Apeejay Securities Pvt. Ltd., Kolkata v. DCIT, C.C.- III, Kolkata, Kolkata

ITA 594/KOL/2010 | 2005-2006
Pronouncement Date: 15-07-2011 | Result: Allowed

Appeal Details

RSA Number 59423514 RSA 2010
Assessee PAN AACCA1436F
Bench Kolkata
Appeal Number ITA 594/KOL/2010
Duration Of Justice 1 year(s) 3 month(s) 23 day(s)
Appellant Apeejay Securities Pvt. Ltd., Kolkata
Respondent DCIT, C.C.- III, Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 15-07-2011
Assessment Year 2005-2006
Appeal Filed On 23-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . ! '# '# '# '# /AND ' # ! ) [BEFORE HONBLE SHRI S. V. MEHROTRA AM & HONBLE S RI MAHAVIR SINGH JM] #$ #$ #$ #$ / I.T.A NO. 594/KOL/2010 %& ''( %& ''( %& ''( %& ''(/ // / ASSESSMENT YEAR: 2005-06 APEEJAY SECURITIES PVT. LTD. VS. ASSISTANT COMM ISSIONER OF INCOME-TAX (PAN-AACCA 1436 F) CENTRAL CIRCLE-III KOLKATA. (*+ /APPELLANT ) ( -*+/ RESPONDENT ) FOR THE APPELLANT: SHRI MANISH TIWARI FOR THE RESPONDENT: SHRI A. ROY . / ORDER PER MAHAVIR SINGH JM ( ' # ' # ' # ' # ! ! ! ! ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A) CENTRAL-1 KOLKATA IN APPEAL NO.05/CC-III/CIT(A) C-1/08-09 VIDE DATED 17. 01.2010. THE ASSESSMENT WAS FRAMED BY DCIT CC-III KOLKATA U/S. 143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DA TED 31.12.2007. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) NOT ALLOWING CREDIT OF ADVANCE TAX PAYMENT OF RS.4.50 LACS DEPOS ITED ON 15.3.2005. FOR THIS ASSESSEE HAS RAISED FOLLOWING THREE EFFECTIVE GROUNDS: 1) THAT THE OBSERVATION OF LD. CIT(A) THAT CREDIT FOR PAYMENT OF RS.4 50 000/- MADE ON 15.03.2005 HAS ALREADY BEEN GIVEN AGAINST TDS IS CO NTRARY TO FACTS ON RECORD SINCE THAT WOULD HAVE RESULTED IN EXCESS PAYMENT OVER ACTUAL L IABILITY OF TDS. 2)THAT THE OBSERVATION OF LD. CIT(A) THAT THE ASSES SEE CAN ALWAYS APPLY FOR REFUND BEFORE ITO(TDS) MAY BE SAID TO BE RELEVANT SINCE IT IS THE DUTY OF THE REVENUE AUTHORITY TO REFUND EXCESS PAYMENT OVER ACTUAL LIABILITY SUO MOT O. 3)THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) IS WRONG AND UNJUSTIFIED IN DISMISSING GROUND NO.3&4 WHEREIN THE APPELLANT CONTESTED A.OS ACTION TO REFUSE CREDIT FOR RS.4 50 000/- AS ADVANCE TAX. 3. THE BRIEF FACTS ARE THAT ASSESSEE WAS DENIED CRE DIT OF ADVANCE TAX PAYMENT OF RS.4.50 LACS BY IGNORING THAT THIS PAYMENT WAS MADE ON 15.3 .2005 IN DETERMINING TAXES PAYABLE U/S. 115JB OF THE ACT. THE ASSESSEE COMPANY PAID RS.4.5 0 LACS ON 15.3.2005 TOWARDS ADVANCE TAX LIABILITY FOR ASSESSMENT YEAR 2005-06 AND THIS PAYM ENT WAS MADE THROUGH CHEQUE NO.359330 2 ITA 594/K/2010 APEEJAY SECURITIES PVT. LTD. A.Y.0 5-06 DRAWN ON HDFC BANK CENTRAL PLAZA KOLKATA AND FUND S WERE TRANSFERRED BY THE BANK TO THE CENTRAL GOVERNMENT ACCOUNT ON THE SAME DATE I.E. 15 .3.2005. THE ASSESSEE COMPANY OBTAINED A CERTIFICATE FROM HDFC BANK FROM WHERE IT IS CLEAR THAT SUM OF RS.4.50 LAC CREDITED ON 15.3.2005 TO CENTRAL GOVERNMENT ACCOUNT UNDER THE H EAD 0020 VIDE SCROLL DATED 18.3.2005 AT SL. NO. 15035. THE ASSESSEE HAS ENCLOSED COPIES OF FOLLOWING DOCUMENTS: (A) XEROX COPY OF RECEIPTED CHALLAN (B) CERTIFICATE OF HDFC BANK ACCORDINGLY ASSESSING OFFICER AS WELL AS CIT(A) HA S NOT ALLOWED THE CLAIM OF ADVANCE TAX BY HOLDING AS UNDER: 4.1. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. A.R. THE A.O. HAS DISCUSSED THE REASON FOR NOT ALLOWING THE CLAIM OF RS.4 50 000/- AS ADVANCE TAX PAID. SINCE THE CREDIT OF THE PAYMENT HAS ALREADY BEEN GI VEN AS TDS PAYMENT AS PER DETAIL MENTIONED IN THE CHALLAN THE SAME CANNOT BE ALLOWED AGAIN BY THE A.O. AS ADVANCE PAYMENT. HOWEVER SINCE THERE WAS NO FURTHER TDS LI ABILITY AND EXCESS PAYMENT HAS BEEN MADE THEN THE ASSESSEE CAN ALWAYS APPLY FOR RE FUND BEFORE THE ITO TDS. ACCORDINGLY THE GROUND NO. 3 & 4 TAKEN BY THE APPEL LANT IS DISMISSED. 4. AFTER HEARING RIVAL CONTENTIONS AND GOING THROUG H FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT ASSESSING OFFICER HAS WRONGLY MENTIONE D THAT IN CHALLAN ASSESSEE HAS MENTIONED THE MINOR HEAD 0200 AND ACCORDINGLY CREDIT FOR THE PAYMENT HAS BEEN ALLOWED TO ASSESSEE AS TDS BUT THIS IS NOT A FACT. THE FACT IS THAT FOR T HE PAYMENT OF TAXES DEPARTMENT HAS PRESCRIBED TWO CHALLAN FORMS AS UNDER: ITNS-280 FOR ADVANCE TAX SELF-ASSESSMENT TAX R EGULAR ASST. TAX ETC. ITNS-281 FOR TDS/TCS WE FIND THAT THE OBSERVATION OF ASSESSING OFFICER A S WELL AS CIT(A) IS WRONG QUA FINDINGS THAT ASSESSEE MENTIONED MINOR HEAD 0200 UNDER ITNS-280 AS SUCH THERE IS NO MINOR HEAD BUT THIS MINOR HEAD APPEARS ONLY ON ITNS 281 WHICH IS INTEN DED FOR TDS/TCS. WE FIND FROM THE RECORDS AND PROVISIONS OF THE ACT THAT ITNS 280 INT ENDS FOR REGULAR TAX AND STARTS WITH PAN WHEREAS ITNS 281 INTENDS FOR TDS/TCS WHICH STARTS WITH TAX DEDUCTION ACCOUNT NO. THE ASSESSEE FILED A COMPUTER GENERATED COPIES OF BOTH ITNS 280 AND ITNS 281 BEFORE THE BENCH AND FROM THE PERUSAL OF THE SAME AND XEROX COPY OF CHALLAN OF RS.4.50 LACS SHOWS PAN AND IT IS THAT THE TAX PAYER USED ITNS 280 FOR ADVANCE TAX . IT MAY BE A MISTAKE ON THE PART OF THE REVENUE TO POST THE PAYMENT OF TDS WITH ITO-TDS WAR D BUT THIS IS CLEARLY A PAYMENT OF ADVANCE TAX. THE ASSESSEE HAS ALSO EXPLAINED THAT T DS PAYMENTS OF ASSESSEE FOR F.Y. 2004-05 RELEVANT TO ASSESSMENT YEAR 2005-06 I.E. PRESENT AS SESSMENT YEAR COMPANY HAS FILED ANNUAL RETURN U/S. 206 IN RESPECT OF TDS ON SALARY PAYMENT IN FORM NO. 24 AND TDS ON OTHER PAYMENTS IN FORM NO. 26 AND PARTICULARS OF SUCH RE TURNS ARE FILED ELECTRONICALLY ON 30.6.2005 UNDER TAN CALA0336E WHICH ARE AS UNDER: 3 ITA 594/K/2010 APEEJAY SECURITIES PVT. LTD. A.Y.0 5-06 NATURE OF RETURN AMOUNT DEDUCTION NO. OF CHALLANS TOTAL CHALLAN FORM 26 RS.16 23 990.02 45 17 37 303/- FORM 24 RS. 8 67 657.00 13 8 68 156/- WE FIND FROM THE ABOVE THAT THERE IS NO SCOPE OF AS SESSEES MISTAKE IN DEPOSITING THIS ADVANCE TAX IN TAN AS THIS IS ACTUALLY DEPOSITED IN ITNS 28 0 WHICH IS FOR ADVANCE TAX SELF ASSESSMENT TAX AND REGULAR ASSESSMENT TAX. ACCORDINGLY WE DI RECT THE ASSESSING OFFICER TO ALLOW CREDIT FOR ADVANCE TAX OF THIS RS.4 50 LACS PAID ON 15.3.2 005 FOR ASSESSMENT YEAR. 2005-06 BUT TAKE STEPS TO WITHDRAW TDS CREDIT GIVEN TO ASSESSEE. APP EAL OF ASSESSEE IS ALLOWED. 7. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED. 8. ORDER PRONOUNCED IN OPEN COURT ON 15.7.2011 SD/- SD/- . . ! ' '' ' # # # # ! (S. V. MEHROTRA (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( / / / /) )) ) DATED 15TH JULY 2011 '01 %23 4' JD.(SR.P.S.) . 5 6 76'8- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT APEEJAY SECURITIES PVT. LTD. 15 PARK S TREET KOLKATA-700 016 2 -*+ / RESPONDENT DCIT C.C.III KOLKATA. 3 . .% ( )/ THE CIT(A) KOLKATA 4. .% / CIT KOLKATA 5 . '> % / DR KOLKATA BENCHES KOLKATA -6 / TRUE COPY .%?/ BY ORDER #3 /ASSTT. REGISTRAR .