SPRITE INVESTMENT P.LTD, MUMBAI v. DCIT 13(2)(1), MUMBAI

ITA 5462/MUM/2015 | 2012-2013
Pronouncement Date: 30-11-2017 | Result: Allowed

Appeal Details

RSA Number 546219914 RSA 2015
Assessee PAN AADCM6815F
Bench Mumbai
Appeal Number ITA 5462/MUM/2015
Duration Of Justice 2 year(s)
Appellant SPRITE INVESTMENT P.LTD, MUMBAI
Respondent DCIT 13(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 30-11-2017
Assessment Year 2012-2013
Appeal Filed On 30-11-2015
Judgment Text
IN THE INC OME TAX APPELLATE TRIBUNAL E BENCH MUMBAI BEFORE SHRI R. C. SHARMA AM & SHRI SANDEEP GOSAIN JM ./ I.T.A. NO . 5462 / MUM/ 2015 ( / ASSESSMENT YEAR: 2012 - 13 ) SPRITE INVESTMENT PVT. LTD. 1 HITEXINDL ESTATE S. V. RD DAHISAR(E) MUMBAI - 400068 / VS. DCIT 13(2 )(1) MUMBAI ./ ./ PAN/GIR NO. AADCM 6815 F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SH. N. R. AGRAWAL / RESPONDENTBY : SH. V. JUSTIN / DATE OF HEARING : 04 /0 9 /201 7 / DATE OF PRONOUNCEMENT : 30/11/2017 / O R D E R PER SANDEEP GOSAIN J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 21 MUMBAI DATED 05.10.15 FOR AY 20 12 - 13 ON THE GROUNDS MENTIONED HEREIN BELOW: - 2 I.T.A. NO. 5462 /MUM/201 5 SPRITE INVESTMENT PVT. LTD. GROUND NO. 1 THE LEARNED CIT(APPEAL) ERRED IN NOT GIVING CLEAR CUT INSTRUCTIONS TO THE A.O NOT TO RECOVER THE TAX PAYABLE FROM THE APPELLANT AS TDS WAS DEDUCTED BY THE DEBTORS . GROUND NO. 2 THE LEARNED CIT (APPEAL) ERRED IN DIRECTING THE A.O TO GIVE CREDIT FOR TAX PAID BASED ON TDS RETURN FILED BY THESE PARTIES(DEBTORS) & TAXES PAID BY THEM IN CONTRAST TO JURISDICTIONAL HIGH COURT DECISION IN YASPALSAHANI VS. REKHAHAJARNAVIS ACIT 293 ITR 539 (BORN). 2 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF INVESTMENT AND FINANCIAL TRANSACTIONS. THE RETURN OF INCOME WAS FILED ON 28 - 09 - 2012 SHOWING A TOTAL INCOME OF 1 14 06 078/ - . THE ORDER OF ASSESSMENT UNDER SECTION 143(3) OF THE I NCOME TAX ACT DATED 23 - 02 - 2015 WAS PASSED BY THE AO THEREBY ASSESSING THE INCOME AT 1 14 66 660/ - . IN THE ASSESSMENT ORDER THE AO DID NOT GRANT THE CREDIT FOR TDS OF 14 863/ - ON ACCOUNT OF WRONG PAN NO QUOTED BY DEDUCTOR AND FURTHER DID NOT GRANT CR EDIT FOR TDS OF 1 18 754 ON ACCOUNT OF NON - PAYMENT BY THE DEDUCTOR. 3 I.T.A. NO. 5462 /MUM/201 5 SPRITE INVESTMENT PVT. LTD. AGGRIEVED BY THE ORDER OF THE AO ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A) AFTER CONSIDERING THE ARGUMENTS OF BOTH THE PARTIES PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A) THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US ON THE GROUND MENTIONED HEREINABOVE. GROUND NO. 1 TO 2. 3. SINCE BOTH THE GROUNDS RAISED BY THE ASSESSEE ARE INTERCONNECTED AND INTER - RELATED AND RELATE S TO CHALLENGING THE ORDER OF LD. CIT(A) IN NOT GIVING CLEAR CUT INSTRUCTIONS TO THE AO FOR NOT RECOVER ING THE TAX PAID BY THE ASSESSEE AS TDS WHICH WA S DEDUCTED BY THE DEDUCTOR. THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME THOROUGH THIS COMMON ORDE R . 4. WE HAVE HEARD COUNSEL S OF BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIALS PLACED ON RECORD AS WELL AS THE ORDER S PASSED BY THE REVENUE AUTHORIT IES . BEFORE W E DECIDE THE MERITS OF THE CASE IT IS NECESSARY TO EVALUATE THE ORDERS PASSE D BY THE L D . CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISED 4 I.T.A. NO. 5462 /MUM/201 5 SPRITE INVESTMENT PVT. LTD. BY THE ASSESSEE IN PARA NO. 6 TO 8 OF ITS ORDER. THE OPERATIVE PORTION IS CONTAINED IN PARA NO. 8 AND THE SAME IS REPRODUCED BELOW: - 8. IT IS SEEN THAT IN YASHPALSAHANI VS. REKHAHA JARNAVIS ACIT 293 ITR 539 (BORN) THE FACTS WERE THAT THE TAX HAS BEEN DEDUCTED AT SOURCE FROM THE SALARY OF THE EMPLOYEE THE BAR U/S.205 COMES INTO OPERATION AND IT IS IMMATERIAL AS TO WHETHER THE TDS HAS BEEN PAID TO THE CENTRAL GOVERNMENT OR NOT BE CAUSE ELABORATE PROVISIONS ARE MADE UNDER THE ACT FOR RECOVERY OF TDS FROM THE PERSON WHO HAS DEDUCTED SUCH TAX. IN THAT CASE THE PETITIONER HAS FURNISHED MONTHLY SLIPS AND BANK STATEMENTS TO SHOW THAT FROM HIS SALARY TAX WAS DEDUCTED AT SOURCE BY THE EMP LOYER. IN THE PRESENT CASE HOWEVER IT CANNOT VERIFIED WHETHER TDS WAS MADE BY THIS PARTY OR NOT. THERE IS NO TDS CERTIFICATE ISSUED TO THE APPELLANT AND NO SUCH CERTIFICATE IN FORM 16 IS PRODUCED. FURTHER THERE MAY BE A BAR ON RECOVERY OF TAX FROM THE TA X PAYERS BUT THE SAME DOES NOT IMPLY THAT REFUND CAN BE ISSUED WITHOUT CREDIT OF TAX APPEARING ON THE DEPARTMENT ACCOUNT. ELABORATE INSTRUCTION HAVE BEEN ISSUED BY THE BOARD HAS TO BE PROCEDURE FOR GIVING CREDIT FOR PAYMENT OF TAX. IN PARTICULAR AFTER COM PUTERIZATION OF THE TDS RETURN THE CREDIT FOR TDS IS AVAILABLE TO ASSESSEE ONLY WERE SUCH CREDIT IS SHOWN IN THE TDS RETURN FILED BY THE TAX DEDUCTOR. IN THE PRESENT 5 I.T.A. NO. 5462 /MUM/201 5 SPRITE INVESTMENT PVT. LTD. CASE IT IS NOT CLEAR WHETHER TDS RETURN WERE FILED BY THESE PARTIES AND WHETHER THEY HAVE DEDUCTED TAX AT SOURCE AND NOT PAID THE SAME TO THE GOVERNMENT ACCOUNT IS NOT ESTABLISHED FROM THE SUBMISSION OF THE APPELLANT. IT COULD QUITE HE THAT THESE PARTIES HAD CONTRACTUAL DISPUTE WITH THE APPELLANT AND THE APPELLANT IS USING THE DEPARTMENT TO M AKE RECOVERY. THERE IS NO RECORD FURNISHED OF ACTION TAKEN BY THE APEL1ANT AGAINST THESE PARTIES FOR TDS CREDIT NOT APPEARING IN ITS 26AS STATEMENT. IT IS NOTICED FROM THE FORM 26AS UPDATED TILL 12 AUG 2015 FILED BY THE AR THAT TDS IS REFLECTED AS MADE BY MADURA BIOTECH PVT. LTD. AND CITY POINT TRADING COMPANY PVT. LTD. WHAT IS THE DISCREPANCY AND ITS REASON IS HOWEVER NOT CLEAR. HOWEVER THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE FACTUAL POSITION AND GIVE CREDIT FOR TAX PAID BASED ON THE TDS RETURN F ILED BY THESE PARTIES AND THE TAXES PAID BY THEM. HE MAY COORDINATE WITH TDS SECTION FOR ASCERTAINING THE FACTUAL POSITION IN THIS REGARD. THIS GROUND IS TECHNICALLY PARTLY ALLOWED. 9. THE GROUNDS OF APPEAL NO. 3 IS IN RESPECT OF CHARGING INTEREST U/S.234B AND 234C. CHARGING OF INTEREST IS CONSEQUENCE OF THE COMPUTATION OF TAXPAYABLE AND TAX PAID BY THE ASSESSEE. IT WILL NECESSARILY FOLLOW THAT TAX PAYABLE DETERMINED BY THE ASSESSING OFFICER WILL LEAD TO INTEREST CHARGEABLE U/S.234B AND 234C. THE LEVY OF 6 I.T.A. NO. 5462 /MUM/201 5 SPRITE INVESTMENT PVT. LTD. INT EREST IS MANDATORY THEREFORE THIS GROUNDS OF APPEAL IS DISMISSED. 5. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES AND THE SUBMISSION MADE BY BOTH THE PARTIES WE FIND THAT THE LD. CIT(A) HAS RIGHTLY GIVEN SPECIFIC DIRECTIONS TO THE AO TO VERIFY THE TAX CREDIT APPEARING IN THE NAME OF THE ASSESSEE AND TO GIVE CREDIT FOR THE TAX PAID BASED ON THE TDS RETURN FILED BY THE PARTIES AND TAXES PAID BY THEM . SINCE FIND NO FAULT IN THE ORDER PASSED BY LD. CIT(A) THEREFORE THE SAME STANDS UPHOLD AND AFFIRMED. HOWEVER SINCE THE ASSESSEE HAS RELIED UPON THE JUDGMENT IN THE CASE OF YASPALSAHANI VS. REKHAHAJARNAVIS ACIT 293 ITR 539 (BORN) . WHEREIN IT HAS BEEN HELD THAT IN CASE THE TDS HAS BEEN DEDUCTED BY THE DEDUCTOR AND NOT PAID IN THAT EVENTUALITY THE SAME CANNOT BE RECOVERED FROM THE PAYEE. RESPECTFULLY FOLLOWING THE AFOREMENTIONED JUDGMENT WE FURTHER DIRECT THE AO THAT IN CASE ON THE VERIFICATION OF FACTUAL POSITION IF IT IS FOUND THAT THE TDS HAS BEEN DEDUCTED BY THE DEDUCTOR & THEN IN THAT EVENTUALITY THE SAME CANNOT BE RECOVERED FROM THE ASSESSEE. WITH THIS MODIFICATION WE 7 I.T.A. NO. 5462 /MUM/201 5 SPRITE INVESTMENT PVT. LTD. DISPOSED OF THESE GROUNDS RAISED BY THE ASSESSEE. HENCE THESE GROUNDS RAISED BY THE ASSESSEE STANDS ALLOWED. 6 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER 2017 SD/ - SD/ - (R.C. SHARMA ) / ACCOUNTANT MEMBER (SANDEEP GOSAIN) / JUDICIAL MEMBER MUMBAI ; DATED : 30 . 1 1 .201 7 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F I LE / BY ORDER . / (DY./ASSTT.REGISTRAR) / ITAT MUMBAI