Bharat Heavy Electricals Ltd.- HEEP, Haridwar v. DCIT (TDS), Dehradun

ITA 4675/DEL/2015 | 2013-2014
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 467520114 RSA 2015
Assessee PAN AAACB4146P
Bench Delhi
Appeal Number ITA 4675/DEL/2015
Duration Of Justice 16 day(s)
Appellant Bharat Heavy Electricals Ltd.- HEEP, Haridwar
Respondent DCIT (TDS), Dehradun
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-07-2015
Assessment Year 2013-2014
Appeal Filed On 15-07-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI H.S. SIDHU: JUDICIAL MEMBER STAY APPLICATION NOS. 384 385 386 & 387/DEL/2015 (IN ITA NOS. 4675 4676 4677 & 4678/DEL/2015) ASSTT. YRS: 2013-14 & 2014-15 AND ITA NOS. 4675 4676 4677 & 4678/DEL/2015 ASSTT. YRS: 2013-14 & 2014-15 BHARAT HEAVY ELECTRICALS LTD. VS. DCIT(TDS) BHEL RANIPUR HASRDWAR. DEHRADUN. PAN: AAACB 4146 P ( APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI LAKSHMISH KANT CA DEPARTMENT BY : SHRI J.P. CHANANA/ SR. DR DATE OF HEARING : 31/07/2015. DATE OF ORDER : 31/07/2015. O R D E R PER S.V. MEHROTRA A.M: THE CAPTIONED APPEALS AND STAY PETITIONS PREFERRED BY THE ASSESSEE FOR AYS 2013-14 & 2014-15 WERE HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY THIS COMPOSITE ORDER FOR THE SAKE OF CONVENIENCE. 2 2. THE ASSESSEE HAS PREFERRED THESE STAY PETITIONS AND APPEALS AGAINST THE ORDER OF CIT(A) DEHRADUNS ORDER DATED 1-7-2015 REJECTI NG THE ASSESSEES STAY PETITIONS FOR STAYING THE OUTSTAND DEMAND. THE APPEALS ARE S TILL PENDING WITH THE LD. CIT(A) ON MERITS. 3. THE STAY PETITIONS WERE EARLIER HEARD ON 24-7-20 15 BUT WERE RE-FIXED FOR HEARING ALONG WITH APPEALS BECAUSE IN APPEALS THE ASSESSEE HAD ASSAILED THE ORDER OF LD. CIT(A) REJECTING ITS STAY PETITIONS. SINCE T HE ISSUES IN THE STAY PETITIONS AND IN APPEALS OF ASSESSEE ARE COMMON THEREFORE IT WA S CONSIDERED NECESSARY TO HEAR THE APPEALS ALSO ALONG WITH THE STAY PETITIONS. 4. WE PROCEED TO DECIDE THE APPEALS FIRST. IN ITS A PPEALS THE ASSESSE HAS RAISED FOLLOWING COMMON GROUNDS: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE THE LEARNED CIT (A) HAS SERIOUSLY ERRED BOTH IN LAW AND ON FACTS - (I) IN REJECTING THE STAY PETITION OF THE APPELLAN T MADE AGAINST THE DEMAND RAISED BY THE ASSESSING OFFICER VIDE ITS ORDER DATED 17.03.2015 PASSED UNDER SECTION 201 (1) & 201(1A) READ WITH SECTION 194C OF THE INCOME TA X ACT 1961; (II) IN HOLDING THAT THE APPELLANT HAS NOT BEEN ABL E TO MAKE OUT ANY CASE FOR GRANTING ANY LENIENCY IN THE MATTER OF STAY ON DEMAND RECOVERY; (III) IN NOT APPRECIATING ON THE ASPECT OF STRONG P RIMA FACIE CASE ALONG WITH THE BALANCE OF CONVENIENCE IN APPELLANT'S FAVOR AS PRECIOUSLY SUBMITTED BEFORE T HE CIT(A). 3 2 . THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN RE JECTING THE STAY PETITION WITHOUT THE ASSESSEE BEING HEARD OR WITHOUT GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW THE APPELLANT IS ENTITLED FOR THE STAY OF DEMA ND UNTIL THE DISPOSAL OF APPEAL BY THE CIT(A). 4. THAT THE APPELLANT PRAYS TO BE ALLOWED THE PERMI SSION TO SUBMIT FURTHER EVIDENCE/JUDGMENTS/WRITTEN SUBMISSIO NS AT THE TIME OF HEARING BEFORE THE BENCH OF ITAT. 5. LD. COUNSEL POINTED OUT THAT THE APPEALS FILED A GAINST REJECTION OF STAY ORDER ARE MAINTAINABLE BEFORE THE TRIBUNAL IN VIEW OF THE ITAT DELHI BENCH F ORDER DATED 10-4-2015 IN ITA NOS. 1766 TO 1768/DEL/2015 FOR AYS 2011-12 TO 2013-14 AND SA NOS. 242 TO 244/DEL/2015 IN THE CASE OF EMPL OYEES PROVIDENT FUND VS. ADDL. CIT(TDS) GHAZIABAD WHEREIN IT HAS BEEN HELD THAT THE ORDER PASSED IN A STAY PETITION BY LD. CIT(A) IS AN ORDER PASSED U/S 250 OF THE I.T. ACT AND ACCORDINGLY THE APPEAL IS MAINTAINABLE UNDER CLAUS E (A) OF SUB-SECTION (1) OF SECTION 253. 6. THE OUTSTANDING DEMANDS SOUGHT TO BE STAYED BY THE ASSESSEE AS PER STAY PETITIONS ARE AS UNDER: STAY NO. 384/DEL/15 (AY 2013-14) = RS.59 18 513.0 0 STAY NO. 385/DEL/15 (AY 2014-15) = RS.21.17.618.0 0 STAY NO. 386/DEL/15 (AY 2013-14) = RS.1 53 78 361 .00 STAY NO. 387/DEL/15 (AY 2014-15) = RS.1 05 83 058 .00 7. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PUBLIC SECTOR UNDERTAKING. A SURVEY WAS CONDUCTED AT THE PREMISES OF THE ASSESS EE ON 17-3-2015 BY THE INCOME-TAX DEPARTMENT DEHRADUN FOR VERIFICATION OF THE TDS. THE AO HAD ISSUED SHOW CAUSE NOTICE DATED 17-3-2015 FOR NON-DEDUCTION OF TAX AT SOURCE RELATING TO 4 THE PAYMENTS MADE UNDER THE HEAD TRANSPORT CHARGES . THE AO DISMISSED THE CLAIM OF THE ASSESSEE AND PASSED ORDER DATED 17.3.2 015 U/S 201(1)/201(1A) READ WITH SEC. 194C OF THE INCOME-TAX ACT BY TREATING TH E ASSESSEE IN DEFAULT FOR NON- DEDUCTION OF TAX AT SOURCE RELATING TO THE PAYMENTS MADE UNDER THE HEAD TRANSPORT CHARGES. 8. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) DEHRADUN ON 20-4-2015 WHICH IS PENDING. THE APPLICATION FOR STAY OF DEMAN D MADE U/S 220(6) OF THE I.T. ACT WAS REJECTED BY THE AO VIDE ITS ORDER DATED 30- 4-2015 WITH THE DIRECTION TO DEPOSIT THE ENTIRE DEMAND BY 15-5-2015. AFTER THAT THE ASSESSEE PRAYED THE HONBLE UTTRAKHAND HIGH COURT FOR SEEKING STAY AGAINST REC OVERY OF OUTSTANDING DEMAND PURSUANT TO IMPUGNED ASSESSMENT ORDER DATED 17-3-20 15. HOWEVER THE HONBLE UTTRAKHAND HIGH COURT VIDE ORDER DATED 7-5-2015 DIS MISSED THE ASSESSEES WRIT PETITION GIVING LIBERTY TO ASSESSEE TO APPROACH THE APPELLATE AUTHORITY FOR STAY OF RECOVERY OF TAX INTER ALIA AFTER MAKING FOLLOWIN G OBSERVATIONS:- SINCE THE QUESTION ABOUT LEGALITY AND CORRECTNESS OF THE ASSESSMENT ORDER IS PENDING DISPOSAL BEFORE APPELLA TE AUTHORITY THEREFORE I AM NOT INCLINED TO LOOK INT O THE QUESTION OF CORRECTNESS AND LEGALITY OF THE IMPUGNED ASSESSM ENT ORDER THEREFORE ANY RECOVERY SOUGHT TO BE MADE PURSUANT TO THE IMPUGNED ASSESSMENT ORDER SHOULD NOT BE STAYED BY THIS COURT BY DIRECTLY ENTERTAINING THE WRIT PETITIONS. PETITI ONER FIRST OF ALL SHOULD APPROACH THE APPELLATE AUTHORITY FOR STAY OF RECOVERY OF TAX AND CONSEQUENT PENALTY PURSUANT TO THE IMPUGNE D ASSESSMENT ORDER. 9. ACCORDINGLY THE ASSESSEE FILED STAY PETITION BE FORE THE LD. CIT(A) WHO VIDE IMPUGNED ORDER DATED 1-7-2015 REJECTED THE ASSESSEE S STAY PETITION. HENCE THE PRESENT APPEALS HAVE BEEN FILED BY ASSESSEE AGAINST SUCH REJECTION ORDER. 10. ON MERITS IT IS SUBMITTED THAT THE DEMAND HAS B EEN RAISED IN UTTER CONTRADICTION TO THE PLAIN AND EXPLICIT PROVISIONS OF SEC. 194C(6) OF THE I.T. ACT. IT 5 IS SUBMITTED THAT ASSESSEE HAD ENGAGED VARIOUS TRAN SPORT CONTRACTORS FOR TRANSPORTATION IN CONNECTION WITH ITS BUSINESS RE QUIREMENT. LD. COUNSEL FURTHER POINTED OUT THAT THE ITAT DELHI BENCH A IN THE C ASE OF BHEL JHANSI VIDE ITS ORDER DATED 19-6-2015 IN ITA NOS. 130 TO 135/DEL/20 15 FOR AYS 2010-11 TO 2015- 26 UNDER SIMILAR CIRCUMSTANCES HAS REFRAINED THE REVENUE AUTHORITIES TO TAKE ANY COERCIVE ACTION AGAINST THE ASSESSEE TILL THE PASSI NG OF THE ORDER BY THE CIT(A) ON MERITS. LD. COUNSEL FURTHER POINTED OUT THAT THE BA NK ACCOUNTS OF THE ASSESSEE HAVE BEEN ATTACHED AND REQUESTED FOR LIFTMENT OF THE ATT ACHMENT ORDER. 11. LD. DR SUBMITTED THAT THE ASSESSEE IS A CASH RI CH COMPANY AND THEREFORE SHOULD PAY THE OUTSTANDING DEMAND. HE SUBMITTED THA T ASSESSEE IS RESORTING TO MULTIPLICITY OF PROCEEDINGS BY FILING STAY PETITION S AT VARIOUS STAGES OF PROCEEDINGS. 12. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORD OF THE CASE. WE FIND THAT LD. CIT(A) HAS REJECTED THE ASSESSEES STAY PETITION VIDE ORDER DATED 1-7-2015 PRIMARILY FOR TH E REASONS THAT THE ASSESSEE NOWHERE PLEADED FOR GRANT OF STAY ON RECOVERY OF DE MAND ON THE GROUND OF FINANCIAL HARDSHIP. THE ASSESSEE HAD SOLELY RELIED ON LEGAL ARGUMENTS TO CANVASS THE POINT THAT EITHER THERE WAS NO LIABILITY TO DEDUCT TAX AT SOURCE ON TRANSPORTERS OR HE COULD TAKE SHELTER UNDER THE FIRST PROVISO TO SECTI ON 201(1) OF THE ACT. 13. LD. CIT(A) REFERRED TO CBDT INSTRUCTION NO. 191 4 DATED 2-12-1993 AND POINTED OUT THAT ASSESSEE HAD NOT PUT-FORTH ANY JUD ICIAL PRECEDENT WHICH COULD HAVE EITHER BINDING FORCE OR PERSUASIVE VALUE IN PRIMA FACIE CONSIDERING THE IMPUGNED ISSUE IN FAVOUR OF THE ASSESSEE. HE FURTHER OBSERVE D THAT ANY EXERCISE AMOUNTING TO GATHERING DOCUMENTS IN FAVOUR OF THE ASSESSEE WHICH WERE NOT BEFORE THE AO WOULD NECESSARILY MEAN THAT THE ISSUE WOULD NEED TO BE CONSIDERED UNDER THE EXPRESS PROVISIONS OF RULE 46A OF THE I.T. RULES AN D THUS WOULD NOT AUTOMATICALLY AMOUNT TO ANY DECISION IN FAVOUR OF T HE ASSESSEE HOWSOEVER GOOD THE QUALITY OF EVIDENCE MIGHT BE. 6 14. FROM THESE OBSERVATIONS IT IS EVIDENT THAT THE ASSESSEES PLEA REGARDING APPLICABILITY OF SEC. 194C(6) HAS NOT AT ALL BEEN C ONSIDERED BY LD. CIT(A) WHICH IN OUR OPINION MAKES OUT A PRIMA FACIE CASE IN FAVOUR OF ASSESSEE. LD. CIT(A) HAS ALSO MADE OBSERVATIONS WITH REFERENCE TO RULE 46A WHICH ALSO MAKE OUT A PRIMA FACIE CASE IN FAVOUR OF ASSESSEE. THE PLEA OF ASSES SEE HAS NOT YET BEEN TESTED BY APPELLATE AUTHORITY. 15. UNDER SIMILAR CIRCUMSTANCES WE FIND THAT THE I TAT IN THE CASE OF BHEL JHANSI (SUPRA) IN PARA 4 OF ITS ORDER HAS OBSERVED AS UNDER: 4. BOTH THE LD. AR AND THE SR. DR HAVE BEEN HEARD. CONSIDERING THE FACT THAT THE ISSUE ON MERITS IS YE T TO BE DECIDED BY THE CIT(A) AND BEING OF THE VIEW THAT THE FINDIN GS ARRIVED AT IN PARA 5 HAVE NOT TAKEN INTO CONSIDERATION THE REL EVANT CRITERIA FOR DECIDING THE ISSUE NAMELY THE EXISTENCE OF PRIM A FACIE ARGUABLE CASE IN FAVOUR OF ASSESSEE OR NOT; IRREPAR ABLE LOSS IF ANY AND THE FINANCIAL POSITION OF THE ASSESSEE ETC. AS NO REFERENCE TO THESE SETTLED LEGAL PARAMETERS IS FOUN D MENTIONED IN THE ORDER. IT ALSO SEEN THAT THE MERITS OF THE O RDER OF THE ASSESSING OFFICER TILL DATE HAVE NOT BEEN TESTED BY ANY APPELLATE AUTHORITY. THUS IN THESE PECULIAR FACTS AND CIRCUMSTANCES WE DIRECT THE REVENUE AUTHORITIES FR OM REFRAINING TO TAKE ANY COERCIVE ACTION AGAINST THE ASSESSEE TILL THE PASSING OF THE ORDER OF THE CIT(A) ON MERITS. I N VIEW OF THE SAME THE LD. CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER IN THE APPEALS ON MERIT AFTER GIVING THE ASSESSEE A REASON ABLE OPPORTUNITY OF BEING HEARD. THE LD. SR. DR ON THE A BOVE VIEW BEING EXPRESSED BY THE BENCH INSISTED THAT A DIRECT ION TO THE ASSESSEE BE INCLUDED MANDATING THAT THE ASSESSEE SH OULD CO- OPERATE IN ENSURING THAT THE HEARING TAKES PLACE. I N THE FACT OF THE INSISTENCE OF THE LD. SR. DR LD. AR MR. PIYUS H KAUSHIK GAVE AN ORAL UNDERTAKING ON BEHALF OF HIS CLIENT BY STATING THAT THE ASSESSEE SHALL FULLY PARTICIPATE IN THE PROCEED INGS. 7 ACCORDINGLY IN VIEW OF THE ABOVE WE DIRECT:- (I) THAT THE LD. CIT(A) SHALL GIVE A REASONABLE OPPORTUNITY TO THE ASSESSEE; (II) THE ASSESSEE ON IT PART SHALL ENDEAVOUR TO G IVE FULL AND TO PROPER CO-OPERATION IN ENSURING THAT HEARING TAKES PLACE; (III) AN OUTER LIMIT OF THREE MONTHS IS GIVEN TO THE REVENUE WHICH IS CONSIDERED TO BE A REASONABLE TIME FOR THE REVENUE TO PASS A SPEAKING ORDER AFTER HEARING THE ASSESSEE. 16. RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT IN THE CASE OF BHEL JHANSI (SUPRA) THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES IN TERMS OF DIRECTIONS GIVEN IN THAT ORDER. 17. SINCE WE HAVE ALLOWED THE ASSESSEES APPEALS D IRECTING THE REVENUE AUTHORITIES REFRAINING FROM TAKING ANY COERCIVE ACT ION AGAINST THE ASSESSEE TILL THE PASSING OF ORDER BY CIT(A) ON MERITS WE DIRECT TH E AO TOLIFT THE ATTACHMENT ORDER ISSUED TO BANK U/S 226(3) DATED 20-7-2015. 18. IN THE RESULT ASSESSEES APPEALS ARE ALLOWED F OR STATISTICAL PURPOSES AND THE STAY PETITIONS STAND DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN OPEN COURT ON 31 07 2015. SD/- SD/- (H.S. SIDHU) ( S.V. MEHROTRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31-07-2015. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT(A) 4. CIT 5. DR (ITAT)