Income Tax Appellate Tribunal - Kolkata
Bansilal Leisure Parks Ltd, Kolkata vs Assessee on 20 January, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "B" KOLKATA
Before Shri Mahavir Singh, Judicial Member and
Shri Waseem Ahmed, Accountant Member
ITA No.573-574/Kol/2013
Assessment Years :2007-08 & 2008-09
Bansilal Leisure parks V/s. Income Tax Officer
Ltd., Barik & Associates, (TDS), W ard-57(2),
Chartered Accountants, 10B, Middleton Row,
12, Chowringhee Square, Kolkata - 700 071
Kolkata - 700 069
[P AN No. AABCB 2932 L]
अपीलाथ /Appellant .. यथ /Respondent
आवेदक क ओर से/By Appellant Shri Saumitra Chowdhury, Advocate
राज व क ओर से/By Revenue Shri Niraj Kumar, CIT-DR
सन
ु वाई क तार ख/Date of Hearing 07-12-2015
घोषणा क तार ख/Date of Pronouncement 20-01-2016
आदे श /O R D E R
PER Waseem Ahmed, Accountant Member:-
Both appeals by the assessee are arising out of order of Commissioner of Income Tax (Appeals)-XIX, Kolkata in appeal No.100-101/CIT(A)-XIX/Wd- 57(2)/Kol/11-12 dated 08.01.2013. Assessments were framed by ITO Ward- 57(2), Kolkata u/s 206C(7) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') vide his order dated 10.11.2008 for assessment years 2007-08 and 2008-09 respectively.
ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 2
2. Since common grounds are involved except the change of the figures in all these appeals, therefore, they were heard together and are being disposed of by this common order for the sake of convenience. Hence, we take the lead case in ITA No.573/Kol/2013 for A.Y. 2007-08 and reproduced the grounds as under:-
"1. Ground No. 1 That on the facts & in the circumstances of the case and in law, the Ld. CIT(Appeals) has erred in confirming the order of Assessing Officer on account of TCS & interest on TCS assessed u/s 206(6) & 206C(7).
2. Ground No. 2 That on the facts & circumstances of the case & in law, the Ld. CIT(Appeals) has misinterpreted the provision of Sec. 206C(6) & 206C(7).
3. Ground No. 3 That on the facts & circumstance of the case, the Ld. CIT(Appeals) has failed to apply his mind in the facts, and the documents as evidence produced by the appellant assessee.
4. Ground No. 4. That the Ld. CIT(Appeals)called for a remand report and the Assessing Officer came to the conclusion that all the deductee have filed the I.T Returns & paid taxes thereon. On these facts, the finding of the CIT(Appeals) is completely erroneous, perverse & illegal.
5. Ground No.5 That in deciding the appeal the Ld. CIT(Appeals) has misconstrued the Apex Court's judgment as well as that of High Courts which led him to arrive at a arbitrary, vindictive and malafide conclusion.
6. Ground No.6 That the demand of tax on TCS being Rs.46,77,109/- is illegal & not in accordance in the Income Tax Act."
3. The common and the single issue involved in both the appeals and grounds raised by assessee in appeal that Ld. CIT(A) erred in confirming the order of the Assessing Officer by treating assessee in default for non- collection of tax at source as per the provisions of Section 206C(6A) of the Act and raised a demand of Rs.39,30,344/-.
3.1 Facts of the case are that assessee is a Private Limited Company is engaged in the business of wholesale of timbers. During the course of assessment proceedings, AO found that assessee has not collected the TCS ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 3 at the appropriate rate from the various parties on the sale of the timber in terms of the provisions of the Sec.206C(6) of the Act. The party-wise detail of such transaction is reproduced below :-
Sl. Name of the buyers Rate TCS amount in
No. default rupees
1 Rajputana General Commercial Corp. Pvt. 0.20% 1,78,529/-
Ltd.
2 Tirupati Vyapar Pvt. Ltd. 2.5% 10,68,644/-
3 Zenith Timber Products Pvt. Ltd. 0.30% 6,39,473/-
4 Nimbark Impex Pvt. Ltd. (SD) 0.30% 18,118/-
5 Uttam Resources Pvt. Ltd. 0.30% 1,62,663/-
6 Chowdhury Enterprises 0.35% 81,846/-
7 Eastern Timber Comm. Trade Pvt. Ltd. 0.25% 1,01,314/-
8 Supreme Wood Product Pvt. Ltd. 0.50% 37,079/-
9 Naini Plywood Pvt. Ltd. 0.30% 27,034/-
10 M.B. Enterprises 2.5% 2,09,970/-
11 D.D. Enterprises 0.35% 93,894/-
12 R.M.C. power Recovery (India) Pvt. Ltd. 2.5% 12,16,089/-
38,34,653
Add: Sc 95,691
On query for said default, assessee submitted that buyers of the timber have paid the taxes in their respective returns of income, so assessee should not be treated as assessee in default. However, AO has rejected the claim of assessee by holding that assessee has grossly violated the provisions of Sec. 206C of the Act. Accordingly, AO disallowed the sum of Rs.39,30,344/- and added it to the income of assessee.
4. Aggrieved, assessee preferred an appeal before Ld. CIT(A) and submitted that all the parties to whom the sales were made by the assessee, have paid the taxes by filing their income tax returns. The assessee relied on the order of Hon'ble Apex Court in the case of Coca-cola Beverage Pvt. Ltd. vs CIT(2007) 293 ITR 226 (SC) wherein it was held that " the tribunal came to the right conclusion that the tax once again could not be recovered from the ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 4 appellant (deductor assessee) since the tax has already been paid by the recipient of income.
However the ld. CIT(A) has disregarded the plea of the assessee by observing as under :
"15. It is in this background that the decision rendered by the Hon'ble Supreme Court in the case of Coca Cola (P) Ltd has to be understood and implemented accordingly. In this case it will be against the law to interpret that in each and every case where the deductee has paid the tax, though the onus is on the deductor to deduct the tax, the benefit will be given to the deductor. Such type of interpretation goes against the basic objective of TDS provision which is based on the philosophy "PAY AS YOU EARN". It is true that TDS provision is presumptive form of taxation, however, the point and time of collection is integral part of such provision. Because of such intrinsic character of TDS provision it is considered to be the most important tool of tax collection and it is required that strict and harmonious interpretation of TDS provisions should be given. The manner in which the judgment of Hon'ble Supreme Court in Coca-Cola is interpreted by the appellant it is unjustified and against the objective of DS provisions. Such interpretation will make the entire TDS provisions redundant.
16. In the background of above stated discussions the judgment of Hon'ble Supreme Court in the case of Coca Cola (P)Ltd. has very limited applicability and it can be restricted to only such genuine and bonafide cases where though there is compliance of TDS provision, however, under honest believe there is under-statement of tax deducted at source. The above judgment does not approve the case where an assessee in default failed to deduct tax and taking a plea that the deductee has paid the tax
17. The facts of the case of Coca Cola (P) Ltd. very much corroborate with such observation as in that case the AO was of the view that the ware-housing charges paid by the assessee Coca Cola (P) Ltd. (deductor) of M/s Pradeep Oil Corporation (deductee) was in fact rent and TDS should have been deducted u/s. 194I at higher rate than the tax deducted by the deductor @ 2% treating it as contractual payment. It is in this background and fact that the Hon'ble Supreme Court held that no further tax could be recovered from the deductor once it has been paid by the deductee along with interest u/s. 201(1A) of the I.T. Act. The Hon'ble Supreme Court, however approved the action of the AO in treating assessee as "assessee in default."
18. The facts of the case of the assessee is entirely different than in the case of Coca Cola (P) Ltd. The assessee has not complied with the ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 5 provisions of TDS and even after getting sufficient opportunity failed to produce any evidence that the tax has already been paid by the deductee. On the basis of above judgement of Coca Cola even if it is presumed that the deductee has already paid the tax the assessee cannot get relief on the basis of such judgment because of gross violation of TDS provision with no direct proof that the deductee has already paid the tax in contrast to case of Coca Cola (P) Ltd, where there was honest violation of TDs provision. In view of above stated discussions I am of the considered view that the decision of Hon'ble Supreme Court in the case of Coca Cola (P) Ltd., has only restrict application and cannot be applied in the case of appellant. It may also be mentioned that the appellant reliance on other two decisions namely Mahindra & Mahindra Ltd. Vs. DCIT [2009] 313 ITR (AT) 263 (Mumbai) (SB) and CIT Vs. Trans Bharat Aviation (P) Ltd [2010] 320 ITR 671 (Delhi) may not be of any help when the ratio of decisions of Hon'ble Supreme Court in the case of Coca Cola (P) Ltd., is not applicable in the case of appellant.
26. In view of above stated discussions I am of the considered view that the action of the AO is as per law and the total amount payable by the assessee at Rs.46,77,109/- is confirmed on merit. All the grounds of appeal raised by the appellant stand disposed off accordingly."
Being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us.
Shri Saumitra Chowdhury, Ld. Authorized Representative appearing on behalf of assessee and Shri Niraj Kumar, Ld. Departmental Representative appearing on behalf of Revenue.
5. We have heard rival submissions of both the parties and perused the materials available on record. Before us the ld. AR submitted that all the parties to whom sales were made by the assessee have duly furnished income tax returns. Therefore the ld. AR contended that the assessee in the present case cannot be treated as assessee in default. On other hand the ld. DR vehemently relied on the orders of authorities below. ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 6 5.1 From the aforesaid discussions we find that the assessee failed to collect the TCS at the time of selling the timber to the parties as per the provisions of law. Accordingly the AO treated the assessee in default and raised the demand of the tax. However the ld. AR demonstrated that the parties to whom the timbers were sold have filed their income tax returns and relied in the judgment of Hon'ble Apex Court in the case of Coca-cola Beverage Pvt. Ltd. vs CIT(2007) 293 ITR 226 (SC). Regarding the claim of the assessee that the buyers have paid the taxes in their respective returns, we find support from the proviso to sub-section (6A) of section 206C which has been inserted by the Finance Act, 2012 with effect from 1.7.2012, reads as under :
"Provided that any person, other than a person referred to in sub section (1D), responsible for collecting tax in accordance with the provisions of this section, who fails to collect the whole or any part of the tax on the amount received from a buyer or licensee or lessee or on the amount debited to the account of the buyer or licensee or lessee shall not be deemed to be an assessee in default in respect of such tax if such buyer or licensee or lessee-
(i) Has furnished his return of income under section 139;
(ii) Has taken into account such amount for computing income in such return of income; and
(iii) Has paid the tax due on the income declared by him in such return of income;
We also relied on the order of ITAT Ahmedabad "A" Bench in the case of K.P.G. Enterprise v. ITO in ITA No. 2384/Ahd/2012 dated 14.08.2012 for the A.Y. 2010-11 extracted in para 20 and 21, which is reproduced below:-
"20. Rajkot Special Bench of the Tribunal in the case of Bharti Auto Products Vs. CIT (supra) has held as under:-
The first proviso inserted in sub-section (6A) of section 206C seeks to (1) ensure that there is no loss to the Revenue, i.e. (i) the buyer has furnished his return of income under section 139, (ii) the buyer has taken into account such sum on which tax was required to be collected at source under section 206C for computing income in such return of income, (ii) the buyer has paid the tax due on the income declared by him in such return of income, (iv) the i.e, the person responsible for collecting the tax at source under section 206C, has furnished a ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 7 certificate inform 27BA confirming the aforesaid; (2) rationalise the provisions relating to collection of tax at source; (3) provide relief to the collector of tax at source from the consequences of non/short deduction collection of tax at source and to that extent it is a beneficial provision. Keeping in view the fact that the first proviso to sub-section (6A) of section 206C not only seeks to rationalise the provisions relating to collection of tax at source but is also beneficial in nature in that it seeks to provide relief to collectors of tax at source from the consequences flowing from non/short collection of tax at source after ensuring that the interest of the Revenue is well protected, the proviso would apply retrospectively."
21. Further, we find that under the scheme of Income Tax Act, the provision of TDS and TCS has been enacted to facilitate the collection of tax which is leviable on the recipient of the income as per provision of section 4 of the Act. In other words, TDS or TCS is not a separate tax, but they are to facilitate the collection of tax which is chargeable u/s. 4 of the AC primarily from the recipient of income. In other words, when recipient of income has paid income tax directly on their income, then no loss of revenue took place because of non-collection of TCS or non- deduction of TDS and therefore, for such default the assessee cannot be treated as an assessee in default in respect of amount of TDS or TCS. Hon'ble Supreme Court in tdhe case of Hindustan Coca Cola Beverage (P). Ltd. Vs. Commissioner of Income Tax (2007) 293 ITR 226 (SC) has held as under:-
'Since the assessee had paid the interest under section 201(1A) and there was no dispute that the tax due had been paid by the deductee (Padeep Oil), the Appellate Tribunal came to the right conclusion that the tax could not be recovered once again from the assessee.' "Thus, in our considered opinion , if the payer has paid tax on their income and such income has been assessed after taking into consideration the purchases made from the assessee, then tax cannot be again collected from the assessee on the ground of non-collection of TCS or short-collection of TCS."
Now from the facts of the case, it is clear that the assessee should not be treated as assessee in default in terms of the amended provisions of the law as discussed above. From the order of the ld. CIT(A) we find that all the parties to whom the sales were made have furnished their respective returns of income. We also find that the ld. DR has not brought anything contrary to ITA No.573-574/Kol/2013 A.Ys. 2007-08 & 2008-09 Bansilal Leisure Parks Ltd. v. ITO (TDS) wd-57(2) Kol. Page 8 the argument of the ld.AR. Accordingly we also relied on the order of ITAT Ahmedabad "A" Bench in the case of K.P.G.Enterprise (supra), we reverse the order of the authorities below and allow this ground in favour of assessee.
6. Taking a consistent view in ITA No.573/Kol/2013 and issue is common, hence, we allow ITA No. 574/Kol/2013 of assessee's appeal.
7. In the result, both appeals of assessee are allowed Order pronounced in the open court 20/01/2016 Sd/- Sd/-
(Mahavir Singh) (Waseem Ahmed) (Judicial Member) (Accountant Member) Kolkata, *Dkp "दनांकः- 20/01/2016 कोलकाता । आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. आवेदक /Assessee -Bansilal Leisure Parks Ltd., Barik & Associates, Chartered Accountants, 12, Chowringhee Square, Kolkata-700 069
2. राज व /Revenue- ITO (TDS), Ward-57(2), 10B Middleton Row, Kolkata-71
3. संब-ं धत आयकर आय/ ु त / Concerned CIT Kolkata
4. आयकर आय/ ु त- अपील / CIT (A) Kolkata
5. 2वभागीय 5त5न-ध, आयकर अपील य अ-धकरण, कोलकाता / DR, ITAT, Kolkata
6. गाड9 फाइल / Guard file.
By order/आदे श से, /True Copy/ उप/सहायक पंजीकार आयकर अपील य अ-धकरण, कोलकाता ।