TaxTMI 
TaxTMI 
2020 (5) TMI 455
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....d for various other reasons and hence, the same kindly be quashed. 2. The ld. CIT(A-III, Jaipur erred in law as well as on the facts of the case in holding that the impugned order passed under section 206C(6) r/w 206C(7) of the Act dated 6-3-2017 by the ITO, is not barred by limitation and therefore, erred in upholding the validity of the impugned order. The impugned order so passed on dated 6-3-2017 i.r.t F.Y 2012-13 after a lapse of a long period, is contrary to the intention of the legislature and to the various judicial pronouncements and hence, is certainly barred by limitation and therefore, the same kindly be quashed in lime line. 3.1 Rs. 1,77,360/-: The ld. CIT(A)-III, Jaipur erred in law as well on the facts of the case in confirming the demand raised by the ITO due to alleged non collection of Tax at Source (TCS) under section 206C(6) of the Act, which is the entire amount of sales itself and otherwise also is completely contrary to the provisions of law and facts in as much as Rs. 1,77,360/- is gross amount of sales effected by the assessee and not merely 5% TCS thereon. Hence, the impugned demand kindly be quashed and deleted in full. 3.2 The ld. CIT(A)-IH, Jaipur....
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....ngaged in the business of manufacturing & trading of Bidi leaves at Tonk and Uniyara & in trading of Tendu leaves, which are mainly affected in states of Rajasthan, M.P (Betul) & Maharashtra. A survey under section 133A(2A) was conducted on 23.03.2015 at the business premises of the assessee and during the course of survey proceedings, it was found that the assessee firm has sold Tendu Leaves to various parties which falls under the category of forest produce and the assessee was required to collect tax at source as per the provisions of section 206C(1) of the Income Tax Act, 1961. During the course of survey, statement of Sh. Moinuddin, a partner of the assessee firm was also recorded and the relevant contents of the statement, reproduced in the assessment order passed under section 206C(6)/206C(7) dated 6-3-2017, reads as under:- 4. The Assessing officer, relying on the aforesaid survey proceedings and statement of the partner of the assessee's firm so recorded during the course of survey, observed that the assessee firm has failed to collect tax at source from buyers of Tendu leaves and also failed to submit Form No. 27C in the prescribed form to the effect that the goods a....
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....rs and submit the same to the ld. CIT(TDS) within the stipulated time. Regarding filing of Form No. 27BA and submission of the assessee firm that the parties who have purchased the Tendu Leaves have duly recorded the same in their respective books of accounts and maximum number of buyers have furnished their return of income under section 139(1), it was observed by the Assessing Officer that he has gone through the documentation so submitted by the assessee firm and on perusal thereof, it is noticed that complete information in the Form/certificate have not been given by the accountant/party as required by the legislature and most of the columns are either not filled up as required or simply mentioned as per details/enclosure. Moreover the accountant has signed the forms with conditional remarks "As certified by the buyer" whereas the forms should have been filled up and certified by the accountant itself on the basis of records. Further, some of the parties have not filed return on or before due dates prescribed under section 139 of the I.T. Act, 1961. It was accordingly held by the Assessing officer that the assessee firm has failed to fulfill the condition laid down as prescribe....
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.... (with PAN) as admitted by the Id ITO at pg-7 of the impugned order. Category C: For the remaining amount of the sales, the assessee was and is still in the process of collecting the requisite details and certificates on this aspect but their PAN were made available. The ITO did not deny from these facts but rather failed to rebut the same and rejected merely on suspicion on the ground that copies of the respective returns from those buyer parties were not submitted before him. The ITO however, did not deny that no tax remained payable in the hands of the buyers. The ITO having not satisfied this pre requisite by making necessary enquiry to this effect, lacked jurisdiction and therefore, the impugned order deserves to be quashed in full. 5. Copy of Samman Patra dated 25-7-2002 issued by the CIT, Kota being the highest taxpayer award in income from business category for A Y. 1999-2000 in Additional CIT, Sawai Madhopur Range. This shows that the assessee is a law abiding respected citizen and also a respected tax payer whose conduct is not contumacious which aspect, kindly be taken into consideration while deciding the present appeal. 6. Even after filing sufficient and voium....
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....g allegations upon the assessee deductor (as if everything is to be done by the assessee deductor only whether he is capable of getting all the informations in absence of any legal power conferred upon it and in absence of suitable infrastructure). 2. Accountant has signed the forms with conditional remarks "As certified by the buyer" whereas the forms should have been filled up and certified by the accountant itself on the basis of records It was the Id. Chartered Accountant who signed the certificate is an expert upon which even the legislature has reposed confidence. If the expert has certified certain facts in a particular manner it is for him and the assessee has no role to play. Careful reading of the certificate show that the CA was required, only to certify the basic requirements of the proviso. The further details were to be mere filled up as supplied to him but was not required to be certified as wrongly understood. Allegation is ignoring the fact that a substantive compliance was fully and duly made by the assessee in as much as such form was based on the certificates given by the concerned buyer duly signed. If the ITO was not satisfied he could have direc....
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....ntly value thereof which is binding even upon the ITO and if, the ITO was having the suspicion, he must have brought contrary facts on record to negate the claimed state of affairs. 5. The legislature has introduced the proviso to end the litigation for non collection of TCS on payment of interest as per proviso, whereas the deduct or has opted both option of litigation i.e. challenging the liability of interest on TCS on the sale of Tendu Leaves before the appellate authorities in the earlier years and other way it has claimed benefit for proviso without paying or agreeing to pay the interest as per first proviso to section 206(C)(6A) of the IT, Act, 1961 Such allegation is beyond understanding. An assessee has got all the right to challenge the proceedings from all angles /aspects and to avail all the remedies available and there can't by any prohibition thereon. 6. Further that the certificates were signed on a single day. Nothing more than a suspicion. If it was manageable for the CA to have discharge his job on one day, which is quite possible looking to the nature and quantum of the work, there was nothing wrong. Unfortunately, the Id. ITO instead of admitting the....
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.... to carry out its day to day business even though such proceedings were not getting time barred and there were no saving compulsion upon the officer. 7. The ld. ITO at Pg-6 has narrated the fact of granting opportunities to the assessee however, he has conveniently ignored the request of the assessee (though reproduced in the impugned order itself at Pg-5) that the order of the ld. CIT(A) in the first year i.e. F. Y 200708 was pending decision before the ld. CIT(A) and it was proper to wait for the decision which could be taken as a guidance for the later years. Moreover, details were to be obtained from various parties / purchasers scattered at distant and remote places of Rajasthan, MP and Maharashtra. It can't be denied that the assessee was dependent upon those parties who are having their upper hand and were not obliged to act upon the direction of the assessee. On the contrary and unfortunately, it was an attempt on the part of the ITO to harass the assessee by deciding various years in a haste and then to create huge demands which was avoidable without any loss to the revenue because those orders were not getting barred by limitation. It is under this background the as....
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....ility imposed upon the assessee under TCS provisions under section 206C is far different from the liability imposed under the TDS provisions under section 201. In his view, under TCS, the assessee is not deemed to be the assessee in default but is made liable to pay TCS amount and the entire liability in respect of TCS is fastened upon him irrespective of the fact whether he has collected the TCS or not which is in contrast with the provisions of section 201(1). The AO admitted that the very object of the provisions relating to TDS and TCS are the same. These provisions falls under the Chapter-XVII and provide a method of Collection and Recovery of tax at source. The object behind the deduction/ collection of TDS/ TCS is the same i.e. to ensure the advance recovery of the taxes from the concerned payer/seller to be credited to the account of the concerned recipient/buyer. The noncompliance of the provisions i.e. non-deduction/non-collection, in both the cases, make the person responsible, liable to pay the amount of TDS/TCS in one way or the other. Whereas in the case of TCS, such demand is created under section 206C(6), in the case of TDS, such demand is created under section 20....
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....nowledgements of filing of return of income/return filing details as also copies taken from the official website, the following position emerges: M/s. Eid Mohammad Nizamuddin, Tonk PAN: AAAFI4581L Chart of Year-wise Sales of Tendu-Leaves & Declaration of Income by the buyers S. No. Name of Buyer PAN Amount in F.Y. 2012-13 Remarks A Cases where Declaration & Certificate in form 27BA and Return of Income filed. 1 M/s. Mangalore Ganesh Beedi Works Mysore (Karnataka) AAAAM1342G 68421238 ROI filed enclosed 2 M/s. Gujarath Tobacco Company Mysore (Karnataka) AFJPP1330G 1588890 ROI filed enclosed 3 M/s. Pannalal Premrai Khatri Sawai Modhopur (Raj.) AADFP3174F 4538765 ROI filed enclosed 4 M/s. Anand Tobacco Products Mangalore (Karnataka) AAFFA4744G 967200 ROI filed enclosed 5 M/s. Prakash Bidies Limited Mangalore (Karnataka) AABCP9885E 9503876 ROI filed enclosed 6 M/s. P& J Tobacco Products Company Gopal Nagar Distt. Murs AACFP2000R 3571350 ROI filed enclosed 7 M/s. SJ& SP Family Trust Jagtial Distt. Karim nagar (A.P.) AAATS5877R 44164013 ROI filed enclosed 8 M/s. JP Tobacco Products Pvt. Ltd. Damoh (M.P.) AAACJ7141G 11591849 ROI filed encl....
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....a Traders Amroha (U.P.) AGDPA5730H 622890 A chart showing ROI filling details & 24 M/s Afrin Traders Beedi Merchants Sira (Karnataka) ALIPM9963H 1078688 A chart showing ROI filling details & 25 J.G. & Sons Kourtia ACGPL9235D 346080 A chart showing ROI filling details & Total B Rs. 1,34,89,762/- C Cases where Certificate/Return of Income not filed 26. Ramesh S/o Nathu MP 1,77,360 Certificate available but return not filed Total C Rs. 1,77,360/- GRAND TOTAL Rs. 27,19,31,589/- It is evident from the table above that the assessee in the case listed at 1 to 16 has filed all the details like declaration, certificate and return of income. Therefore this benefit as per the ratio laid down in Hindustan Coca Cola (supra) could be given to the assessee. Thus the appellant is entitled to the benefit to the extent of Rs. 25,82,64,467/- and no TCS can be recovered on this amount. In nine cases at serial no. 17 to 25 the assessee has filed the certificate in form 27BA but return of income were not furnished. However evidence of filing of return through website was filed. Accordingly the ....
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.... is evident from the e-filling website of the income tax department which also shows the ITO(TDS), Kota having territorial jurisdiction over Tonk, District wherein the assessee situated. But surprisingly, the impugned orders for the AY 2009-10 to AY 2015-16 were passed by the present ITO TDS-3, Jaipur on 22.12.2016 and 06.03.2017 is lacking jurisdiction and hence void ab initio and liable to be quashed. Kindly refer State of Gujarat v. Rajesh Kumar Chian Lal AIR 1996 P. 2664 Raza Textiles Ltd. v. ITO 87 ITR 539 (S.C.), Choubey Jagdish Prasad v. Gaya Pal Chaturvedi AIR 1959 492 P. Das Muni Reddy v. Apparito AIR 1974 208 Sant Baba Mohan Singh v. CIT 90 ITR 197 77 Taxman 265 - Sitaram Rathore v. CIT Hence the impugned demand so raised kindly be quashed in full or in the alternate the benefit of the proviso to section 206C (6A) be given." 11. Per contra, the ld DR drawn our reference to the order of the ld CIT(A) and submitted that the ground of appeal though taken by the assessee firm before the ld CIT(A), however, since the same was not pressed during the course of hearing, the ground was not allowed and dismissed by the ld CIT(A). 12. We have heard the rival contentions and pu....
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....1,34,89,762/- (as per list A & B). However, with regard to the third type of categories (list C) for the cases listed from S.No. 26, showing sales of Rs. 1,77,360/-, the ld. CIT(A) held that the benefit of the decision of the Hon'ble Supreme Court in case of Hindustan Coca Cola could not be applied in this case and held as under: "Further in case of party at serial no. 26 the assessee neither filed any declaration & certificate nor any return of income. Therefore, the assessee cannot be allowed the benefit of the decision Hindustan Coca Cola (supra) in these cases. The demand of TCS and the interest thereon, raised by the ITO to the extent ofRs. 1,77,360/- is up held being justified." Accordingly, he confirmed the order of the ld. AO to that extent. However, while concluding, he observed as under: " . . . . . The demand of TCS and the interest thereon, raised by the ITO to the extent ofRs. 1,77,360/- is upheld being justified." 16. In this regard, it was submitted by the ld AR that the demand of TCS under section 206C(6) and demand of consequent interest thereon under section 206C(7) can only be the demand of TCS and not of the entire sale. It appears that the ld. CIT(A) ....
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....filing of the return by respective parties. Accordingly, this ground is partly allowed." 21. In this regard, it was submitted by the ld AR that no interest is leviable and permissible to be charged in a case where buyers have already paid advance taxes and having refund. It was submitted that there may be situations where the amount of prepaid taxes (i.e. by way of TDS/ TCS or Advance Tax) were paid by the buyer towards his Income Tax liability even before the date on which such amount of TCS became collectible by the assessee seller, in such a case no interest can be charged because the amount of tax already stands paid in the exchequer by the buyer himself. In some of the cases, such payment of prepaid taxes may be by way of prepayment of installments of Advance Tax on different dates during the relevant Financial Year. Hence depending upon the due date of the collection of TCS by the assessee seller vis a vis the different dates of prepayment of taxes (as stated above), interest has to be computed but it is not that the interest becomes chargeable on the entire amount for the entire period by taking a literal interpretation of the proviso to section 201(1A). Here, in various ca....
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....ensee or lessee." 25. A bare reading of the aforesaid provisions provides that where the person responsible for collecting tax does not collect the tax or after collecting the tax fails to pay it, he shall be liable to pay simple interest at the prescribed rate from the date on which such tax was collectible to the date on which the tax was actually paid. Further, a proviso has been inserted by the Finance Act, 2012 with effect from 1.07.2012 which provides that where such person is not deemed to be an assessee in default under the first proviso of sub-section (6A), the interest shall be payable from the date on which such tax was collectible to the date of furnishing of return of income by such buyer. 26. The first proviso of sub-section (6A) has simultaneously been introduced in the statue by the Finance Act 2012 with effect from 1.07.2012 which reads as under: "(6A) If any person responsible for collecting tax in accordance with the provisions of this section does not collect the whole or any part of the tax or after collecting, fails to pay the tax as required by or under this Act, he shall, without prejudice to any other consequences which he may incur, be deemed to be an ....
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....s. Accordingly this ground is partly allowed." 28. We therefore find that the assessee firm has been allowed the benefit to the extent of sales of Rs. 25,82,64,467/- in respect of cases listed at 1 to 16 where the buyers have filed their respective return of income wherein it has been directed by the ld CIT(A) that no TCS can be recovered on this amount following the ratio laid down in Hindustan Coca Cola. Similarly, following the said legal proposition, in respect of transactions listed at item no. 17 to 25, the ld CIT(A) has directed the AO to allow the benefit of Rs. 1,34,89,762/- only after making verification of the return of income filed by the respective buyers as the assessee has filed the certificate in Form no. 27BA but copy of return of income were not furnished by the assessee though evidence of filing of return through website was filed. However, as far as charging of interest is concerned, in respect of all these transactions listed at 1-25, the ld CIT(A) has directed to calculate the interest for period starting from the due date of deposit of TCS after collection to the date of filing of the return by respective parties. We therefore find that the said direction of....
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....ee seller will be under no obligation to collect tax at source overriding the provisions of section 206C(1). Though the substantive provision of law nowhere provides any time limit up to which the seller should have collected the declaration or the buyer should have furnished the same to the seller. However, no collection of tax shall be made in the case of a buyer where the goods (subjected to TCS) are to be utilized for the purposes of manufacturing, processing or producing articles and things or for the purposes of generation of power and not for trading purposes. 31. It was submitted that the assessee firm has obtained declarations in Form 27C furnished by few buyers to establish that the assessee seller is not at all liable to collect TCS from the concerned buyer in as much as the subjected sales was made to the ultimate consumers for use in manufacturing, processing or producing of Beedies and hence the provision of section 206C was not applicable. It was submitted that these declarations in Form No.27C were furnished by the few buyers in the recent past only and hence, the assessee firm has furnished the same along with application under Rule 29 filed on 4-6-2018 though str....
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....(Mad.) 35. It was further submitted that in the instant case, although a ground was taken before the ld. CIT (A) however declarations could not be filed for the genuine difficulties and the existence of sufficient cause has been explained in the application filed by the assessee under Rule 29. It was submitted that the Tribunal which is meant to provide substantial justice should not indulge in technicality of law and the procedures and it should entertain an issue not agitated before AO or CIT (A), if it is a question of law or if facts are already on records. In case the facts need ascertainment, the Tribunal should not hesitate in remanding to the lower authorities to decide in accordance with law and after opportunity to the other side. In Indo Java & Co. v. IAC [1989] 30 ITD 161 (Delhi)(SB), the Special Bench has held that point which can be agitated in appeal before Tribunal by an appellant may also include points impinge on computation of income as shown by the assessee himself by mistake or otherwise and even agitated before ITO or ACC. In support, reliance was also placed on the decision of Hon'ble Madhya Pradesh High Court in case of CIT v. Kum. Satya Setia [1983] 14....
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....lso power to admit additional evidence in the interest of justice or if there exists substantial cause. The assessee having lost in first appeal and in order to get a fair deal and substantial justice from this Tribunal for deletion of the addition made by the Assessing Officer in respect of the loans and interest thereon has mustered relevant additional evidence and compiled it into two paper books. In order to do substantial justice to the appellant-assessee the additional evidence as compiled in the paper books has to be admitted in terms of rule 29 of the ITA T Rules and, therefore, it is admitted.-Pari Mangaidas Girdhardas v. CIT 1977 CTR (Guj) 647 followed; K.Venkata Ramaiah v. A. Sitarama Reddy AIR 1963 (SC) 1526, Kali Charan Ram Chander v. CIT [1978] 112ITR 405 (Cat), CIT v. Kum. Satya Sethia [1983] 37 CTR (MP) 66 : (1983) 143 ITR 486 (MP), R.S.S. Shanmugham Pillai & Sons v. CIT [1974] 95 ITR 101 (Mad) and Anaikar Trades & Estates (P) Ltd. v. CIT [1990] 82 CTR (Mad) 110 : [1990] 186 ITR 313 (Mad) relied on. (Paras 12, 15 & 18)." 37. It was further submitted that in the latter years as and when, declaration in Form 27C by the ultimate consumer - manufacturer was obtained, t....
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....larations from the buyers have been submitted in the prescribed form and verified in the prescribed manner to the effect that the goods are to be utilised for the purposes of manufacturing, processing or producing articles or things or for the purposes of generation of power and not for trading purposes. Drawing our reference to the findings of the AO, it was submitted by the ld DR that the Assessing Officer has clearly held that the assessee firm had failed to obtain the requisite forms in Form No. 27C from the buyers and submit the same to the ld. CIT(TDS) within the stipulated time. It was submitted that given that the assessee has not submitted the declarations in Form 27C either before the AO or even before the ld CIT(A), there is no infirmity in the order of the AO and ld CIT(A) in denying the same claim to the assessee. It was further submitted that the assessee's prayer under Rule 29 to admit such declarations in Form 27C therefore cannot be accepted at this stage as the same are in nature of additional evidence and the assessee has failed to show any reasonable cause which prevented him from obtaining such declarations in Form 27C for the instant year when the same wer....
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....ponding entry of the table as income tax. Clause (aa) of the explanation to section 206C, inter alia, provides that buyer with respect to sub-section (1) means a person who obtains in sale by way of auction, tender or any other mode, goods of the nature specified in the table or the right to receive any such goods but does not include a buyer in the retail sale of such goods purchased by him for personal consumption. 7. In the context of this exclusion clause contained in explanation of the term 'buyer, sub-section (1A) of section 206Cprovides as under:- "(1A) Notwithstanding anything contained in sub section (1), no collection of tax shall be made in the case of a buyer, who is resident in India, if such buyer furnishes to the person responsible for collecting tax, a declaration in writing in duplicate in the prescribed form and verified in the prescribed manner to the effect that the goods referred to in column (2) of the aforesaid Table are to be utilised for the purposes of manufacturing, processing or producing articles or things or for the purposes of generation of power and not for trading purposes." 8. Thus, in terms of the explanation clause (aa) any person who p....
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....rmed the order of Assessing Officer, upon which, assessee approached the Tribunal. The Tribunal allowed assessee's appeal observing that the Revenue had no dispute with respect to genuineness or co-relation between the sale and purchases covered under such certificates. In that factual background, the Hon'ble High Court has held as under: "4. Having heard learned advocates for the Revenue, we noticed that in terms of sub-section [1] section 206C of the Act, every seller would have to collect tax at source at the time of sale of goods at the prescribed percentage and deposit the same with the Government revenue unless in terms of sub-section [1A] thereof, the buyer has furnished to such seller, declaration in writing in a prescribed form and fulfilled in prescribed manner that the goods are to be utilized for the purpose of manufacturing, processing or producing articles or things, or for the purpose of generation of power and not for trading purpose. Sub-section [1] of section 206C is thus a substantive requirement of collection of tax at source and depositing of the same with the Revenue. Sub-section [1A] refers to a situation under which collection under sub-section [1]....
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....ction (1) would not apply. Sub-section (1A) of section 206C does not refer to any time limits for furnishing such declarations and therefore, the legislative intent was not to make the time limit mandatory or a pre-condition for availing the benefit of not collecting tax at the time of sale of goods aimed for specified purposes. When there was no dispute about such a declaration being filed in a prescribed format and there was no dispute about the genuineness of such declaration and co-relation between the goods sold, the delay in filing such declaration should be construed liberally and would not defeat the very claim where there is a substantial compliance with the requirement of filing the declaration. 45. In the present case, we find that the assessee firm has made the said claim under section 206C(IA) right at the time of survey proceedings where the statement of one of its partners was recorded on 23.03.2015 and again during the course of assessment proceedings stating that the sale of Tendu Leaves have been made to the persons/entities which are existing tax payers and who are engaged in manufacture of Beedies (refer response to question no. 8) though it was also submitted ....
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....ROI filed enclosed 8 M/s. JP Tobacco Products Pvt. Ltd. Damoh (M.P.) AAACJ7141G 11591849 ROI filed enclosed 9 Parbhudas Kishordas Tobacco Products PVT. Ltd. Nizamabad AABCP1495Q 10233471 ROI filed enclosed 10 Parbhudas Kishordas Tobacco Products PVT. Ltd. Damoh (MP) AABCP1495Q 2213394 ROI filed enclosed 11 M/s. Hyderabad Bidi Manufactures Hyderabad AABFH1252J 6050190 ROI filed enclosed 12 M/s. Arshad& Company Hyderabad AAFFA0570N 2355870 ROI filed enclosed 13 M/s Shaz Enterprises Hyderabad AJBPK1293R 4448515 ROI filed enclosed 14 M/s. Char Bhai Bidi Works Hyderabad AABFC0789P 56132915 ROI filed enclosed 15 M/s. Shaheen Traders Mysore (Karnataka) ADSPB5725E 920315 ROI filed enclosed 16 M/s. Star Traders Tanda (Up) ACCPS9843D 1562616 ROI filed enclosed Total (A) Rs. 25,82,64,467/- These are therefore existing income tax assessees who have filed their respective return of income and have also filed their declaration in Form 27BA. The assessee has also submitted that similar declarations in Form 27C have been obtained from the same parties for the financial years 2015-16, 2017-18 and 2018-19 and submitted before the ld CIT(TDS) and which ....
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....39;ble Supreme Court in case of Hindustan Coca Cola Beverage (P) Ltd v. CIT [2007] 293 ITR 226, there remains nothing to be recovered by way of TCS. The assessee accordingly carried the same belief and understanding and acted ignorantly because of lack of proper guidance by his advocate. Subsequently, when the Assessing officer took up the matter for scrutiny for A.Y 2008-09 and passed the order in month of March 2015, the assessee realized its mistake and started making efforts by way of reaching out to these buyers so that necessary declarations can be obtained and furnished before the ld CIT(TDS). However, the assessee again faced resistance from such buyers as they have already made the payment and doesn't want to be bothered with additional paperwork especially where no other supplier was asking for such declaration. However, with great efforts and persistence, these buyers have agreed to file their respective declarations and which have not being filed before us. We therefore find that the assessee has all along acted diligently and taken action basis the advice and assistance sought from its legal Counsel. It was initially advised not to collect TCS as taxes were already....
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....claration in the requisite format as mentioned in the Rules should be provided by the IT Act and not by the Rules. The Rules, in our opinion, cannot extend or restrict the provisions of the Parent Act. The Rules are framed by the Legislature by exercising its power under the Act and therefore, if any penalty provision by way of the exclusion of declaration benefit and submission of the declaration belatedly should be provided by the Act and the rules. The provision of sub-section (1A) of section 206C, in our view, do not provide the consequences of the delayed filing of the declaration. Though, it provides that it is to be filed on or before the 7th day of the next following month in which declaration is furnished to him. Therefore, though there is delay in issuing the declaration by the buyer, the assessee cannot be penalized or deprived from the benefit of the declaration given by the buyer. The only duty cast upon the seller to submit declaration in the following month in which the declaration received. No time limit has been provided by the statute on the buyer to submit the declaration in Form 27. In view thereof, the ground is required to be allowed. In the light of above, we....
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....that once the declaration referred to in section 206C (1A) was received by the assessee, then thereafter the assessee could not legally collect the TCS from such buyers and consequently the assessee cannot be treated as an assessee in default for not collecting TCS from such buyers. The above view finds support from the decision of the Hon'ble Gujarat High Court in the case of CIT v. Valibhai Khanbhai Mankad [2013] 261 CTR 538 (Guj.) wherein it has been held that, "Once the conditions of section 194C (3) were satisfied, the liability of the payer to deduct tax at source would cease. The requirement of such payer to furnish details to the income tax authority in the prescribed form within prescribed time would arise later and any infraction in such a requirement would not make the requirement of deduction at source applicable." Our view also finds support from the decision of Mumbai Bench of the Tribunal in the case of Karwat Steel Traders v. ITO (2013) 37 taxmann.com 190(Mum.) wherein it was held that, "Where declaration in Form 15G/15H were received by the person responsible to deduct tax, there was no liability on him to deduct TDS. Since separate provisions were prescribed....
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....ences in terms of certificates/declarations in Form 27BA and the same have been admitted by the ld CIT(A) without calling for a remand report from the AO. 52. Per contra, the ld AR at the outset raised a preliminary objection and submitted that the present appeal filed by the department is not maintainable in as much as on exactly identical facts and circumstances in the case of the same assessee i.e. in A.Y. 2008-09 also (as admitted by the ITO in Facts of the case), the assessee was held liable to TCS but the ld. CIT(A) classified the sale transactions of tendu patta/leaves in three categories and prepared three tables namely A,B & C and accordingly, complete relief with respect to the sale made under table A and B was granted and in few cases, the further relief was granted subject to verification by the AO. There also, in third category i.e. table C, the demand of TCS and interest thereon was confirmed vide her order dated 29-2-2016 in appeal no. 46/JPR/15-16. The Revenue however did not challenge the said order in further appeal and therefore, the finding of the CIT(A) has become final. It can't be denied that the assessee submitted the certificates and declarations in Fo....
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....available on record and find that the certificates in Form 27BA from the Chartered accountant and related declarations from the buyers were filed before the Assessing officer during the course of assessment proceedings as per submissions dated 13-2-2017 and the same have been taken on record and examined by the Assessing officer. It was observed by the Assessing Officer that he has gone through the documentation so submitted by the assessee firm and on perusal thereof, he noticed that complete information in the Form/certificate have not been given by the accountant/party as required by the legislature and most of the columns are either not filled up as required or simply mentioned as per details/enclosure. Moreover the accountant has signed the forms with conditional remarks "As certified by the buyer" whereas the forms should have been filled up and certified by the accountant itself on the basis of records. Further, some of the parties have not filed return on or before due dates prescribed under section 139 of the I.T. Act, 1961. Further, on appeal, we find that these certificates in Form 27BA from the Chartered accountant and related declarations from the buyers have again bee....
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....he incomes declared in the respective returns of income, which compliance the assessee has already made in this case as admitted by the ITO himself in principle and the ld. CIT(A) therefore rightly granted relief. It was further submitted that in view of the decision in the case of Hindustan Coca Cola Beverage (P) Ltd. v. CIT [2007] 293 ITR 226 (SC), the assessee was required to establish that the payees (buyers) have already taken into account the subjected transactions while computing the total income and have already paid the tax due on the incomes so declared. It is not disputed that the substantive compliance to this effect was already made by the assessee. Therefore, the assessee cannot be burdened with detailed minute technical requirement while filling Form 27BA and the ITO could not have found fault on this aspect. Though, notably in this case there is no such alleged deficiency either in the declaration or in the CA certificate. 58. We have heard the rival contentions and pursued the material available on record. The limited issue under consideration is whether at the time of submitting the certificates in Form 27BA as required under proviso to section 206C(6A), the asse....
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....ise also, the issue involved is directly covered in as much as in AY 2008-09, the CIT(A) similarly directed the ITO to verify the fact of ROI filing, against which the department not having gone in appeal, such an issue has already become final. Notably, thereafter the ITO has given effect to the CIT(A)'s order vide his order dated 22-3-2019 under section 206C/250. Hence, this ground of appeal deserves to be dismissed. 62. We have heard the rival contentions and pursued the material available on record. The relevant findings of the ld CIT(A) which are under dispute reads as under: '"Accordingly the AO is directed to allow the benefit of Rs. 1,34,89,762/- as per the ratio laid down by Hon'ble Apex Court in Hindustan Coca Cola (supra) only after making verification of the return of income filed by the respective parties case the appellant failed to do so, the liability of TCS is on the appellant." 63. On perusal of the aforesaid findings, we find that the ld CIT(A) has clearly held and directed the AO to allow the benefit to the assessee in light of Hon'ble Supreme Court decision in case of Hindustan Coca Cola which he has discussed at length in the earlier part o....