE ASSESSEE CANNOT BE HELD TO BE AN ASSESSEE IN DEFAULT IF IT DOES NOT CO LLECT THE TAX IN ACCORDANCE WITH THE PROVISIONS OF SECTIO N 206C OF THE ACT. IN OUR VIEW THE RESPONSIBILITY O F COLLECTING THE TAX AT SOURCE IS PROVIDED IN TERMS O F SECTION 206C(IC) OF THE ACT WHICH HAS BEEN INSERTE D BY THE FINANCE (NO.2) ACT 2004 W.E.F. 1.10.2004. SEC TION 206C (6A) IN OUR VIEW IS NOT THE CHARGING SECTION SO AS TO DEFEAT THE PROVISIONS OF SECTION 206C(IC) FOR TH E PERIOD STARTING FROM 1.10.2004 UP TO 31.3.2007. TH E ASSESSING OFFICER HAS PASSED THE IMPUGNED ORDER ON 30.6.2008 AND OSTENSIBLY AT THAT TIME SECTION 206C (6A) WAS ON THE STATUTE. NOTABLY THERE IS NO PLEA THAT THE ORDER PASSED ON 30.6.2008 WAS BARRED BY LIMITATION VIS- -VIS THE FINANCIAL YEARS UNDER CONSIDERATION THEREFORE THE PLEA RAISED BY THE ASSESSEE WITH R EGARD TO THE APPLICABILITY OF SECTION 206C(6A) FOR THE IMPUGNED FINANCIAL YEARS HAS TO FAIL ESPECIALLY WH EN THE APPLICABILITY OF SECTION 206C(1C) FOR THE IMPUG NED YEARS IS NOT DISPUTED. 13. RESPECTFULLY FOLLOWING THE AFORESAID RATIO LAID DOWN BY THE TRIBUNAL IN THE CASE OF ASSTT. EXCISE & TAXATION COMMISSIONE R BILASPUR & UNA H.P. VS. ITO (TDS) PALAMPUR (SUPRA) WE UPHOLD THE APPLICATION OF 11 SECTION 206C(6A) OF THE ACT FOR THE IMPUGNED FINANC IAL YEAR IN VIEW OF THE APPLICABILITY OF SECTION 206C(IC) OF THE ACT F OR THE IMPUGNED YEARS BEING NOT DISPUTED. GROUND NO.3 RAISED BY THE ASSE SSEE IS THUS DISMISSED. 14. THE ISSUE IN GROUND NO.4 RAISED BY THE ASSESSE E IS AGAINST THE CHARGEABILITY OF INTEREST U/S 206C(7) OF THE ACT. T HE TRIBUNAL VIDE PARA 15 OF ITS ORDER IN THE CASE OF ASSTT. EXCISE & TAXATIO N COMMISSIONER BILASPUR & UNA H.P. VS. ITO (TDS) PALAMPUR (SUPRA) HELD AS UNDER:- 15. THE NEXT GROUND RAISED IS AGAINST THE CHARGEABILITY OF INTEREST U/S 206C(7) OF THE ACT. ON THIS ASPECT THE LEARNED COUNSEL FOR ASSESSEE QUITE FAI RLY CONTENDED THAT IN CASE THE ASSESSEE IS HELD LIABLE FOR COLLECTING THE REQUISITE TAX U/S 206C(IC) OF THE AC T THE NON-DEDUCTION THEREAFTER WOULD RESULT IN THE CONSEQUENTIAL LEVY OF INTEREST U/S 206C(7) OF THE A CT. IN THE INSTANT CASE HAVING HELD THAT THE ASSESSEE IS AN ASSESSEE IN DEFAULT FOR NOT HAVING COLLECTED THE RE QUISITE TAX U/S 206C(IC) OF THE ACT THE INTEREST CHARGEABL E FOR SUCH DEFAULT AS PER SECTION 206C(7) OF THE ACT IS Q UITE JUSTIFIED. 15. WE ARE IN CONFORMITY WITH THE ORDER OF THE TRIB UNAL THAT WHERE THE ASSESSEE IS HELD TO BE IN DEFAULT FOR NOT HAVING CO LLECTED THE REQUISITE TAX U/S 206C(1C) OF THE ACT THE CHARGING OF INTEREST F OR SUCH DEFAULT U/S 206C(7) OF THE ACT IS JUSTIFIED. THE GROUND OF APP EAL RAISED BY THE ASSESSEE IS DISMISSED. 16. THE LAST ISSUE RAISED BY WAY OF GROUND NO.5 IN ALL THE YEARS IS AGAINST THE RECOVERY TO BE MADE FROM THE ASSESSEE I .E. LICENSOR WHERE THE LICENSEES FROM WHOM THE TAX HAD TO BE COLLECTED HAD ALREADY PAID THE SAME. SIMILAR ISSUE ALSO AROSE BEFORE THE TRIBUNAL IN THE ABOVE SAID MATTER AND VIDE PARA 16 TO 19 OF ITS ORDER IT WAS HELD AS UNDER:- 12 16. THE LAST PLEA SET UP BY THE ASSESSEE IS THAT T HE RESPECTIVE LESSEES HAVE PAID TAXES ON THEIR INCOMES AND THEREFORE THE SAME CANNOT BE RECOVERED FROM THE ASSESSEE AGAIN IN THE GARB OF PROVISIONS OF SECTION 206C(IC) OF THE ACT. IN THIS CONNECTION RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P . LTD. VS. CIT 293 ITR 226. 17. ON THIS ASPECT THE ONLY PLEA RAISED BY THE LEA RNED D.R. WAS THAT THE REQUISITE DETAILS OF THE LESSEE H AVING PAID THE TAX WERE NOT FILED BEFORE THE ASSESSING OF FICER BUT THE COMMISSIONER OF INCOME-TAX (A) HAS DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM IN THIS REGAR D. IT WAS THEREFORE CONTENDED THAT NECESSARY RELIEF ON THIS ISSUE HAVE ALREADY BEEN GRANTED BY THE COMMISSIONER OF INCOME-TAX (A) IN PARA 5(II) OF THE IMPUGNED ORDER. 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. WE HAVE CAREFULLY CONSIDERED THE PARITY OF REASONING LAID DOWN BY THE HON'BLE APEX COURT IN TH E CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD. (SUPRA ). IN THE CASE BEFORE THE HON'BLE SUPREME COURT THE ASSESSING OFFICER HAD TREATED THE ASSESSEE IN DEFAU LT FOR NOT HAVING DEDUCTED THE REQUISITE TAX AT SOURCE U/S 194-I OF THE ACT AND THE ASSESSEE WAS CALLED UPON TO PAY THE SHORTFALL AND INTEREST ON THE AMOUNT OF TAX ALLEGE D TO BE SHORT DEDUCTED. IT WAS HELD THAT SINCE THE REC IPIENT OF INCOME WAS FOUND TO HAVE PAID THE TAXES DUE THEREFORE THE SAME COULD NOT BE RECOVERED AGAIN FR OM THE ASSESSEE. A REFERENCE WAS ALSO MADE TO THE CB DT CIRCULAR NO.275/201/95-IT(B) DATED 29.1.1997 IN THI S REGARD. 19. FOLLOWING THE AFORESAID PARITY OF REASONING IF IN THE INSTANT CASE IT IS FOUND THAT THE LICENSEE OR LESSEE IN QUESTION HAD PAID THE REQUISITE TAXES ON THE INC OME IN QUESTION FURTHER TAX CAN NOT BE RECOVERED FROM THE ASSESSEE AGAIN. WE FIND THAT THE COMMISSIONER OF INCOME-TAX (A) HAS IMPLIEDLY APPRECIATED THE AFORES AID POSITION WHILE DIRECTING THE ASSESSING OFFICER TO V ERIFY SUCH CLAIM OF THE ASSESSEE AND ALLOW RELIEF ACCORDI NGLY. NEVERTHELESS IN SO FAR AS THE CHARGING OF INTEREST U/S 206C(7) IS CONCERNED THE SAME IS LEVIABLE IN ACCORDANCE WITH LAW. WE HEREBY AFFIRM THE AFORESA ID DIRECTION OF THE CIT(A) AND FIND NO FURTHER RELIEF PERMISSIBLE TO THE ASSESSEE ON SUCH GROUND. 17. FOLLOWING THE RATIO LAID DOWN BY THE TRIBUNAL WE DIRECT THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESS EE AND IF IT IS FOUND THAT THE LICENSEE IN QUESTION HAD PAID THE REQUISITE TAX ES IN QUESTION NO 13 FURTHER TAX CAN BE RECOVERED FROM THE ASSESSEE. HOW EVER THE INTEREST U/S 206C(7) IS TO BE CHARGED IN ACCORDANCE WITH LAW. A CCORDINGLY WE DIRECT THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE AS SESSEE IN THIS REGARD AND ALLOW THE RELIEF ACCORDINGLY. THE GROUND NO.5 RAIS ED BY THE ASSESSEE IN ALL THE APPEALS IS ALLOWED FOR STATISTICAL PURPOSES . 18. IN THE RESULT APPEALS OF THE ASSESSEE ARE PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF AUGUST 2010. SD/- SD/- (G.S.PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20 TH AUGUST 2010 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR