Income Tax Appellate Tribunal - Chandigarh
Dcit (Tds), Chandigarh vs M/S Punjab Infrastructure Development ... on 4 October, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ, "बी" च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, 'B', CHANDIGARH ी संजय गग , या यक सद य एवं डा. बी.आर.आर, कुमार, लेखा सद य B E F OR E S HR I S A N J A Y GA R G, J U D I C I A L M E MB E R A N D D R . B . R. R . KU M A R , AC C OU N T A N T M E M B E R M.A. Nos. 66 to 67/Chd/2019 (Arising out of ITA Nos. 1 3 5 4 t o 1 3 5 5 / C h d / 2 0 1 2 decided vide order 01.11.2018) नधा रण वष / Assessment Years : 2007-08 & 2008-09 The DCIT (TDS), M/s Punjab Infrastructure बनाम Chandigarh Development Board, SCO 33-35, Sector 34-A, Chandigarh थायी लेखा सं./PAN NO AAALP0048F / PTLP 10093G अपीलाथ /Appellant यथ /Respondent M.A. Nos. 68 to 70/Chd/2019 (Arising out of ITA Nos. 7 7 4 t o 7 7 6 / C h d / 2 0 1 3 decided vide order 01.11.2018) नधा रण वष / Assessment Years : 2009-10, 2010-11 & 2011-12 The DCIT (TDS), बनाम M/s Punjab Infrastructure Chandigarh Development Board, SCO 33-35, Sector 34-A, Chandigarh थायी लेखा सं./PAN NO. PTLP 10093G अपीलाथ /Appellant यथ /Respondent नधा रती क ओर से/Assessee by : Sh. Deepak Aggarwal राज व क ओर से/ Revenue by : Sh. Manjit Singh, CIT DR सन ु वाई क तार$ख/Date of Hearing : 08.08.2019 उदघोषणा क तार$ख/Date of Pronouncement : 04.10.2019 आदे श/Order Per Sanjay Garg, Judical Member :
The captioned Misc. Applications have been moved by the Department pleading that a mistake apparent on record has occurred in consolidated order dated 1.11.2018 of this Tribunal in dismissing the M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 2 appeals of the Revenue bearing ITA Nos. 1354 & 1355/Chd/2012 and ITA Nos. 774 to 776/Chd/2013 on the ground of tax involved being less than the prescribed monetary limit of Rs. 20 lacs by the CBDT vide Circular No. 3/2018 u/s 268 A of the Income Tax Act, 1961 (in short 'the Act').
2. It has been contended that the Department had filed the appeals before the Hon'ble Punjab & Haryana High Court against the common order of the Tribunal dated 30.09.2015. That the matter in these appeals were remanded by the Hon'ble Punjab & Haryana High Court vide combined order dated 20.12.2016 to decide the limited / main issue as to whether the assessee was liable for deduction of tax u/s 194C of the Act. However, the substantial question of law framed by the Hon'ble High Court as to 'whether the assessee was liable to pay interest u/s 201(1A) of the Act for non / late deduction of TDS', has been answered in favour of the Revenue and against the assessee. That the Tribunal vide combined order dated 01.11.2018 has dismissed the appeals on the ground that tax effect involved in these appeals was less than the prescribed limit of Rs. 20 lacs as per CBDT Circular No. 3/2018, without appreciating that the matter in these appeals was remanded back by the Hon'ble High Court for adjudication on one of the two issues involved. That the other issue involved has already been adjudicated by the Hon'ble High Court in favour of the Revenue, however, giving part relief to the assessee also, therefore, a mistake has M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 3 occurred in the order of the Tribunal in dismissing the appeals on the ground of tax effect involved as these appeals were not to be adjudicated on the original grounds of appeal taken by the Revenue. That, moreover the tax effect involved has been computed after the grant of part relief to the assessee by the Hon'ble High Court and not on the basis of original grounds of appeal of the Revenue.
Further, it has also been pleaded that a typographical error has occurred in the header on the upper right side of the order, wherein, the case name has been wrongly mentioned as "M/s Octamac Software Pvt Ltd, Chandigarh" and the ITA has also been wrongly mentioned as 'ITA No.991/Chd/2017". It has, therefore, been pleaded that the order dismissing the appeals of the Revenue due to low tax effect be recalled and the matter be adjudicated afresh.
3. We have heard the rival contentions of the Ld. Representatives of the parties and have gone through the record. The brief facts of the case are that the Assessing Officer vide orders passed u/s 201(1) / 201(1A) of the Act held that the assessee was liable to deduct tax at source in respect of certain payments made by it as per the provisions of section 194C of the Act and, accordingly, created the demand. He also created demand of interest thereupon. However, since the assessee had failed to do so, he, therefore, held the assessee in default u/s 201(1) & 201(1A) M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 4 of the Act and created demand for non-deduction of TDS as well as accrued interest thereupon.
4. The appeals filed by the assessee against the aforesaid demand created by the Assessing Officer were allowed by the CIT(A) vide separate orders dated 13.10.2012 (in ITA 1354 & 1355/Chd/2012) and 01.4.2013 (in ITA Nos.774 to 776/Chd/2013) holding that the provisions of section 194C were not applicable to the assessee's case, therefore, the assessee could not be said to be the assessee in default u/s 201 & 201(1A) of the Act. The Ld. CIT(A) did not adjudicate the alternative issue raised by the assessee in the appeals that even assuming that the assessee was liable to deduct tax at source u/s 194C of the Act, even then it was not liable to pay interest u/s 201(1A) as the payees of the amounts had filed their returns declaring nil income and, hence, no tax in fact was payable by them. The Revenue preferred appeals against the order of the CIT(A) before this Tribunal, however, this Tribunal vide consolidated order dated 30.09.2015 dismissed the captioned appeals of the Revenue but on the basis of the alternative contention of the assessee that the assessee was not liable to pay interest u/s 201(1A) of the Act as the payees of the amount had filed their returns showing nil tax effect / losses.
5. Being aggrieved by the above order of the Tribunal, the Revenue preferred appeals before the Hon'ble High Court. The Hon'ble High M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 5 Court while adjudicating the appeals bearing ITA Nos. 73, 72, 96, 75 and 74 relating to assessment years 2007-08 to 2011-12 respectively, with the main order passed in ITA No. 73 of 2016 dated 20.12.2016, decided the alternative issue in favour of the Revenue and against the assessee holding that the assessee was liable to pay interest u/s 201 (1A) of the Act. However, the Hon'ble High Court remanded the matter for adjunction on the other issue to 'whether the assessee was liable to deduct tax at source per the provisions of section 194C of the Act or not?'.
The Hon'ble High Court therefore, reversed the order of the Tribunal on the alternative contention of the assessee. Since the Tribunal had only considered the assessee's alternative contention and did not adjudicate the main contention that the provisions of section 194C of the Act were applicable at all, the Hon'ble High Court remanded the matter on this issue to the Tribunal. However, the Hon'ble High Court gave categorical findings that the question of law framed by the Hon'ble High Court in the appeals of the Revenue was answered in favour of the Revenue and against the assessee and accordingly allowed the appeals of the Revenue.
Against the order of the Hon'ble High Court, we have been told that the assessee has already filed SLPs before the Hon'ble Supreme Court. The matter in the captioned appeals, therefore, was remanded by the Hon'ble High Court for deciding one of the two issues involved in M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 6 these appeals and the other issue have already been considered and decided by the Hon'ble High Court in favour of the Revenue, though the assessee also getting some part relief therefrom.
In view of the above facts, we are of the view, that the mistake has occurred in the order of the Tribunal in dismissing these appeals on the ground of law tax effect involved. In fact, the appeals of the Revenue had already been adjudicated by the Tribunal by order dated 30.09.2015 whereupon, the appeals were preferred to the Hon'ble High Court and the Hon'ble High Court has already decided part of the issue.
The matter before the Tribunal was not for adjudication on all the original grounds taken by the Revenue in these appeals, rather, the Tribunal was directed by the Hon'ble High Court to adjudicate upon only one of the two issues involved. The original order of the Tribunal dated 30.09.2015, therefore, merged with the orders of the Hon'ble High Court. The dismissal because of the low tax effect could have been done, if the entire matter would have been before the Tribunal as per the ground raised by the Revenue against the order of the CIT(A). However, this was not so. Even the Tribunal has taken into consideration the tax effect involved after part relief granted by the Hon'ble High Court to the assessee. Under the circumstances, the dismissal of the appeals taking into consideration the tax effect involved after the adjudication given by the Hon'ble High Court and M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 7 considering the relief granted by the Hon'ble High Court was not correct and, therefore, a mistake has occurred in dismissing these appeals of the Revenue on the ground of low tax effect without appreciating the true facts of the case. These are not the cases where the entire matter had been set aside by the Hon'ble High Court for decision afresh, rather, in these cases, the matter had been remanded back to the Tribunal for adjudicating upon on the issue that was left un-adjudicated by the Tribunal while deciding the appeals of the Revenue vide order dated 30.9.2015.
In view of this, the order dated 1.11.2018 is recalled and the appeals are restored to be registered at their original number.
7. At this stage, the Ld. DR has submitted that certain other appeals of the assessee relating to the same matter have already been decided by the Tribunal against the assessee and in favour of the Revenue, therefore, since the issue in the main appeals is covered against the assessee vide order dated 29.03.2019 of this Tribunal passed in ITA Nos. 880 & 881/Chd/2013 & Ors, therefore, the main appeals may be accordingly disposed off.
We, however, are of the view that the assessee should be given an opportunity of hearing on the main appeals of the Revenue for the sake M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 8 of principle of natural justice. We, therefore, direct the registry to fix the main appeals as early as possible.
8. So far as the clerical error pointed out in the header of upper right side on the each page of the order is concerned, since the impugned order dated 1.11.2018 has already been recalled and the matter has already been directed to be heard afresh, therefore, this submission, at this stage, has become infructuous and the new header will be inscribed in the forthcoming order.
With the above observations, the captioned Misc. Applications are hereby allowed.
Order pronounced in the Open Court on 04.10.2019.
Sd/- Sd/-
( बी,आर.आर. कुमार / B.R.R. KUMAR) (संजय गग / SANJAY GARG )
लेखा सद य/ Accountant Member या यक सद य /Judicial Member
Dated : 04.10.2019
"आर.के."
आदे श क त,ल-प अ.े-षत/ Copy of the order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. आयकर आयु/त/ CIT
4. आयकर आयु/त (अपील)/ The CIT(A)
5. -वभागीय त न2ध, आयकर अपील$य आ2धकरण, च4डीगढ़/ DR, ITAT, CHANDIGARH
6. गाड फाईल/ Guard File आदे शानस ु ार/ By order, M.A. Nos. 66 to 70-Chd/2019 in ITA Nos. 1354 & 1355-Chd-2012 & 774 to776-Chd-2013- M/s Punjab Infrastructure Development Board, Chandigarh 9 सहायक पंजीकार/ Assistant Registrar