Income Tax Appellate Tribunal - Ahmedabad
Shantamani Enterprises, Bhavnagar vs Assessee on 19 September, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD ''A" BENCH - AHMEDABAD
Before Shri S.S. Godara, JM, & Shri Manish Borad, AM.
ITA No. 686/Ahd/2013
Asst. Year: 2010-11
M/s Shantamani Enterprise, Vs. ITO, (TDS)-4,
Nanalal Chambers, Ahmedabad.
Lokhandbazar, Bhavnagar.
Appellant Respondent
PAN AAHFS4724L
Appellant by Shri M. K. Patel, AR
Respondent by Shri K. Madhusudan, Sr.DR
Date of hearing: 15/9/2016
Date of pronouncement: 19/9/2016
ORDER
PER Manish Borad, Accountant Member.
This appeal by the assessee for Asst. Year 2010-11 is directed against the order of ld. CIT(A)-XXI, Ahmedabad dated 17.09.2012 in appeal no.CIT(A)-XXI/305/11-12 passed against order u/ 201(1)/201(1A) of the IT Act, 1961 (in short the Act) framed on 29.07.2011 by ITO(TDS)-4, Ahmedabad. Grounds of appeal raised by the assessee are as follows :-
1. That on facts and in law, the learned CIT(A) has grievously erred in holding that the appellant is liable to collect TCS u/s.206C of the Act.
2. That on facts and in law it ought to have been held that there is no default u/s. 201(1) / 201(1A) of the Act.ITA No.686/Ahd/2013 2
Asst. Year 2010-11
3. That on facts and in law there is no default as the sales are made to manufactures against Form No.27C and to buyers against lower TCS certificates issued by the department.
4. In the alternate there is no default as the purchasers are filing returns and taxes regularly and hence appellant is not in default within the meaning of section 201(1) 201(1A) Of the Act.
5. The appellant craves leave to add, alter, amend any ground of appeal.
2. This appeal is time barred by 101 days. The assessee has filed an affidavit along with petition dated 7th March, 2013 for condonation of delay. In the petition it has been mentioned that Shri Jayantbhai Patel, who is looking after the tax matters received the order of ld. CIT(A) on 31/11/2012. However, during this period there was a change of the Income-tax Consultant who was handling the matters of the assessee since 20 years and a new tax consultant was appointed. In the first fortnight of December, 2012 the partner was busy with election campain for National Congress party local candidate. Due to all this hectic and busy schedule, the partner was ill thereafter for about 15 days till end of December, 2012. Unfortunately, thereafter, there was an accident at the ship breaking plot no.27 of the assessee in the middle of January, 2013 due to which normal working was disrupted and the consequential procedures took a very long time to settle down. Due to all these events, immediate action could not be taken for handing over the papers to Advocate at Ahmedabad so as to prepare and file the above appeal. Hence the delay has occurred due to the bona fide reasons stated as above and in the interest of justice, it is humbly ITA No.686/Ahd/2013 3 Asst. Year 2010-11 requested that the delay may kindly be condoned and the appeal may be heard on merits..
3. We have considered the petition for condonation of delay and find that there is a bona fide reason for not filing the appeal in time. Hence we condone the delay and proceed to adjudicate the appeal.
4. Ld. AR submitted that proper opportunity of hearing was not provided by the lower authorities. The ld. CIT(A) has disposed of the assessee's appeal in a very cryptic manner upholding the action of Assessing Officer. Therefore, he requested that one more opportunity may be given so that the assessee can provide all necessary documents & evidences before the lower authorities and after proper consideration of the facts and circumstances, appeal may be disposed of.
5. Ld. DR opposed the submission of ld. AR and submitted that the assessee was reluctant to appear before the authorities below. So according to assessee's submissions, the case has been considered by the ld. CIT(A) and rightly passed the appellate order. There is no ambiguity in ld. CIT(A)'s order. The same may be upheld.
6. We have considered the rival contentions and perused the material on record. We observe that ld. CIT(A) has disposed of the appeal of assessee with the following observations :-
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3. With respect to the various notices issued, the appellant made written submissions through post which received in the office on 02.07.2012. Subsequently, notice was issued on 22.07.2012 asking for clarification, in response to which the appellant replied vide its letter dated 18.08,2012 that its appeal may be decided on the basis of written submissions dated 2,07.2012. In view of the above, the grounds are adjudicated on the basis of material available on record.
4. Grounds Nos. 1 to 4 are general in nature and hence not adjudicated upon.
5. With respect to ground Nos. 5 & 6, the appellant vide its written submissions has submitted that he is engaged in the business of ship breaking. The scrap and plates obtained from ship breaking business is sold to the various persons and TCS @ 1% is collected from the buyers. In the written submissions, the appellant has dwelled on the issue that sufficient time was not granted by the AO to furnish details of various form No.27C collected from such buyers, to the AO. The appellant submitted that he is discharged his application under the provisions of Seaion 206C of the Act by collecting the deemed amount of tax at source from the respective buyers. Along with the written submissions, however, no evidence in the form of list of buyers along with copies of form No.27C has been furnished. The appellant has also not furnished necessary evidences in respect to compliance to Section 206C(1B). The submissions made by the appellant are silent on these issues. Such submissions are not forthcoming even after a notice was issued subsequent to written submissions made by the appellant.
5.2 In view of the above, I am of the view that necessary evidences that compliance to Section 206C(1A) & 206C(1B) is not furnished by the appellant despite number of opportunities given to him. Under the stated circumstances, I am of the opinion that action of the AO in treating the appellant as assessee in default u/s. 201(1)/201(1A) of the income-tax Act is correct."
7. After considering the facts of the case and the observation of the ld. CIT(A), we observe that ld. CIT(A) has disposed of the matter in a very short-cut manner without giving proper discussion of the matter. Therefore, to meet the ends of justice, we deem it proper to restore the matter to the file of ld. CIT(A) for fresh decision, after providing reasonable opportunity of being heard to the assessee. We set aside the first appellate order and restore the appeal to the ld. CIT(A) for fresh adjudication. The appeal of the assessee is allowed for statistical purposes.
8. In the result, appeal of the assessee is allowed for statistical purposes.
ITA No.686/Ahd/2013 5Asst. Year 2010-11 Order pronounced in the open Court on 19th September, 2016 Sd/- sd/-
(S. S. Godara) (Manish Borad)
Judicial Member Accountant Member
Dated 19/9/2016
Mahata/-
Copy of the order forwarded to:
1. The Appellant
2. The Respondent
3. The CIT concerned
4. The CIT(A) concerned
5. The DR, ITAT, Ahmedabad
6. Guard File
BY ORDER
Asst. Registrar, ITAT, Ahmedabad
1. Date of dictation: 15/09/2016
2. Date on which the typed draft is placed before the Dictating Member: 19/09/2016 other Member:
3. Date on which approved draft comes to the Sr. P. S./P.S.:
4. Date on which the fair order is placed before the Dictating Member for pronouncement: __________
5. Date on which the fair order comes back to the Sr. P.S./P.S.:
6. Date on which the file goes to the Bench Clerk:20/9/16
7. Date on which the file goes to the Head Clerk:
8. The date on which the file goes to the Assistant Registrar for signature on the order:
9. Date of Despatch of the Order: