Income Tax Appellate Tribunal - Delhi
U.P. Nigam Raebareilly Construction ... vs Department Of Income Tax
INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "H": NEW DELHI
BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
AND
SHRI A. T. VARKEY, JUDICIAL MEMBER
ITA No. 4648/Del/2013
(Assessment Year: 2009-10)
ITO (TDS) U.P. Nigam Raebareilly
Moradabad Construction Div.1st,
Vs.
Raebareilly
PAN LKNE05240E
(Appellant) (Respondent)
Appellant by : None
Respondent by: Smt. Nidhi Srivastva, Sr. DR
ORDER
PER A. T. VARKEY, JUDICIAL MEMBER
This is an appeal preferred by the Revenue against the order of the ld CIT(A), Bareilly dated 01.05.2013 for Assessment Year 2009-10.
2. The grounds raised by the Revenue are as follows:-
"1. The Ld. CIT(Appeal), Bareilly has erred in facts and law by quashing the order of the ITO (TDS) Moradabad on the ground that he has had no territorial jurisdiction over the assessee. TAN of the deductor was lying on the code of JCIT(TDS) Bareilly and ITO (TDS) Moradabad who passed the order in this case had conterminous jurisdiction with him. The orders are passed online on the ITD Application, and only the person having TAN on his code can pass such order.
2. While doing so the ld CIT(A) has erred further in overlooking the fact that order u/s 201(1) was printed out of the system (automatic ITS software) and once order is processed by Computerized system, the A.O. has no option but to sign it and send to the deductor.
3. While doing so in (1) above the ld CIT(A) has further erred in over looking the fact that no order on this is passed by any other A.O. and the shortfall in TDS was therefore rightly brought to tax by ITO (TDS) Moradabad.
4. That the applicant craves leave to amend any one or more of the grounds of appeal as stated above as and when need for doing so may arise."
3. Apropos the quashing of the order of the ITO (TDS) Moradabad on the ground that he had no territorial jurisdiction over the assessee.
Page No. 24. The ITO (TDS) Moradabad/Bareilly noticed on an analysis of the assessee's TDS statement on the basis of entries reported by the assessee with the information available as per bank challan details revealed that default has taken place on the part of the assessee in non-remittance of certain amount deducted by the assessee. After serving show-cause notice under 201(1) of the Income Tax Act, 1961 (herein after 'the Act') to the assessee and the assessee was advised by the Assessing Officer to file correction statement to rectify the data entry errors. Thereafter, the ITO(TDS), Bareilly found and declared the assessee to be an 'assessee in default' in respect to total tax liability of Rs. 6,83,120/-.
5. Aggrieved by the said order of the ITO (TDS) Bareilly/ Moradabad, the assessee preferred an appeal before the ld CIT(A) who was pleased to quash the said order of the ITO (TDS), Bareilly/Moradabad on the ground that ITO (TDS) Bareilly/Moradabad does not have the territorial jurisdiction to pass such an order in the case of the assessee. Aggrieved by the said order of the ld CIT(A) the revenue is before us.
6. The ld DR contended that the order dated 16.03.2011 of the ITO(TDS) Bareilly was passed u/s 201(1)/ 201(1A) which was generated by ITD System in this case and the demand of Rs. 6,83,120/- was generated by the system due to short payment of Rs. 4,08,840/-. According to the ld DR the TAN of the deductor (Assessee) was lying on the code of (JCIT)(TDS) Bareilly & Income Tax Office (TDS), Moradabad, who passed the order in this case had co-terminus jurisdiction and at the time of filing of return and creation of demand the jurisdiction over the case was with the office of JCIT(TDS), Bareilly and hence the finding of the ld CIT(A) is not in conformity to the Act and therefore ld CIT(A)'s order need to be struck down.
7. None appeared for the assessee. The statement made by the ld DR is considered and we have perused the records carefully. From the perusal of the records, it is noticed that the address of the assessee pertain to District Raebareilly and the assessee in the grounds of appeal before the ld CIT(A), claimed that the assessee's jurisdiction is with ITO (TDS) Faizabad. We find that the ld CIT(A) had carefully gone into the jurisdiction issue raised by the assessee before him and in order to ascertain the jurisdiction had by an order dated 23.112012 sought the question of jurisdiction before the JCIT (TDS) Bareilly and requested him to forward the copy of the order wherein the jurisdiction enjoyed by the ITO (TDS), Bareilly and Moradabad is laid down and ld CIT(A) also forward the name and address of the Page No. 3 assessee also to the said ITO (TDS) Bareilly. It was specifically stated in the said letter that the address of the assessee pertains to Raebareilly. The JCIT(TDS) (Bareilly) forwarded vide letter dated 30.11.2012 the copy of the CCIT, Bareilly order dated 23.11.2011 issued in exercise of the powers conferred under Sub-Section (1) & (2) of Section 120 of the Act and in concurrence with the CBDT regarding territorial jurisdiction of ITO(TDS), Bareilly/ Moradabad and in respect of other ITO's in charge Bareilly/ Moradabad. After a careful perusal of the said order regarding the jurisdiction of ITO (TDS), Bareilly/Moradabad, the ld CIT(A) could not find the assessee's address which is situated in Raebareilly in the territory prescribed under the ITO (TDS) Bareilly/Moradabad. Thus the ld CIT(A) made a finding that the assessee's address does not fall in the territorial limits of the ITO (TDS) Bareilly/ Moradabad. In the said circumstances left with no option the CIT(A) rightly quashed the order of the ITO (TDS), Bareilly. The ld DR could not point out from the order of the CCIT Bareilly as to whether the address of the assessee falls within the territorial jurisdiction of ITO (TDS), Bareilly/ Moradabad. Merely because the TAN of the assessee happened to be in the computer system of the ITO, does not confer jurisdiction and assumption of jurisdiction is clearly illegal and therefore ITO Bareilly/Moradabad is 'quarum-non-judice' in this matter. Therefore we do not find any infirmity in the order passed by the ld CIT(A) and confirm the same.
8. In result the instant appeal is devoid of merits and therefore it is dismissed.
Order pronounced in the open court on 31.01.2014.
-Sd/- -Sd/-
(SHAMIM YAHYA) (A. T. VARKEY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated 31/01/2014
A K Keot
Copy forwarded to
1. Applicant
2. Respondent
3. CIT
4. CIT (A)
5. DR:ITAT
ASSISTANT REGISTRAR
ITAT, New Delhi