Income Tax Appellate Tribunal - Indore
Smt. Manjri Choudhary, Indore vs The Acit 1(2), Indore on 10 January, 2018
आयकर अपील
य अ धकरण, इ दौर यायपीठ, इ दौर
IN THE INCOME TAX APPELLATE TRIBUNAL
INDORE BENCH, INDORE
BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER
AND
SHRI MANISH BORAD, ACCOUNTANT MEMBER
ITA No.587 & 588/Ind/2014
Assessment Year: 2010-11
Shri Vijay Choudhary,& ACIT -1(2),
Smt. Manjri Choudhary, बनाम/ Indore
11/2, Malharganj,
Vs.
Indore
(Appellant) (Revenue )
P.A. No.ABNPC7872L & ABNPC 7873 M
Appellant by Shri S.S. Deshpandey, CA
Revenue by ShriRajiv Jain, Sr. DR
Date of Hearing: 04.01.2018
Date of Pronouncement: 10.01.2018
आदे श / O R D E R
PER KUL BHARAT, J.M:
These two appeals by different assessee against the different orders of Ld. Commissioner of Income Tax(Appeals), (in short 'CIT(A)'), pertaining to the A.Y. 2010-11. Since the identical facts and grounds are raised both the appeals were taken up together and are being disposed by way of consolidated order. First we take up ITA No.587/Ind/2014 The assessee has raised following grounds of appeal:
Vijay Choudhary "1. The Ld. CIT(A) has erred in dismissing the appeal on technical ground by applying the provision of Section 249(4)(a) on the ground that 140A payment has not been made.
2. It was proved before the Ld. CIT(A) that the TDS was made by the company on salary and the default was committed by the payee company and the tax could be recovered from the said company. As such there was no default of payment of tax under Section 140A and the appeal should have been decide on merits.
3. The ld. AO has made the additions for the TDS deducted by the company which is totally illegal and without any basis.
4. The Ld. CIT(A) ought to have allowed the time to the assessee for the payment of the tax."
2. Briefly stated facts are that the assessment was framed u/s 144 vide order dated 30.03.2013 thereby the Assessing Officer made addition of Rs.37,00,295/- in respect of the TDS credit.
3. Against this the assessee preferred an appeal before the Ld. CIT(A) who after considering the submissions dismissed the appeal invoking provision of section 249(4)(a) of the Act.
4. Now, the assessee is in further appeal before the Tribunal.
5. The ld. counsel for the assessee vehemently argued that the authorities below were not justified in not admitting the appeal. The Ld. counsel placed reliance on the judgment of Hon'ble Gauhati High Court in the case of OM PrakashGattani vs. ACIT (1996) 222 ITR 489 (Guwahati) and decision of Hon'ble Bombay High Court in the case ofYashpalSahni v. RekhaHajarnavis, ACIT writ petition No.950 of 2006. The counsel argued that the assessee cannot be treated as the assessee in default. He submitted that the tax deductiedcould not have been added to the income of the 2 Vijay Choudhary assessee.On the contrary Ld. DR submitted that these case laws relied by the ld. Counsel for the assessee is not applicable. He submitted that section 249(4) of the Act mandates the payment of tax due on the income returned which is not done by the assessee.
6. We have heard the rival contentions and perused the material on record. We find that Ld. CIT(A) dismissed the appeal by observing as under:
"The appellant has disclosed an income of Rs.1,26,54,690/- in her return, on which an amount of Rs.37,00,295/- was deducted at source by a company called M/s Zoom Developers P. Ltd. in which appellant is a director and that is a group company of appellant. It is now claimed by appellant that such company has deducted TDS from salary and hire charges but not paid the same to Govt. account. It is appellant's claim that if TDS was deducted by such company and was not paid in Government a/c, liability for such tax payment was now on the company. This could be a valid argument and the case laws referred by appellant, in this regard, would definitely apply in a case where appellant is a deductee& company as a third party is a deductor. That is not the case here, because here deductee as an individual is not an outsider, but is a director/promoter of deductee company and company being only a legal person & not a physical person, all its affairs are being run & controlled by its directors/promoters and through them by the employees. Hence if TDS of appellant was deducted by a company in which appellant was a director/promoter, the decision to pay or not to pay tax deducted in Government a/c was taken by appellant & that is why appellant cannot shrug the responsibility of nonpayment of such tax in Government a/c.
7. Besides the responsibility for payment of taxes due on income earned by appellant is fastened on appellant as per section 4 of I.T. Act. If appellant as deductee and company as deductor were separate & independent persons, appellant would have immediately started some legal action against such company for non-payment of tax deducted to Government a/c.
3Vijay Choudhary But no such action was initiated by appellant being themselves in control of affairs of such company as its director/promoter.
8. Lastly the provision of section 249(4)(a) of I.T. Act lays down responsibility on appellant to ensure payment of tax due on the income returned & such responsibility is not over till such taxes are not only deducted but they reach their destination i.e. the Government a/c. Hence appellant has failed to fulfill responsibility affixed by aforesaid section.
9. Since neither appropriate column of appeal proforma in for no.35 is filed, nor tax due on income returned by appellant is paid, hence this appeal filed by appellant cannot be admitted and the same is hereby dismissed as per provision of section 249(4)(a) of the I.T. Act. Reliance is placed on the decision in case of Satish Kumar Singh [2012] 19 Taxmann.com 154(Karnataka) in which it was held that Commissioner (A) is not vested with any power to waive payment of such admitted tax and entertain appeal."
7. We do not see any infirmity into the findings of the Ld. CIT(A) as section 249(4) reads as under:
"(4) No appeal under this chapter shall be admitted unless at the time of filing of the appeal-
(a) Where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or
(b) Where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him:
Provided that [in a case falling under clause (b) and ] on an application made by the appellant in this behalf, the [commissioner appeals] may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provision of [that clause].
8. Hence, we do not see any merits into grounds raised in this appeal of the assessee.
4Vijay Choudhary Now we take up ITA No.588/Ind/2014 The assessee has raised following ground of appeal:
"1. The Ld. CIT(A) has erred in dismissing the appeal on technical ground by applying the provision of Section 249(4)(a) on the ground that 140A payment has not been made.
2. It was proved before the Ld. CIT(A) that the TDS was made by the company on salary and the default was committed by the payee company and the tax could be recovered from the said company. As such there was no default of payment of tax under Section 140A and the appeal should have been decide on merits.
3. The ld. AO has made the additions for the TDS deducted by the company which is totally illegal and without any basis.
4. The Ld. CIT(A) ought to have allowed the time to the assessee for the payment of the tax."
9. The arguments in this appeal are identical as ITA No.587/Ind/2014.There is no change in facts and circumstances, therefore, following our decision in ITA No.587/Ind/2014, we decide the issue against the assessee in this appeal too, wherein we have decided the issue against the assessee by observing as under:
"We do not see any infirmity into the finding of the Ld. CIT(A) as section 249(4) reads as under:
"No appeal under this chapter shall be admitted unless at the time of filing of the appeal-
(c) Where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or
(d) Where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him:
Provided that [in a case falling under clause (b) and ] on an application made by the appellant in this behalf, the [commissioner appeals] may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provision of [that clause].5
Vijay Choudhary Hence, we do not see any merits into grounds raised in this appeal of the assessee."
Thus, grounds raised in this appeal are dismissed.
10. In the result, Bothappeals of the Assessee are dismissed. Order was pronounced in the open court on 10.01.2018.
Sd/- Sd/-
(MANISH BORAD) (KUL BHARAT)
लेखा सद य/ACCOUNTANT MEMBER या यक सद य / JUDICIALMEMBER
Indore; दनांक Dated : 10/ 01/2018
Patel, P.S/. न.स.
Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file.
By order Private Secretary/DDO, Indore 6