ITO, New Delhi v. M/s. Northern India Transport Co., New Delhi

ITA 4467/DEL/2011 | misc
Pronouncement Date: 16-12-2011 | Result: Dismissed

Appeal Details

RSA Number 446720114 RSA 2011
Assessee PAN AAFFN0106P
Bench Delhi
Appeal Number ITA 4467/DEL/2011
Duration Of Justice 2 month(s) 11 day(s)
Appellant ITO, New Delhi
Respondent M/s. Northern India Transport Co., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 16-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 16-12-2011
Date Of Final Hearing 09-12-2011
Next Hearing Date 09-12-2011
Assessment Year misc
Appeal Filed On 05-10-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.D. RANJAN ACCOUNTANT MEMBER ITA NOS.4463 TO 4467/DEL/2011 ASSESSMENT YEARS : 1999-2000 TO 2003-04 ITO WARD 50(2) ROOM NO.504 5 TH FLOOR AAYAKAR BHAWAN LAXMI NAGAR NEW DELHI. VS. NORTHERN INDIA TRANSPORT CO. 8551 GULSHAN GUEST HOUSE 2 ND FLOOR ROSHANARA ROAD NEW DELHI. PAN : AAFFN0106P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH KUMAR GUPTA CA REVENUE BY : SHRI R.S. NEGI SR.DR ORDER PER BENCH ALL THESE APPEALS ARE FILED BY THE REVENUE. THEY AR E DIRECTED AGAINST THE CONSOLIDATED ORDER PASSED BY THE CIT (A) DA TED 14 TH JULY 2011 FOR THE FINANCIAL YEARS 1998-99 TO 2002-03. TH E GROUNDS OF APPEAL IN ALL THE APPEALS ARE COMMON AND READ AS UNDE R:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW THE LEARNED CIT (A) HAS ERRED IN :- 1. IN DELETING THE DEMAND RAISED U/S 201(1)/201(1A) B Y ANNULLING THE ORDER PASSED BY THE A.O. 2. IN HOLDING THAT THE PROVISIONS OF SECTION 194 C APPL Y TO ANY PAYMENT EXCEEDING RS.20000/- AND NOT TO THE AGGREGATE PAYMENT EXCEEDING RS.20 000/-. HERE THE CIT (A) FAI LED TO APPRECIATE THAT PROVISIONS OF SECTION 194C(5) ARE TO BE READ IN REFERENCE TO THE PROVISIONS OF SECTION 194C(1). ITA NOS.4463 TO 4467/DEL/2011 2 3. IN ACCEPTING THE ADDITIONAL EVIDENCE U/R 46A AS THE ASSESSEE WAS AFFORDED AMPLE OPPORTUNITIES DURING THE COURSE OF POST SURVEY PROCEEDINGS TO PRODUCE THE SAME. 4. NOT ALLOWING THE OPPORTUNITY U/R 46(A)(3) OF THE IT R ULES TO REBUT THE ADDITIONAL EVIDENCES PRODUCED BEFORE THE LD. CIT (A). 5. IN HOLDING THAT THE ORDER PASSED FOR A.Y. 1998-99 TO 2002-03 U/S 201(1)/201(1A) HAS GOT TIME BARRED BY LIMITATION WH EREAS AS PER THE AMENDED PROVISIONS OF SECTION 201 ANY ORDER PASSED PRIOR TO 31.03.2011 IN RESPECT OF SECTION 201(1)/201(1 A) IS NOT TIME BARRED BY LIMITATION AS HAS BEEN HELD IN ITA NO.1 73 & 174/DEL/2009 DATED 15.01.2010. 6. THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AMEND A NY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. A SURVEY OPERATION U/S 133A WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE SITUATED AT 8551 GULSHAN GUEST HOU SE 2 ND FLOOR ROSHNARA ROAD DELHI 110 007 TO VERIFY THE COMPLIANCE TO THE VARIOUS PROVISIONS CONCERNING THE TAX DEDUCTED AT SOURC E. DURING THE SURVEY OPERATION THE STATEMENT OF SHRI MAHENDER SINGH PARTNER OF THE FIRM WAS RECORDED ON OATH. 3. INITIALLY THE PROCEEDINGS TO VERIFY THE COMPLIAN CE WITH REGARD TO VARIOUS TDS PROVISIONS WAS CARRIED OUT BY THE DEPARTMEN T IN THE YEAR 2003 AND IN THIS REGARD VARIOUS LETTERS WERE EXCHANG ED BETWEEN THE ASSESSING OFFICER AND THE ASSESSEE. THE COPIES OF THESE LETT ERS ARE PLACED IN THE COMMON PAPER BOOK FILED BY THE ASSESSEE A T PAGES 1-24 OF THE PAPER BOOK. THE DETAILS OF THESE LETTERS ARE A S UNDER:- S.NO. PARTICULARS PAGE NOS. 1. COPY OF THE LETTER DATED 07.03.2011 TO THE A.O. 1-3 2. COPY OF THE LETTER DATED 24.02.2003 TO THE JCIT RANGE 50. 4-5 3. COPY OF THE LETTER DATED 13.03.2003 TO THE A.O. 6-8 4. COPY OF THE LETTER DATED 20.03.2003 TO THE A.O. 9-16 5. COPY OF THE LETTER DATED 31.03.2003 TO THE A.O. 17-18 6. COPY OF THE LETTER DATED 04.05.2003 TO THE A.O. 19-24 7. COPY OF THE LETTER DATED 24.02.2011 TO THE A.O. 25-26 ITA NOS.4463 TO 4467/DEL/2011 3 4. AT THE OUTSET IT CAN BE SEEN FROM THE ABOVE INDEX ANNEXED TO THE PAPER BOOK THAT UPTO ITEM NO.6 THE REFERENCE TO LETTER DATED 4 TH MAY 2003 IS MENTIONED. THE SAID ROUND WAS THE FIRST R OUND OF THE PROCEEDINGS. 5. AFTER A GAP FROM THE LAST LETTER DATED 4 TH MAY 2003 AGAIN THE PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE BY ISSUE OF SHOW CAUSE NOTICE DATED 3 RD FEBRUARY 2011 AND IT IS AFTER THE GAP OF ALMOST 8 YEARS AGAIN THE PROCEEDINGS WERE STARTED. FROM THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER IT IS DISCERNIBLE THAT THE FIRST ROUND OF THE PROCEEDINGS WAS EXISTING ON THE FILE OF THE ASSESSING OFFICER WHICH CONTAINED ALL THE DOCUMENTS FOUND DURING THE COURSE O F SURVEY PROCEEDINGS AND THE LETTERS EXCHANGED BY THE ASSESSING OF FICER AND THE ASSESSEE IN THE FIRST ROUND OF PROCEEDINGS. 6. REFERRING TO ALL THESE LETTERS EXCHANGED BETWEEN T HE ASSESSING OFFICER AND THE ASSESSEE IN THE YEAR 2003 IT IS THE CASE OF THE ASSESSEE THAT WHATEVER LEGAL DUE DEMAND AGAINST THE ASSESSEE WAS DETERMINED AND DEPOSITED BY THE ASSESSEE. HOWEVER THE PROCEEDINGS WERE NOT CONCLUDED AND DEPARTMENT AGAIN STARTED THE SECOND ROUND OF PROCEEDINGS. FROM THE RECORD EXISTING ON THE FILE OF ASSESSING OFFICER IN THE FIRST ROUND OF PROCEEDINGS I.E. IN THE YEAR 2 003 THE DETAILS WILL REVEAL THAT EACH AND EVERY ENTRY WAS EXAMINED BY THE ASSESSING OFFICER AND WHEREVER IT WAS FOUND THAT THE ASSESSEE WAS L IABLE FOR DEDUCTION OF TAX THE TAX WAS DEDUCTED THEREON AND I T WAS PAID TO THE GOVERNMENT TREASURY AND THIS FACT IS ALSO MENTIONED IN THE LETTER FILED BY THE ASSESSEE BEFORE ASSESSING OFFICER WHICH IS DATED 4 TH MAY 2003 AT PAGES 19-24 OF THE PAPER BOOK WHEREIN IT HAS BEEN MENTIONED THAT THE ASSESSEE HAS PAID A CONSOLIDATED SUM OF ` 1 67 000/- A ND THE COPIES OF RELEVANT CHALLANS ARE ALSO FILED. ITA NOS.4463 TO 4467/DEL/2011 4 7. IT IS THE CASE OF THE LEARNED AR THAT ACCORDING TO THE REQUIREMENTS OF RULE 6 F(5) THE ASSESSEE IS UNDER AN OBLI GATION TO RETAIN THE ACCOUNT DISCLOSED ONLY FOR SIX YEARS FROM TH E END OF THE RELEVANT ASSESSMENT YEAR. IT IS IN THIS MANNER THE ASSESSEE HAD WEEDED OUT THE ACCOUNT BOOKS AND WAS UNABLE TO PRODUC E THEM DURING THE COURSE OF SECOND ROUND OF PROCEEDINGS. IT IS ALSO T HE CASE OF THE LEARNED AR THAT THE FACT OF WEEDING OUT THE RECORD SHOULD NOT GO AGAINST THE ASSESSEE AS WHATEVER DETAILS WERE REQUIRED TO DETERMINE THE LIABILITY OF THE ASSESSEE TOWARDS TAX DEDUCTION AT SO URCE COULD BE ASCERTAINED FROM THE DOCUMENTS WHICH ARE EXISTED ON TH E RECORD OF THE A.O. BY WAY OF PROCEEDINGS CARRIED OUT IN THE YEAR 2 003. 8. IT IS ALSO THE CASE OF THE LEARNED AR THAT PERUSAL O F THE LETTERS EXCHANGED BETWEEN THE ASSESSEE AND THE ASSESSING OFFICER IN THE YEAR 2003 WILL REVEAL THAT THE EXACT DETERMINATION OF TH E LIABILITY OF THE ASSESSEE WAS DONE THE TAX WAS DEPOSITED AND THEREFORE L EARNED CIT (A) ON GOING THROUGH ALL THESE DOCUMENTS HAS RIGHTLY H ELD THAT THE ASSESSEE HAS DISCHARGED ITS LIABILITY FOR DEDUCTION OF TA X AND THE ASSESSING OFFICER WAS NOT RIGHT IN RAISING ANY DEMAND AGA INST THE ASSESSEE ON THAT COUNT IN THE SECOND ROUND OF PROCEEDING S. 9. IT IS ALSO THE CASE OF THE LEARNED AR THAT THE PROC EEDINGS OF SECOND ROUND INITIATED BY THE ASSESSING OFFICER HAD ALSO BECOME TIME BARRED THEREFORE ALSO LEARNED CIT (A) WAS RIGHT IN HOLDING THAT CREATION OF DEMAND WAS THE RESULT OF A TIME BARRED OR DER. HE SUBMITTED THAT PROVISO TO SUB-SECTION (3) OF SECTION 20 1 WAS INSERTED ON THE STATUTE BY THE FINANCE (NO.2) ACT 1966 W.E.F . 1.4.2010. BY THEN THE PROCEEDINGS HAD ALREADY BECOME TIME BARRED THEREFORE LEARNED CIT (A) HAS RIGHTLY HELD THAT THE RESULTANT D EMAND IS INVALID ON ACCOUNT OF TIME BARRED ORDER. ITA NOS.4463 TO 4467/DEL/2011 5 10. ON THE OTHER HAND IN THE CASE OF THE LEARNED DR THAT THE ASSESSING OFFICER HAD PASSED A VALID ORDER IN TERMS OF SUB- SECTION (3) OF SECTION 201. HE SUBMITTED THAT IN VIEW OF SUBSEQUE NT LEGISLATION BROUGHT ON THE STATUTE THE EARLIER DECISIONS VIDE WHI CH IT HAS BEEN INTIMATED THAT TIME LIMIT TO PASS ORDER WAS FOUR YEARS HAVE BECOME INAPPLICABLE. HE SUBMITTED THAT THE ASSESSEE DID NOT PR ODUCE BOOKS OF ACCOUNT THEREFORE IT COULD NOT BE ASCERTAINED THAT WHETHER THERE WERE ANY VIOLATIONS OF PROVISIONS RELATING TO TAX DEDUCTED AT SOURCE. FROM THE DETAILS EXISTING ON RECORD IT COULD NOT BE ASCERT AINED THAT THERE WAS NO VIOLATION HENCE THE ASSESSING OFFICER WAS RIGHT IN CREATING THE DEMAND AND IT HAS WRONGLY BEEN DELETED BY LEARNED CI T (A). HE SUBMITTED THAT CERTAIN ADDITIONAL DOCUMENTS WERE PROD UCED BY THE ASSESSEE THEREFORE THERE IS A VIOLATION OF RULE 46A(3) . THUS HE PLEADED THAT DEMAND HAS WRONGLY BEEN DELETED THEREF ORE THE ORDER OF CIT (A) SHOULD BE SET ASIDE AND THAT OF ASSESSING OFFICER SHOULD CONFIRMED. 11. IN THE REJOINDER IT WAS SUBMITTED BY THE LEARNED AR THAT THE ASSESSING OFFICER HAS WRONGLY CONSTRUED THE PROVISIONS OF S ECTION 194C(5) WHICH WAS NOT APPLICABLE FOR THE YEARS UNDER CONSIDERATION AND ACCORDING TO THE LAW PREVAILED FOR THE IMPUGNED FINANCIAL YEARS WHAT WAS RELEVANT TO BE SEEN WAS ONLY THAT EACH PAYMEN T MADE ON ONE SINGLE DAY TO ONE PARTY SHOULD NOT EXCEED ` 20 00 0/- AND IT WILL BE LIABLE FOR DEDUCTION OF TAX ONLY IN A CASE WHERE SUCH PAYMENT EXCEED ` 20 000/-. HE SUBMITTED THAT FROM ALL THE DETAILS EXI STING ON RECORD NONE OF THE TRANSACTIONS HAS BEEN SPECIFICALLY IDENTIFI ED BY THE ASSESSING OFFICER ON WHICH THE ASSESSEE HAS NOT DISCHARGED IT S LIABILITY FOR DEDUCTION OF TAX. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS SPECIFICALLY STATED THAT IT DOES NOT HAVE ANY RECORD O THER THAN WHAT IS PLACED ON RECORD OF THE ASSESSING OFFICER AND THEREFOR E THERE IS NO ITA NOS.4463 TO 4467/DEL/2011 6 QUESTION OF HAVING FILED ANY ADDITIONAL EVIDENCE AND THIS GROUND OF THE DEPARTMENT IS AGAINST THE FACTS OF THE CASE. 12. AT THIS JUNCTURE THE LEARNED DR WAS REQUIRED TO EXPLAIN THAT WHICH DOCUMENT CONSTITUTED ADDITIONAL EVIDENCE FILED BEFORE CIT (A). HOWEVER THE LEARNED DR COULD NOT IDENTIFY ANY SUCH EVIDENCE OR ARGUMENT WHICH CONSTITUTED ADDITIONAL EVIDENCE BEFOR E CIT (A). 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS I N THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE CAREFULLY G ONE THROUGH THE ORDER PASSED BY THE ASSESSING OFFICER U/S 201 (1)/201(1A) OF THE ACT AND ALSO THE ORDER PASSED BY THE LEARNED CIT (A). THE GROUND ON WHICH THE RELIEF HAS BEEN GIVEN BY LEARNED CIT (A) TO THE ASSESSEE ARE : (I) THE ISSUE WAS THOROUGHLY CONSIDERED IN THE FIRST ROU ND OF THE PROCEEDINGS WHEN LIABILITY OF THE ASSESSEE WAS CRYSTALLIZED AND THE DEMAND WAS DULY PAID; (II) ALL THE DETAILS WERE MADE AVAILABLE TO THE ASSESSIN G OFFICER DURING THE COURSE OF FIRST ROUND OF PROCEEDINGS. THE DETAILS BEING AVAILABLE ON THE RECORD OF THE ASSESSING OFFICER CLEARLY DESCRIBE THAT NONE OF THE INDIVIDUAL PAYMENT EXCEEDED ` 20 000/- AND THIS POSITION WAS IN ACCORDANC E WITH THE LAW APPLICABLE FOR THE RELEVANT TIME UNDER THE PROVISIONS OF SECTION 194-C; (III) THE ABSENCE OF BOOKS OF ACCOUNT DURING THE SECON D ROUND OF PROCEEDINGS CANNOT BE VIEWED AGAINST THE ASSESSEE AS ACCORDING TO RULE 6F(5) THE ASSESSEE CAN VALIDLY WEED OUT THE BOOKS OF ACCOUNT AND THEREFORE THE ASSESSEE IS NOT PRESUMED TO MAINTAIN THOSE BOOKS OF ACCOUNT. IN THAT CASE THE DETAILS AVAILABLE WITH THE ASSESSING OFFICER ON HIS F ILE WERE RELEVANT; AND ITA NOS.4463 TO 4467/DEL/2011 7 (IV) THE ORDER CONSEQUENTIAL TO THE SECOND ROUND OF T HE PROCEEDINGS WAS BARRED BY LIMITATION IN ACCORDANCE WI TH THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF NHK JAPAN REPORTED IN 305 ITR 137 (DEL). FOR THIS PURPO SE LEARNED CIT (A) HAS ALSO RELIED UPON THE DECISION OF SPECIAL BENCH OF ITAT MUMBAI IN THE CASE OF MAHINDRA & MAHINDRA REPORTED IN 122 TTJ (SB) 577. 14. SO FAR AS IT RELATES TO THE LAST GROUND THAT THE P ROCEEDINGS HAVE BECOME TIME BARRED IT IS THE CASE OF THE LEARNED DR THAT BY VIRTUE OF AMENDMENT BROUGHT INTO THE STATUTE BY FINANCE (NO.2) ACT OF 2009 WHEREBY SECTION 201 (3) WAS INSERTED W.E.F. 1 ST APRIL 2010 HAS CLEARLY DESCRIBED THAT ORDERS FOR FINANCIAL YEAR COMMENCING O N OR BEFORE 1.4.2007 CAN BE PASSED AT ANY TIME ON OR BEFORE 31 ST MARCH 2011. THEREFORE IT IS THE CASE OF THE LEARNED DR THAT LEAR NED CIT (A) HAS WRONGLY HELD THAT THE IMPUGNED ORDER WAS TIME BARRED . EVEN IF WE DO NOT GO INTO THE CORRECTNESS OF THE SUBMISSIONS OF THE LEA RNED DR OTHERWISE ALSO WE FIND THAT THERE IS NO INFIRMITY IN THE ORDER OF THE CIT (A) WHEN HE HAS HELD THAT THE LIABILITY OF THE ASSESSEE HAD BEEN CRYSTALYSED DURING THE FIRST ROUND OF PROCEEDINGS I.E. IN THE YEAR 2003 ITSELF AND THE ENTIRE DETAILS WERE AVAILABLE ON THE R ECORD OF ASSESSING OFFICER ON THE BASIS OF WHICH IT CAN BE ASCERTAINED TH AT NO INDIVIDUAL ITEM EXCEED A SUM OF ` 20 000/- WHICH WAS THE LIMIT A T THAT TIME FOR MAKING A PAYMENT AND OVERALL LIMIT WAS NOT THERE. I T HAS BEEN SHOWN BY THE LEARNED AR THAT IN RESPECT OF ITEMS REQUIRING THE DEDUCTION OF TAX UNDER 194C WERE EITHER BELOW THE LIMIT OF DEDUC TION OF TAX OR APPROPRIATE LIABILITY WAS ASCERTAINED DETERMINED AND TDS SO ASCERTAINED WAS PAID IN THE YEAR 2003 ITSELF. IF IT I S SO THEN WE FIND THAT ON MERIT THERE IS NO INFIRMITY IN THE ORDER OF THE CIT (A) VIDE WHICH IT HAS BEEN HELD THAT THE ASSESSEE DOES NOT HAVE ANY LIA BILITY OF TDS IN EXCESS OF WHAT WAS DETERMINED AND PAID DURING THE YEAR 2003. THE ITA NOS.4463 TO 4467/DEL/2011 8 REQUIRED EVIDENCE HAS BEEN PLACED ON RECORD IN THE SH APE OF LETTERS EXCHANGED BETWEEN THE ASSESSEE AND THE ASSESSING OFFICER IN THE YEAR 2003. THEREFORE FINDING NO MERIT IN THE DEPARTME NTAL APPEALS WE DISMISS ALL THE APPEALS FILED BY THE REVENUE. 15. IN THE RESULT THE APPEALS FILED BY THE REVENUE A RE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 16.12.20 11. SD/- SD/- [K.D. RANJAN] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 16.12.2011. 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