M S State Bank Of India Sib Branch Ghaziabad v. Dcit Cpc Tds Ghaziabad

1 Ita No 6118 Del 2015 In The Income Tax Appella Te Tribunal Delhi Bench E New Delhi Before Shri N K Saini Accountant Me Mber And Ms Suchitra Kamble Judi Cial Member I T A No 6118 Del 2 015 A Y 2009 10 State Bank Of India Sib Branch Navyug Market Ghaziabad Aaacs 8577 K Appellant Vs Dcit Cpc Tds Circle 1 Faridabad Respondent Appellant By Sh Neeraj Kumar Singh Ca Respondent By Sh Shiv Raj Singh Sr Dr Order Per Suchitra Kamble Jm This Appeal Has Been Filed By The Assessee Against The Order Dated 19 8 2015 Passed By Cit A Ghaziabad For Assessmen T Year 2009 10 2 The Grounds Of Appeal Are As Under That On The Fact And In The Circumstances Of The Pe Titioner Banks Branch Case The Learned Commissioner Of Income Tax Appeals Pass Order U S 250 Of Income Tax Act 1961 Before R Ectifying The Interest Demand Of Rs 1763976 On Principle Amoun T Principle Amount Is Already Deleted By Commissioner Of Income Tax Appeals Is His Order That On The Fact And In The Circumstances Of The P Etitioner Banks Date Of Hearing 20 11 2017 Date Of Pronouncement 28 12 2017 2 Ita No 6118 Del 2015 Branch Case The Learned Commissioner Of Income Tax Appeals Was Wrong In Charging Interest On Short Deduction O F Tds Amounting Rs 1763976 Principle Amount Is Alrea Dy Deleted By Commissioner Of Income Tax Appeals Is His Order The Order Made Under Section 250 Is Required Recti Fication In Respect Of Interest Amount Rs 1763976 3 Demand Of Rs 43 96 900 Was Raised Against The Assessee By Cpc Due To Short Deduction Of Tds Since The Dem And Was Raised By Cpc No Separate Order U S 201 1 Was Pas Sed By The A O The Assessee Claimed Before The A O That Due To Technical Error Tds Had Been Made 10 Instead Of 20 As Requ Ired By Law The Assessees Contention Was That Deductee Had Mad E Payment Of Taxes On All Income Earned By Them And Therefore In View Of The Decision Of Honble Supreme Court In The Case Of Hi Ndustan Coca Cola Beverages Pvt Ltd Vs Cit 293 Itr 226 Sc A Nd Therefore The Assessee Could Not Be Treated As Assessee In De Fault Opportunity Was Provided To The Assessee Vide Lette R Dated 27 07 2015 To Furnish The Documents By The A O In Response The Assessee Filed The Following Documents 1 Form No 26 Q For The F Y 2008 09 2 Details Of Challans 3 Itr Filed By Uttam Sucrotech International Pvt Ltd 4 Assessment Order Passed U S 153 A 143 3 Dated 31 03 2013 For The A Y 2009 10 Of Uttam Sucrotech Internationa L Pvt Ltd 5 P L Account Of Uttam Sucrotech In Ternational Pvt Ltd The Assessing Officer Passed Assessment Order Accor Dingly On 13 09 2014 4 Being Aggrieved By The Assessment Order The Ass Essee Filed Appeal Before The Cit A The Cit A Considered The Docume Ntary Evidence Filed Before The Assessing Officer As Well As Before The Cit A But The Cit A Partly 3 Ita No 6118 Del 2015 Allowed The Appeal Of The Assessee By Stating That The Liability Of Interest Cannot Be Absorbed And Deleted The Tax Liability 5 The Ld Ar Further Submits That The Interest Lia Bility Cannot Arise Once The Tax Liability Has Been Declared As Nil Liabilit Y The Decision Of Hindustan Coca Cola Beverages Pvt Ltd Vs Cit A 293 Itr 2 26 Honble Supreme Court Was Not Considered Into Proper Context By The Cit A As Per The Submissions Made By The Ld Ar The Ld Ar Further Submits Tha T The Cit A In The Assessees Own Case Vide Order Dated 20 1 2015 Allo Wed The Appeal Of The Assessee On The Same Ground After Considering Hindu Stan Coca Cola Beverages Pvt Ltd 6 The Ld Dr Relied Upon The Orders Of The Assessi Ng Officer And The Cit A 7 We Have Heard Both The Parties And Perused The M Aterial Available On Record The Honble Apex Court In Case Of Hindusta N Coca Cola Beverages P Ltd V Cit 293 Itr 226 Sc Held That The Payer I S Not Liable To Pay The Amount Of Short Non Deduction Of Tax U S 201 L In Cases Where The Payee Has Already Included The Relevant Income In His Total I Ncome And Paid The Tax In Such Cases The Liability To Pay Interest U S 201 L A Of The Assessee Remains And It Seems That Such Interest Is Payable Up To The Da Te On Which The Payee Has Paid The Relevant Amount Of Tax In View Of The Abo Ve Settled Position With Regard To The Liability To Pay The Amount Of Short Non Deduction By The Payer A Situation May Arise In Cases Where The Payee Has Included The Relevant Amount Of His Income In His Total Income But The P Ayee Is Not Liable To Pay Tax May Be On Account Of Losses Or For Other Valid Rea Sons Whether In Such Cases Payer Still Will Not Be Liable To Pay The Am Ount Of Short Non Deduction Of Tax Such Liability Should Not Be Enforced On The P Ayer If He Satisfies The Authority That Taxes Due Have Been Paid By The Paye E If In Such A Case The Payer Is Held Not Liable To Pay The Amount Of Short Non Deduction A Further Issue Arises As To Whether The Payer Will At All Be Liable To Pay The Interest 4 Ita No 6118 Del 2015 U S 201 L A As The Same Is Compensatory In Nature And There Is No Loss To The Revenue In Fact In Assessees Own Case The Cit A Vide Order Dated 20 1 2015 Allowed The Appeal Of The Assessee On The Same Grou Nd After Considering Hindustan Coca Cola Beverages Pvt Ltd However In The Said Order The Issue Relating To The Interest U S 201 1 201 A Was Set Aside To The A O For Recalculation The Ld Cit A Held That The Payer Is Liable To Pay The Interest Only Upto The Date The Payee Has Not Paid The Tax On The Relevant Amount Therefore The Order Of The Cit A Is Set Aside On This Issue And Matter Is Restored To The A O For This Limited Purpose I E To Work Out That The Calculation Of Interest If Any In Accordance With The Ratio La Id Down In The Case Of Hindustan Coca Cola Beverages Pvt Ltd Vs Cit Supr A 8 In The Result The Appeal Of The Assessee Is All Owed For Statistical Purposes Order Pronounced In The Open Court On 28th Decem Ber 2017 Sd Sd N K Saini Suchitra Kamble Accountant Member Judicial Mem Ber Dated 12 2017 R Naheed Copy Forwarded To 1 Appellant 2 Respondent 3 Cit 4 Cit Appeals 5 Dr Itat Assistant Registrar Itat New Delhi 5 Ita No 6118 Del 2015 Date 1 Draft Dictated On 20 11 2017 Ps 2 Draft Placed Before Author 21 11 2017 Ps 3 Draft Proposed Placed Before The Second Member 2017 Jm Am 4 Draft Discussed Approved By Second Member Jm Am 5 Approved Draft Comes To The Sr Ps Ps 29 12 2017 Ps Ps 6 Kept For Pronouncement On Ps 7 File Sent To The Bench Clerk 2 9 12 2017 Ps 8 Date On Which File Goes To The Ar 9 Date On Which File Goes To The Head Clerk 10 Date Of Dispatch Of Order