Income Tax Appellate Tribunal - Delhi
Parle Biscuits Pvt. Ltd., Rohtak vs Department Of Income Tax on 14 October, 2011
ITA NO. 100/Del/2012
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "F", NEW DELHI
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
AND
SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
I.T.A. No. 100/Del/2012
A.Y. : 2010-2011
ITO (TDS), vs. M/s Parle Biscuits Pvt. Ltd.,
Aayakar Bhavan, Delhi Road, Sankhol, Bahadurgarh
Rohtak Distt. Jhajjar
(PAN/GIR NO. : RTK P01771A)
(Appellant ) (Respondent )
Assessee by : Smt. Manju Bhardwaj, CA
Department by : Shri Pradeep Kumar, C.I.T. (D.R.)
ORDER
PER SHAMIM YAHYA: AM This appeal by the revenue is directed against the order of the Ld. Commissioner of Income Tax (Appeals) dated 14.10.2011 pertaining to assessment year 2010-11.
2. The grounds raised read as under:-
"(i) On the facts and in the circumstances of the case the Ld. Commissioner of Income Tax (Appeals), Rohtak has erred in law in deleting the demand of ` 5580301/- created on a/c of short deduction of tax from the payment of ` 468310501/-
made to eight different parties for contract work done by them.
1ITA NO. 100/Del/2012
(ii) On the facts and in the circumstances of the case the Ld. Commissioner of Income Tax (Appeals), Rohtak has erred in law in holding that "the concerned Assessing Officer may not be aware of the existence of various TANs of the deductors and the concerned Assessing Officer of the deductee generally issue certificate u/s. 197 on the registered office of the deductor whereas the certificate u/s. 197 is issued by the Assessing Officer in the name of deductor only as requested by the deductee applicant.
(iii) That the appellant craves for the permission to add, delete or amend the ground of appeal before or at the time of hearing of appeal."
3. The brief facts of the case are as under:-
Survey operations u/s. 133A were conducted on the business premises of the assessee at Bahadurgarh on 7.2.2011. On perusal of the records / data, the Assessing Officer noted that TDS has not been made on the payments made to some parties on account of contract work done by them. The assessee submitted to the Assessing Officer that they have received lower/ non deduction of tax certificates issued by IT authorities and followed the same while deducting the TDS. The Assessing Officer noted from the perusal of such certificates that they have been issued by the officers of the Department in the name of Parle Biscuits Pvt. Ltd., Mumbai and not in the name of Parle Biscuits Pvt. Ltd., Bahadurgarh in respect of some parties noted in page 2 of the impugned order. When confronted, the assessee submitted that Mumbai is their head office and 2 ITA NO. 100/Del/2012 therefore credit of lower deduction tax certificates has been issued to the deductee parties while making payment to them. The Assessing Officer did not accede to the contention of the assessee and raised a demand of ` 67,38,214/- including interest u/s. 201(1) and 201(1A) of the Act.
4. Before the Ld. Commissioner of Income Tax (Appeals) the submissions were as under:-
"Based on the certificates u/s 197 for lower / non deduction of tax at source furnished by the CMUs, the tax was accordingly deducted and paid by the assessee before making payment to CMUs. During survey operations the Assessing Officer noted that in few certificates issued u/s. 197, the address mentioned is the registered office of the assessee at Mumbai and not of the factory making the payment i.e. Bahadurgarh. The Assessing Officer erroneously came to the conclusion that the assessee should not have resorted to lower / non deduction of TDS based on such certificates as both the units / offices have separate TAN. Drawing attention to the provisions of section 201(1), the Ld. Authorised Representative contended that the assessee can not be treated as assessee in default as the assessee has deducted TDS as per the certificates issued u/s. 197 and also paid the same to the credit of the government. Without prejudice to the above, the Ld. Authorised Representative contended relying upon the judgement of the Hon'ble Supreme Court in Hindustan Coca Cola Beverages (P) Ltd., vs. C.I.T. (2007) 293 ITR 226 (SC) that once the deductees have paid tax on the amount received by them, recovery could not once again be made from the 3 ITA NO. 100/Del/2012 deductor. The Ld. Authorised Representative furnished copies of the agreement entered with the CMUs and confirmation letters from them that the amount received from the assessee has been included in the income from business and taxes due have been paid."
5. Considering the above, Ld. Commissioner of Income Tax (Appeals) observed that only limited issue for consideration is whether the assessee would have resorted to lower deduction / non deduction of TDS in respect of the certificates issued u/s. 197 in the name of the assessee with the registered office (Mumbai) instead of the office (Bahadurgarh) making payment. Ld. Commissioner of Income Tax (Appeals) opined that the concerned Assessing Officer of the deductee generally issue certificate u/s. 197 on the registered office of the deductor. He may not be aware of the existence of various TANs for the deductor. The action of the assessee is therefore, resorted to lower / non deduction of the TDS in respect of such certificates issued u/s. 197 in the name of the assessee (though may not be the specific unit / office) can not be faulted. Ld. Commissioner of Income Tax (Appeals) held that since the genuineness of issuance of certificates u/s. 197 has not been doubted by the Assessing Officer, there is no justification for him to hold the assessee as assessee in default merely on the ground that the said certificate was not issued in the name of Bahadurgarh unit. Accordingly, Ld. Commissioner of Income Tax (Appeals) held that the demand rasied by the Assessing Officer in this regard is deleted.
6. Against the above order the Revenue is in appeal before us.
4ITA NO. 100/Del/2012
7. We have heard the rival contentions in light of the material produced and precedent relied upon. We find that in this case the genuineness of the issue of certificate is not in doubt. The only point of controversy at the level of the Assessing Officer was certificates issued u/s. 197 in the name of the assessee with the registered office (Mumbai) instead of the office (Bahadurgarh). In our considered opinion, the Ld. Commissioner of Income Tax (Appeals) has passed a reasonable order which does not need any interference on our part. Accordingly, we uphold the same.
8. In the result, the appeal filed by the Revenue stands dismissed.
Order pronounced in the open court on 07/3/2012, upon conclusion of hearing.
Sd/- Sd/-
[RAJPAL YADAV]
YADAV] [SHAMIM YAHYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date 07/3/2012
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant 2. Respondent 3. CIT 4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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