The Principal,, Hisar v. ITO(TDS), Hisar

ITA 2502/DEL/2010 | 2008-2009
Pronouncement Date: 30-03-2011 | Result: Allowed

Appeal Details

RSA Number 250220114 RSA 2010
Assessee PAN RTKCO1895F
Bench Delhi
Appeal Number ITA 2502/DEL/2010
Duration Of Justice 10 month(s) 4 day(s)
Appellant The Principal,, Hisar
Respondent ITO(TDS), Hisar
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 30-03-2011
Date Of Final Hearing 30-03-2011
Next Hearing Date 30-03-2011
Assessment Year 2008-2009
Appeal Filed On 26-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : F : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER ITA NOS.2500 TO 2502/DEL/2010 ASSESSMENT YEARS : 2006-07 TO 2008-09 THE PRINCIPAL CAMPUS SCHOOL CCS HAU HISAR. PAN : RTKCO1895F VS. ITO (TDS) HISAR. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI AMRENDRA KUMAR SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER ALL THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE O RDER PASSED BY THE CIT (A) DATED 19 TH MARCH 2010 U/S 154 OF THE IT ACT 1961 (THE ACT) VIDE WHICH LEARNED CIT (A) HAS RECTIF IED HIS DIRECTIONS GIVEN IN HIS EARLIER ORDER DATED 3 RD MARCH 2010 PASSED IN APPEAL NOS.525 TO 527/HSR/08-09 ON AN APPLICATION FILED BY THE ITO TDS HISAR DATED 5 TH MARCH 2010. GROUNDS OF APPEAL IN ALL THE APPEALS A RE IDENTICAL AND APART FROM CONTESTING THE ORDER PASSED U /S 154 ON MERITS THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT RECTIFICATION ORDER HAS BEEN PASSED BY THE CIT (A) IN HASTE AND IS VIOLATIVE OF PRIN CIPLES OF NATURAL JUSTICE AS NO OPPORTUNITY HAS BEEN GIVEN BY HIM TO TH E ASSESSEE FOR REVISING THE EARLIER DIRECTIONS GIVEN IN ORDER DATED 3 RD MARCH 2010. SUCH GRIEVANCE OF THE ASSESSEE IS REPRESENTED IN GROUND N OS. 1 TO 4 AS UNDER:- 1. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEAL S) ROHTAK HAS GROSSLY ERRED IN LAW WHILE PASSING THE ORD ER U/S 250 OF THE INCOME TAX ACT 1961 WHICH IS WHOLLY UNJUS T ITA NO.2500 TO 2502/DEL/2010 2 250 OF THE INCOME TAX ACT 1961 WHICH IS WHOLLY UNJUS T UNWARRANTED AND AGAINST THE PRINCIPLES OF NATURAL JUSTIC E. 2. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS) ROHTAK HAS GROSSLY ERRED IN LAW AND IN FA CTS IN DISMISSING THE APPEALS IN A HURRIEDLY AND UNJUDICIOU SLY MANNER WHILE PASSING THE ORDER U/S 250 OF THE ACT IBID AND SAID ORDER IS NOT A SPEAKING ORDER. 3. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS) ROHTAK HAS GROSSLY ERRED IN LAW IN NOT PRO VIDING ANY OPPORTUNITY OF BEING HEARD TO THE APPELLANT WHILE PASSING ORDER U/S 154 OF THE INCOME TAX ACT 1961 IN THE INSTANT CASE. THE SAID ORDER HAS BEEN PASSED IN HASTE AND AGAINST FACTS OF THE CASE. 4. THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEALS) ROHTAK HAS GROSSLY ERRED IN LAW IN RECTIFY ING HIS ORDER PASSED U/S 250 OF THE ACT IBID AS THERE WAS NO MISTAKE WHICH COULD BE TERMED AS APPARENT FROM RECORDS AND RECTIFIED HIS ORDER SIMPLY ON THE BASIS OF A LETTER RECEIVED FROM LD. ITO (TDS) IN THE MATTER. 2. THE OTHER GROUND NOS.5 TO 9 TOUCHES THE ISSUE ON MER ITS THAT THE DIRECTIONS REVISED BY THE LEARNED CIT (A) ARE CONTRAR Y TO REPORTED DECISIONS AND FACTS OF THE CASE. 3. TO PROPERLY UNDERSTAND THE CONTROVERSY THE ASSESSING OFFICER WHILE RAISING DEMAND U/S 201(1) AND 201(1A) OF THE AC T VIDE ORDER DATED 31 ST DECEMBER 2008 HAD HELD THAT THE ASSESSEE HAD DEFAULTE D FOR NON-DEDUCTION OF TDS ON PERQUISITES VALUE U/S 17(2 )OF THE ACT READ WITH RULE 3 OF THE IT RULES. THE TAX WAS DEDUCTED BY THE ASSESSEE ON THE BASIS OF LICENSED VALUE/RATE FIXED BY THE UNIVERSIT Y. THE ASSESSING OFFICER WAS OF THE VIEW THAT EMPLOYEES OF THE ASSESSEE BE ING NOT STATE OR CENTRAL GOVERNMENT EMPLOYEES THE TDS SHOULD HAVE BEEN DEDUCTED @ 17.5% OF THE SALARY AND HENCE HE CREATE D THE DEMAND IN RESPECT OF RELEVANT FINANCIAL YEARS INVOLVED IN THE P RESENT APPEALS AS UNDER:- ITA NO.2500 TO 2502/DEL/2010 3 FINANCIAL YEAR SHORT DEDUCTION OF TAX INTEREST TOTAL 2005-06 16 562 5 588 22 150 2006-07 25 508 6 552 32 060 2007-08 24 035 3 685 27 720 4. THE OPERATIVE PORTION OF THE DIRECTIONS OF THE CI T (A) IN HIS EARLIER ORDER DATED 3 RD MARCH 2010 ARE AS UNDER:- THEREFORE ALTHOUGH IT CANNOT BE DISPUTED THAT IT IS THE A SSESSEE DUTY OF THE DDO TO DEDUCT TAX FROM THE SALARIES PAID TO THE EMPLOYEES YET IN THE CASES WHERE THE TDS COULD NOT BE DEDUCTED ON THE ACCOMMODATION DISCUSSED AFORESAID THE A.O. IS DIRECTED TO TAKE APPROPRIATE ACTION AGAINST THE EMPLOYEES WHEREVER NECESSARY ON THE BASIS OF RETURNS FILED BY TH EM FOR RESPECTIVE ASSESSMENT YEARS IN CASE THE RETURNS HAVE N OT BEEN FILED THE A.O. MAY CALL FOR THE SAME. THIS IS FOR THE PURPOSE OF EQUITY AND NATURAL JUSTICE. 5. ACCORDINGLY ALL THE APPEALS FILED BY THE ASSESSEE WER E DISMISSED. 6. AGAINST THE SAID ORDER OF THE CIT (A) ITO TDS H ISAR HAD FILED AN APPLICATION DATED 5 TH MARCH 2010 CLAIMING THEREIN THAT ITO TDS DOES NOT HAVE JURISDICTION OVER THE INDIVIDUAL EMPLOYEE A S HIS JURISDICTION IS LIMITED ONLY TO DDOS HENCE ITO TDS CANNOT TAKE ANY ACTION AGAINST THE RESPECTIVE EMPLOYEES. IF THE CONCERNED EMPLOYEE HAS ADDED THE VALUE OF PERKS OF RESIDENTIAL ACCOMMODATION IN HIS IND IVIDUAL INCOME- TAX RETURN THEN IN THAT CIRCUMSTANCE THE DDO CAN VERIFY THE INFORMATION AND PRODUCE BEFORE THE ITO TDS FOR REC TIFICATION PURPOSES AND IT WAS CLAIMED THAT DIRECTIONS GIVEN EARLIER ARE MISTAKE APPARENT FROM RECORD WHICH REQUIRES RECTIFICATION. ON SUCH AP PLICATION LEARNED CIT (A) HAS RECTIFIED THE AFOREMENTIONED OPERATIVE P ORTION AND HAS REPLACED THE FOLLOWING DIRECTION VIDE THE IMPUGNED ORDER DATED 19 TH MARCH 2010:- THE DDO IS DIRECTED TO CHECK UP HIS RECORD AND ALSO ASCERTAIN FROM THE CONCERNED EMPLOYEES WHETHER THE EMPLOYEES HAV E ADDED VALUE OF PERKS OF RESIDENTIAL ACCOMMODATION IN THEIR ITA NO.2500 TO 2502/DEL/2010 4 INDIVIDUAL INCOME TAX RETURNS AND PRODUCE EVIDENCE OF THE SAME BEFORE THE ITO (TDS) FOR RECTIFICATION PURPOSES. 7. THE RECTIFICATION SO MADE HAS BEEN CHALLENGED BY T HE ASSESSEE IN THE PRESENT APPEALS FIRSTLY BY WAY OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND SECONDLY ON MERITS. 8. NOTICE OF HEARING WAS SENT TO THE ASSESSEE. HOWEVER NONE WAS PRESENT ON THE FIXED DATE OF HEARING. AS THE MATTERS A RE SMALL WE PROCEED TO DECIDE THE PRESENT APPEALS EX PARTE QUA TH E ASSESSEE AFTER HEARING LEARNED DR. 9. LD. DR SUPPORTING THE ORDER PASSED BY THE CIT (A) SUBMITTED THAT THE KIND OF RECTIFICATION ORDER PASSED BY THE CI T (A) DOES NOT REQUIRE ANY OPPORTUNITY TO BE GIVEN TO THE ASSESSEE HE NCE HE WAS RIGHT IN PASSING THE ORDER WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE AND THUS HE SUBMITTED THAT THE ORDER OF THE CIT (A) SHOULD BE UPHELD. 10. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LEAR NED DR AND WE HAVE CAREFULLY GONE THROUGH THE EARLIER ORDER PA SSED BY THE CIT (A) DATED 3 RD MARCH 2010 AND THE IMPUGNED ORDER PASSED BY THE CIT (A) DATED 19 TH MARCH 2010 IN RESPECT OF ALL THE THREE YEARS. WE F IND JUSTIFICATION IN THE CLAIM OF THE ASSESSEE THAT IF THE D IRECTIONS GIVEN IN EARLIER ORDERS WERE TO BE MODIFIED OR RECTIFIED THE ASSESSEE WAS REQUIRED TO BE GIVEN AN OPPORTUNITY OF HEARING AS PE R THE PRINCIPLE OF NATURAL JUSTICE. WHAT HAS BEEN DONE BY THE LEARNED C IT (A) BY AMENDING HIS DIRECTIONS IS THAT HE HAS SHIFTED THE ONUS F ROM ITO TDS TO THE DDO OF THE ASSESSEE. SUCH ONUS COULD NOT BE SHIFT ED UNLESS THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF HEARING ON THIS ISSUE AS THE ASSESSEE MAY HAVE CERTAIN THINGS TO CONVEY WHICH CAN INF LUENCE THE DECISION TAKEN BY THE LEARNED CIT (A) BY WAY OF A RE CTIFICATION ORDER. THEREFORE ACCEPTING THE CLAIM OF THE ASSESSEE ON PRELI MINARY GROUNDS OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE WE REST ORE THESE APPEALS TO ITA NO.2500 TO 2502/DEL/2010 5 THE FILE OF CIT (A) WITH THE DIRECTION TO GIVE THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING ON SUCH ISSUES AND THEREAFTER PASS A SPEAKING ORDER. WE DIRECT ACCORDINGLY. AS WE ARE RESTORING T HESE APPEALS TO THE FILE OF CIT (A) WE DO NOT EXPRESS ANY OPINION ON THE MERITS WHICH WILL BE RE-ADJUDICATED BY THE LEARNED CIT (A) AFTER GIVI NG THE REASONABLE OPPORTUNITY OF HEARING AS DIRECTED EARLIER. IMPUGNE D ORDER OF CIT (A) IS SET ASIDE AND TO BE PASSED FRESHLY AS PER DIRECTIONS GIVEN ABOVE. 11. WITH THESE OBSERVATIONS THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID . THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.03.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30.03.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES