THE JAMMU & KASHMIR BANK LTD, MUMBAI v. INCME TAX OFFICER (TDS)-3(4), MUMBAI

ITA 4220/MUM/2018 | misc
Pronouncement Date: 31-08-2021 | Result: Allowed

Appeal Details

RSA Number 422019914 RSA 2018
Assessee PAN AAACT6167G
Bench Mumbai
Appeal Number ITA 4220/MUM/2018
Duration Of Justice 3 year(s) 2 month(s) 15 day(s)
Appellant THE JAMMU & KASHMIR BANK LTD, MUMBAI
Respondent INCME TAX OFFICER (TDS)-3(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 31-08-2021
Last Hearing Date 17-07-2019
First Hearing Date 26-04-2021
Assessment Year misc
Appeal Filed On 15-06-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI BEFORE SHRI SAKTIJIT DEY J UDICIAL M EMBER AND SHRI S. RIFAUR RAHMAN A CCOUNTANT M EMBER ITA NO. 4220 /MUM/2018 ASSESSMENT Y EAR: 2009 - 10 THE JAMMU & KASHMIR BANK LTD. FORT BRANCH 79 - A MEHTA HOUSE BOMBAY SAMACHAR MARG FORT MUMBAI - 400023 PAN: AAACT6167G VS. INCOME TAX OFFICER TDS - 3(4) ROOM NO. 1011 10 TH FLOOR INCOME TAX OFFICE SMT. KG MITTAL AYURVEDIC HOSPITAL BUILDING CHARNI ROAD (WEST) MUMBAI - 4000 02 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MS. USHA GAIKWAD (DR) DATE OF HEARING : 16 /08 /202 1 DATE OF PRONOUNCEMENT: 31 / 08 /202 1 O R D E R PER SAKTI JIT DEY JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 27.03.2018 OF LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) - 60 MUM BAI FOR THE ASSESSMENT YEAR 2009 - 10 . 2. WHEN THE APPEAL WAS TAKEN UP FOR HEARING NONE APPEARED ON BEHALF OF THE ASSE SSEE TO REPRESENT THE CASE. ON PERUSAL OF RECORD WE FIND THAT THE APPEAL WAS FIXED FOR HEARING ON 17.07.2019. HOWEVER NEITHER ANYONE APP EARED ON BEHALF OF THE ASSESSEE NOR ANY REQUEST F OR ADJOURNMENT WAS MADE. THEREAFTER THOUGH THE APPEAL WAS FIXED F OR HEARING ON VARIOUS OCCASIONS HOWEVER THE SITUATION DID NOT IMPROVE AND THE ASSESSEE ALWAYS REMAINED 2 ITA NO. 4220 / MUM/201 8 ASSESSMENT YEAR: 2009 - 1 0 ABSENT. THE AFORESAID FACTS CLEARLY REVEAL LACK OF INTEREST BY THE ASSESSEE IN PURSUING THE APPEAL. IN VIEW OF THE AFORESAID WE PROCEED TO DISPOSE OF TH E APPEAL EX - PA RTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND BAS ED ON MATERIALS ON RECORD. 3. THE EFFECTIVE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - 1. THAT HAVING REGARD TO THE FACTS & CIRCUMSTANCES OF THE CASE THE LD. CIT (A) HAS ERRED IN FACTS & LAWS OF THE CASE BY CONFIRMING THE ACTION OF LD. AO FOR LEVY OF INTEREST U/S 201(1A) OF THE IT ACT 1961 AMOUNTING TO RS. 273054/ - FOR ALLEGED DELAY IN DEPOSING THE TDS TO THE CREDIT OF THE DEPARTMENT WITHIN THE PRESCRIBED TIM E. 2. THAT HAVING REGARD TO THE FACTS & CIRCUMSTANCES OF THE CASE THE LD. CIT (A) 60 - MUMBAI HAS ERRED IN NOT CONSIDERING & DISTINGUISHING THE JUDGMENTS OF HONBLE GUJARAT HIGH COURT IN THE CASE OF KANGOLD (INDIA) LTD. V/S CIT (1999) 239 ITR 814 & ITAT LUC KNOW BENCH B IN THE CASE OF ICICI BANK LTD. ITA NO. 11/LKW/11. 4. BRIEFLY THE FACTS ARE THE ASSESSEE IS A BRANCH O F THE JAMMU & KASHMIR BANK LTD. AND IS ENGAGED IN THE BUSINESS OF BANKING. BASED ON THE TDS RETU RN FI LED BY THE ASSESSEE IN FORM 26Q T HE ASSESSING OFFICER (AO) INITIATED PROCEEDING UNDER SECTION 201 OF THE INCOME TAX ACT 1961. AS OBSERVED BY THE AO THE ASSESSEE DID NOT RESPOND TO THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 201(1)/201(1A) OF THE ACT. ACCORDINGLY HE PROCEEDED TO PASS ORD ER RAISING DEMAND OF RS. 3 52 670/ - COMPRISING OF TDS AND INTEREST THEREON. AGAINST THE AFORESAID ORDER PASSED BY THE AO ASSESSEE PRE FERRED AN APPEAL BEFORE LEARNED COMMISSIONER (A PPEALS). REJECTING ASSESSEES SUBMISSIONS LEARNED COMMISSIONER (APPEALS) UPHELD THE DEMAND RAISED BY THE AO. 3 ITA NO. 4220 / MUM/201 8 ASSESSMENT YEAR: 2009 - 1 0 HOWEVER TAKING NOTE OF CORRECTION STATEMENT GENERATED THROUGH SYSTEM THE DEMAND WAS REDUCED TO RS. 2 73 054/ - . 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIALS ON R ECORD. IT IS EVIDENT BEFORE THE FIRST APPELLATE AUTHORITY THE ASSESSEE HAD SUBMITTED THAT THOUGH IT HAD DEDUCTED TAX AT SOURCE AMOUNTING T O RS. 3 22 70 071/ - AND ISSUED PAYMENT ORDER NO. 085301 DATED 04.07.2008 FAVORING RESERVE BANK (RBI) OF INDIA A/C TD S TOWARDS REMITTANCE OF THE TDS AMOUNT TO THE GOVERNMENT ACCOUNT WHICH WA S DEPOS ITED WITH THE RBI ON 04.07.2008. H OWEVER IT WAS PRESENTED AND COLLECTED BY RBI ON 07.07.2008. THUS THE DELAY IN REMITTING THE TDS TO GOVERNMENT ACCOUNT WAS DUE TO RBI. AS CO ULD BE SEEN THE AFORESAID SUBMISSION OF THE ASSESSEE DID NOT FIND FAVOUR WITH LEARNED COMMISSIONER (APPEALS) . I GNORING THE FACT THAT THE ASSESSEE HAS DEPOSITED THE TDS AMOUNT THROUGH A PAY OR DER IN TIME L EARNED COMMISSIONER (APPEALS) HAS HELD THA T SINCE THE AMOUNT WAS CREDITED TO THE GOVERNMENT ACCOUNT AFTER DUE DATE THE ASSESSEE IS LIABLE FOR PAYMENT OF INTEREST UNDER SECTION 201(1A) OF THE ACT . 6. ON A READING OF SECTION 201(1A) (II) WHICH IS APPLICABLE TO THE ASSESSEE IT IS SEEN THAT INTEREST AT THE PRESCRIBED RATE WOULD BE CHARGEABLE FROM THE DATE ON WHICH SUCH TAX WAS DEDUCTED TO THE DATE ON WHICH SUCH TAX IS ACTUALLY PA ID. IF WE CONSIDER THE EXPRESSION ACTUALLY PAID IN THE CONTEXT OF THE FACTS INVOLVED I N THE PRESENT APPEAL THERE CANNOT BE ANY DOUBT THAT THE ASSESSEE HAS ACTUALLY PAID THE TDS AMOUNT WITHIN THE DUE DATE BY DEPOSING IT WITH THE RBI THROUGH A PAY ORDER. THUS THE ASSESSEE HAS DISCHARGED ITS STATUTORY OBLIGATION IN TIME. THE DELAY IN REMITTANCE TO THE GOVERNMENT ACCOUNT IS NOT 4 ITA NO. 4220 / MUM/201 8 ASSESSMENT YEAR: 2009 - 1 0 ATTRI BUTABLE TO THE ASSESSEE. THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE BEFORE LEARNED COMMISSIONER (APPEALS) CLEARLY ESTABLISHED THAT IT IS THE RBI WHO PRESENTED THE PAY ORDER FOR COLLECTION WITH DELAY . TH EREFORE SINCE THE DELAY IN REMITTANCE OF TD S TO THE GOVERNMENT A CCOUNT IS NOT BECAUSE OF ANY LA CHES OR NEGLIGENCE OF THE ASSESSEE IT CAN NOT BE SADDLED WITH INTEREST UNDER SECTION 201(1A) OF THE ACT. KEEPING IN VIEW THE AFORESAID FACTUAL POSITION THE ASSESSEE CANNOT BE TREATE D AS THE ASSESSEE IN D EFAULT UNDER SECTION 201(1) SO AS TO LEVY INTEREST UNDER SECTION 201(1A) OF THE ACT. FURTHER THE RATIO LAID DOWN BY HONBLE GUJARAT HIGH COURT IN CASE OF K ANGOLD INDIA LTD. VS. CIT (1999) 239 ITR 814 AND THE DECISION OF THE CO - ORDINATE BENCH IN CASE OF I CICI BANK LTD. VS. ACIT ITA NO. 11/LKW/2011 ALSO SUPPORT ASSESSEES CASE. IN VIEW OF THE AFORESAID WE DELETE THE ADDITION OF RS. 2 73 054/ - . GROUNDS ARE ALLOWED. 7. IN THE RESULT APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 ST AUGUST 2021 . SD/ - SD/ - ( S. RIFAUR RAHMAN ) A CCOUNTANT MEMBER (SAKTIJIT DEY) JUDICIAL MEMBER MUMBAI ; DATED: 31 / 08 /202 1 ALINDRA PS 5 ITA NO. 4220 / MUM/201 8 ASSESSMENT YEAR: 2009 - 1 0 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE . / BY ORDER //TRUE COPY// / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI