TaxTMI 
TaxTMI 
2020 (5) TMI 455
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and on facts of the case, for want of jurisdiction and 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 ki....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Act for TCS defaults." 3. Briefly stated, the facts of the case are that the assessee is a partnership firm engaged 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 1961, the Assessing Officer held that the assessee firm 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Category B: The names of11 buyers and the respective amount of sales made to them totaling to Rs. 1,59,72,693/- along with copies of certificates (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 respec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted him to make enquires directly from his counter part, having the jurisdiction over that particular buyer payee to bring the truth on surface. 'But without exercising these powers and by merely making and repeating 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 ig....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and remote places of Rajasthan, MP and Maharashtra, whereas all forms 27BA has been signed by same accountant on a single date. How the ld. Chartered Accountant that is the expert could sign the certificate on a single date. Firstly, does not reduces the evidently 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he department is nothing sort of harassment of an honest taxpayer citizen of the country. We have already submitted that despite repeated request the predecessor Id. ITO had started proceedings of al the year and / pressed for the submissions of the details, making for the assessee almost difficult even 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 5.31 have carefully considered the rival contentions raised by the parties. The ITO contended that the provision of TCS are not similar to TDS provisions and therefore, the decision in Hindustan Coca Cola (Supra) should not be applied in this case. Though he agreed that the object of deduction/ collection of TDS/ TCS is the same but the liability 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 ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....figure of the sales of Rs. 25,58,31,594/- However, the ld. AR pointed out in its submission that the correct figure otherwise is Rs. 27,19,31,589/- which fact, is not disputed by the AO. Based on the copies of the certificates by the chartered accountant and the declarations by the partner of the appellant firm in the prescribed form 27BA copies of the acknowledgements 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) A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g ROI filling details & copy of website filed. 19 M/s. Babu Bhai Rashid Bhai Karauli (Rajasthan) ACAPA0895P 2390012 A chart showing ROI filling details & of website filed. 20 M/s. Shivam Trading Company Amroha (U.P.) CVKPK2262H 1115200 A chart showing ROI filling details & copy of website filed. 21 M/s Meh boob Bidi Factory Amroha J.P. Nagar(U.P.) AAWFM0254A 5665360 A chart showing ROI filling details & copy of website filed. 22 M/s Hariom Traders Bhiwandi (Mumbai) AGCPY4276C 162142 A chart showing ROI filling details & copy of website 23 M/s. Shankara 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/- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the AY 2013-14 was passed by the ITO TDS-3, Jaipur without having valid jurisdiction. 10. It was submitted that the said ground was also taken before the ld CIT(A), However, it appears that this ground has escaped his attention and remain to be decided and therefore, this issue may be restored to the file of ld CIT(A) to be decided after providing opportunity to the assessee. Further, the Id AR reiterated the submissions made before the Id. CIT(A) which read as under: "The Impugned order was passed without having jurisdiction: It is submitted that the jurisdiction over the assessee under TAN as per section 124(1) rested with the ITO TDS, Kota with whom the TDS returned were being regularly filed by the assessee. This fact 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 K....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of hearing, the same was not pressed by the ld AR on behalf of the assessee, hence, the same is dismissed as not pressed. 14. In ground no. 3.1, the assessee has challenged the confirmation of demand towards TCS amounting to Rs. 1,77,360/-. 15. In this regard, the ld AR submitted that the total amount of sale of Tendu leaves worth Rs. 27,19,31,589/- consisted of different categories (A, B & C) of buyers (categorized based on documentation on record) which have been examined by the CIT(A) as stated at pg 14 to 16 of his order and accordingly, feeling satisfied with the contentions of the assessee and submissions/documentation in support thereof, held that the assessee was not in default to the extent of the sales totaling to Rs. 25,82,64,467/- and Rs. 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 & ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssee has challenged the findings of the ld CIT(A) relating to charging of interest under section 206C(7) of the Act. 20. During the course of hearing, the ld AR submitted that the Assessing officer had charged interest under section 206C(7) of the IT Act, 1961 on the entire amount of Short / Non Collection of tax at source under section 206C(6) alleging that assessee has committed a clear default of non-collection of TCS w.r.t. sale amount of Rs. 25,58,31,594/- (correct Sale amount is Rs. 27,19,31,589/-) and in the first appeal, the ld. CIT(A) has directed the AO as under: "So far as the charging of interest under section 206C(7) is concerned, the AO is directed to calculate the interest for period of starting from the due date of deposit of TCS after collection to the date of 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... part thereof on the amount of such tax from the date on which such tax was collectible to the date on which the tax was actually paid and such interest shall be paid before furnishing the quarterly statement for each quarter in accordance with the provisions of subsection (3): Provided that in case any person responsible for collecting tax in accordance with the provisions of this section, 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 but 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 or licensee 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 provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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. 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 upheld being justified. So far as the charging of interest under section 206C(7) is concerned, the AO is directed to calculate the interest for period of starting from the due date of deposit of TCS after collection to the date of filing of the return by respective parties. 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 direct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the case of the assessee firm. Therefore, the findings of the ld CIT(A) which are in consonance with the proviso to section 206C(7) are hereby confirmed subject to the modification that no interest shall be leviable for the period prior to 1.07.2012 and to that extent, the assessee shall be eligible for relief. The ground of appeal is thus partly allowed. 29. In Ground no. 4, the assessee firm has challenged the action of ld CIT(A) in not considering that the case fall under under section 206C(1A) r/w Rule 37C in as much as the entire subjected sales of Tendu leaves 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 and have been wrongly invoked by the AO. 30. In this regard, it was submitted that the provision contained under section 206C (1A), in a mandatory term, provides that the assessee 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e declarations are filed, the Courts may admit the same in the larger interest of justice. 34. It was submitted that under similar circumstances, the Tribunal in the case of Chandmal Sancheti v. ITO, TDS-2, Jaipur [2016] 181 TTJ 0906 have remitted the matter back to the ITO to consider the declaration filed in Form 27C belatedly by the assessee. Reliance was also placed on the Tribunal decision in case of Karnataka Forest Development Corporation Ltd. v. ITO, TDS [2015] ITL 1007 (Bang.) (Trib.) wherein the Tribunal has remanded the matter back to the AO for proper verification and thereafter re-adjudication of the issues involved in accordance with law. Further, reliance was placed on the Hon'ble Gujarat High Court decision in case of CIT (TDS) v. Siyaram Metal Udyog (P.) Ltd. 2016 ITL 4028 (Guj.) and Hon'ble Madras High Court decision in case of CIT v. Adisankara Spinning Mills (P.) Ltd. 226 Taxman 44 (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Industries v. ITO [1995] 52 ITD 0286 (Ahd) wherein it was held as under: "The Tribunal, under the scheme of the IT Act, 1961, is a final fact finding authority and in order to enable it to decide disputes brought before it by way of second appeal in a lawful, fair and judicious manner it has necessarily to look into and consider such evidence and other material having a nexus and bearing on the subject-matter of the appeal viz., the dispute involved. Even according to the provisions of rule 29 of the ITAT Rules, the Tribunal is empowered to receive and admit additional evidence for any other substantial cause. It is amply settled and clear that this Tribunal can admit additional evidence in terms of rule 29 if the receipt or admission of additional evidence is vital and essential for the purpose of consideration of the subject-matter of the appeal and arrive at a final and ultimate decision. The Tribunal, therefore, has also 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....corded during the TDS survey on 23.03.2015 and reproduced in the assessment orders passed under section 206C(6)/(7) for all these years that sale of Tendu leaves have been made to the manufacturers of Beedies and although no declaration u/r 37C in form 27C was received from such buyers, however, the assessee had written/ requested to the concerned buyers to send the declaration/certificates and the office of the ITO was also been duly informed on this subject along with the address of such buyers. It was accordingly submitted that the provisions of section 206C (1A) are clearly attracted, declarations in Form 27C may be admitted as prayed in application filed under Rule 29 and the assessee firm may be granted the necessary relief and the matter may be remanded to the file of the AO for necessary verification. 40. The ld DR is heard who has submitted that the provisions of section 206C(1A) can be invoked only in a scenario where the declarations 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 purp....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The Assessing Officer turned down his contention and proceed to make the additions. Eventually, when the issue reached the Tribunal, the Tribunal relying on earlier decision in case of Bharti Metals held that the items in question were scrap. However, in view of the fact that the assessee had admittedly filed a declaration in form 27-C collected from the buyers and given that there was no dispute about the genuineness of the contents thereof ruled in favour of the assessee. In that factual background, the Hon'ble High Court has held as under: "6. Section 206C of the Act pertains to profits and gains from the business of trading in alcoholic liquor, forest produce, scrap etc. Sub-section 1 of section 206C provides that every person being a seller shall at the time of debiting of the amount payable by the buyer collect from the buyer of any of the goods specified in column (2) of the table, a sum equal to the percentage specified in the corresponding 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 mo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re was substantial compliance with the requirement of filing the declaration." 43. Sub-sequently, the Hon'ble Gujarat High Court had an occasion to examine the aforesaid provisions again in case of Commissioner of Income-tax (TDS) v. Chhaganbhai K Sanghani [2018] 94 taxmann.com 459 (Guj). In that case, the respondent-assessee was a dealer in scrap. During the period relevant to the assessment year 2011-12, he had sold scrap of Rs. 12.72 Crores on which he was required to collect tax at source in terms of section 206C(1) of the Income-tax Act, 1961 unless the buyers had provided him necessary certificates referred to in sub-section (1A) thereof. Before Assessing Officer, the assessee produced no such certificates. The Assessing Officer therefore, in terms of sub-section (7) of section 206C, levied tax and interest. In appeal before the Commissioner, assessee produced necessary certificates issued by the buyers. The Commissioner, however, ignored such certificates and confirmed 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-relat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of not deducting tax at the time of sale of goods aimed for specified purpose. This Court in case of CIT [TDS] v. Siyaram Metal Udyog (P.) Ltd. [2016] 71 taxmann.com 204/240 Taxman 578 [Gujarat] had dealt with somewhat similar situation, wherein following observations have been made.." 44. The legal position which is thus laid down by the Courts as per the aforesaid decisions is that sub-section (1) of section 206C is a substantive provision for collection of tax at source and depositing of the same with the Revenue. Sub-section (1A) is again a substantive provision which refers to a situation under which collection under sub-section (1) would not have to be made at first place. The requirements of sub-section (1A) are that the buyers should provide to the seller, a declaration in prescribed form, verified in the prescribed manner. The main thrust of sub-section (1A) of section 206C is thus to make a declaration as prescribed, upon which, the liability to collect tax at source under sub-section (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 l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvolved in manufacturing of Beedies and uses Tendu leaves for manufacturing such Beedies. The sales amount mentioned in these certificates matches with the sales amount as reflected and examined by the ld CIT(A) as apparent from findings in his order (para 5.3, page 14-15): S. No. Name of Buyer PAN Amount in F.Y. 2012-13 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 Tobacc....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., necessary relief under section 206C(IA) can be granted and bestowed on the assessee firm. 46. Having said that, the fact remains that there has been a delay in obtaining such certificates which have now being filed for the first time by way of additional evidence under Rule 29. The question therefore is whether there is a reasonable cause for such delay in furnishing such certificates and the delay can be condoned and such certificates can be taken on record and admitted under Rule 29. In its application filed under Rule 29, the assessee has submitted that its tax affairs were handled by Shri Sitaram Agarwal, Advocate who was an aged person and was suffering from various ailments at the relevant point in time and subsequently, he had expired. The assessee firm acted on his advice and assistance from time to time. Late Shri Sitaram Agarwal was of the belief and understanding that collection of tax from the buyers would amount to double taxation as the assessee firm has already paid the taxes to the forest department while purchasing the Tendu leaves. Similarly, he was also of the belief and understanding that where the buyers have filed their respective return of income and pai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. The delay in filing such declarations being a technical breach is thus condoned and the same are being admitted as there is substantial compliance with the requirement of filing the declarations. We find that similar view has been taken by the Coordinate Bench in case of Chandmal Sancheti v. ITO (supra) where it was held as under: "10. We have heard the rival contentions of both the parties and perused the material available on the record. In our view, the appeal is continuation of the assessment proceedings and even if the declaration is filed by the assessee at the appellate stage in the prescribed format by disclosing all information as contemplated under Form 27 read with Rule 37 of the Rules, the benefit of declaration should be given to the assessee. The ld. Assessing Officer/CIT (A) should extend the benefit of declaration to the assessee. Rule 27 though is couched in the mandatory language by using the word "Shall" but the Rule 37 has not given the consequences of not filing the declaration with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2) of the aforesaid Table are to be utilized for the purposes of manufacturing, processing or producing articles or things [or for the purposes of generation of power] and not for trading purposes." A perusal of the aforesaid provision shows that the assessee is not legally obliged to collect the TCS from a buyer who furnishes a declaration to the assessee to the effect that the purchases made by such buyer are to be utilized for the purposes of manufacturing, processing or producing articles or things or for purposes or generation of power and not for trading purposes. Thus, in a case where such a declaration is furnished by the buyer to the seller, the seller is not obliged to collect TCS from such buyer and consequently the seller assessee cannot be treated as an assessee in default in respect of not collecting TCS from such buyer. We find that the Commissioner of Income Tax (Appeals) upheld the treatment of assessee as assessee in default in respect of those parties from whom the assessee already received declaration in Form 27C on the ground that such declaration was not furnished by the assessee to the Chief commissioner or Commissioner as required by the provisions ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Assessing Officer for proper verification and thereafter read judication of the issue as per law in the light of the discussion made hereinabove after allowing the assessee a reasonable opportunity of hearing." 48. In light of aforesaid discussions, in the entirety of facts and circumstances of the case and respectfully following the decisions of Hon'ble Gujarat High Court (supra) as well as of the Coordinate Benches (supra), the matter is set-aside to the file of the Assessing officer for verification of declarations so filed by the assessee in Form 27C and examination of claim of the assessee under section 206C(IA) afresh in accordance with law. The ground of appeal is thus allowed for statistical purposes. 49. In the result, the appeal of the assessee is disposed off in light of aforesaid directions. ITA No. 778/JP/2018 50. We now refer to the Revenue's appeal. In Ground no. 1, the Revenue has challenged the action of ld. CIT(A) in allowing relief to the assessee firm on the basis of additional evidence without calling for remand report under Rule 46A and enquiry under Sec 250(4) of the Income Tax Act, 1961. 51. In this regard, the ld DR referred to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her, evidently, the ld. CIT(A) has made his own enquiry from the website of the department for his satisfaction, which he is empowered to make under section 250(4) r.w. Rule 46(A)(4) without even confronting the ITO. Reliance was placed on the decision in case of DDIT v. Thoresen Chartering Singapore (PTE) Ltd. [2008] 15 DTR 0395 (Mum) wherein it was held that "where assessee under direction of commissioner (Appeals) files additional evidence before him, there is no requirement for confronting assessing officer documents/evidence entertained by commissioner (Appeals) at first appellate stage under rule 46(a) (4)." Thus there was no requirement u/r 46A. It was further submitted that it only appears because of a typographical inadvertent mistake of the ld. CIT(A)-III that the word "remand report" was mentioned in his order. Therefore, the ld. CIT(A)-III has recently passed a corrigendum order (Pg 13 Line 27), copy of which has already been filed with the Registry and with the ld. D/R vide letter dated 5-9-2018, wherein the appellate order line no. 27g now reads "impugned order" in place of "remand report". In view of this corrigendum order, the ground taken by the Revenue has become ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7BA filed by the assessee and submitted that while filing such certificates, the assessee has not paid interest under section 206C(7) and has not provided the challan details and which has not been appreciated by the ld CIT(A) and the relief has wrongly been allowed to the assessee. 57. Per contra, the ld AR submitted that the revenue's ground appears to be misconceived so far as it alleges the deficiency in Form 27BA in as much as to avail the benefit of the Proviso to section 206C(6A), there is no mandatory precondition to make the payment of interest under section 206C(7) and hence the benefit cannot be denied. Moreover, giving the details of interest and details of challans in Form 27BA is optional. Thus, where the assessee has paid the interest, the relevant details may be filled in Form 27BA, but not required otherwise. What all is required is that the assessee should furnish a certificate from the CA in the prescribed form to the effect that they are (i) assessed to tax, (ii) have already furnished their return of income under section 139(1) of the Act for the relevant year i.e. AY 2009-10 (iii) have already taken into account the cost of the purchases of tendu leaves....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion seeking requirement and not a requirement in absence thereof which will makes the certification in Form 27BA invalid where there is substantial compliance as to the mandatory requirements of certification. In the result, the ground so taken by the Revenue is dismissed. 59. In Ground no. 3, the Revenue has challenged the action of the Id CIT(A) where he has set aside the issue to the AO for verification and directed to allow relief on verification under section 250(1) as per the ratio of judgment in the case of M/s Hindustan Coca Cola (P) Ltd. where the words "he may set aside" have been omitted after amendment w.e.f. 1-6-2001. 60. The ld DR referred to the findings of the ld CIT(A) at page 17 of his order where he has directed the AO to allow the benefit after making verification of return of income filed by the respective assessees and submitted that the ld CIT(A) has erred by setting aside the matter to the AO where he has so such powers to set-aside the matter to the AO. 61. Per contra, the ld AR submitted that there appears to be a complete misreading of the order of the ld. CIT(A) in as much as he merely directed the AO to verify the fact of filing of ROI. He did ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion at Source (TCS) under Chapter-XVIIBB of the Income Tax Act, 1961 and the facts & the judgment held in assessment proceedings under section 201(1)/201(1A) for default in the case of M/s Hindustan Coca Cola (P) Ltd are squarely applicable in the case of the assessee for assessment proceedings under section 206C(6)/206C(7) of the Act for TCS defaults. 65. The ld DR relied on the findings of the Assessing officer and submitted that there are specific provisions contained in section 206C in respect of tax collection at source and the liability of assessee should therefore be governed by such provisions and not in terms of the decision of Hon'ble Supreme Court in the case of M/s Hindustan Coca Cola (P) Ltd. rendered in context of tax deduction at source. 66. Per contra, the ld AR supported the findings of the ld CIT(A) and submitted that the issue involved is directly covered in as much as in A.Y. 2008- 09 and onwards till A.Y. 2012-13, the CIT(A) had already held that TDS and TCS provision are principally the same and against which the department not having gone in appeal, such an issue has already become final. Even the Tribunal in ITA No. 316/JP/2018 vide its order dated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....¤¨à¥‡ की पà¥à¤°à¤•à¥à¤°à¤¿à¤¯à¤¾ बताà¤à¤‚ à¤à¤µà¤‚ किन-किन राजà¥à¤¯à¥‹à¤‚ के साथ तथा राजà¥à¤¯à¥‹à¤‚ का नाम à¤à¥€ बताठ। - उतà¥à¤¤à¤° मैं बीड़ी तथा तेंदू पतà¥à¤¤à¥‡ का वà¥à¤¯à¤¾à¤ªà¤¾à¤° मैं. ईद मोहमà¥à¤®à¤¦ निजामà¥à¤¦à¥à¤¦à¥€à¤¨ फरà¥à¤® के अनà¥à¤¤à¤°à¥à¤—त साà¤à¥‡à¤¦à¤¾à¤° के रूप में कारà¥à¤¯ करता हूठतथा तेंदू पतà¥à¤¤à¥‡ का वà¥à¤¯à¤¾à¤ªà¤¾à¤° à¤....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ू पतà¥à¤¤à¥‹à¤‚ की बिकà¥à¤°à¥€ पर कोई टी. सी. à¤à¤¸. संगà¥à¤°à¤¹à¥€à¤¤ नहीं किया है। कृपया आप बताà¤à¤‚ कि तेंदू पतà¥à¤¤à¥‹à¤‚ के वà¥à¤¯à¤¾à¤ªà¤¾à¤° पर टी. सी. à¤à¤¸ का संगà¥à¤°à¤¹à¤£ करके जमा नहीं कराने की सà¥à¤ªà¤·à¥à¤Ÿà¥€à¤•à¤°à¤£ देवें। उतà¥à¤¤à¤°- तेंदू पतà¥à¤¤à¥‹à¤‚ के सà¤à¥€ खरीददार टेकà¥à¤¸à¤ªà¥‡à¤¯à¤° है तथा बीड़ी निà....
X X X X Extracts X X X X
X X X X Extracts X X X X
....27 जमा तथा डिकà¥à¤²à¥‡à¤°à¥‡à¤¶à¤¨ सरà¥à¤Ÿà¥€à¤«à¤¿à¤•à¥‡à¤¶à¤¨ ऑफ वायर ( Rule-37C) जमा करा रखा हैं या नही । उतà¥à¤¤à¤° - डिकà¥à¤²à¥‡à¤°à¥‡à¤¶à¤¨ सरà¥à¤Ÿà¥€à¤«à¤¿à¤•à¥‡à¤¶à¤¨ आफ बायर (Rule 37C) के तहत फॉरà¥à¤® 27 सी जमा नही कराया है। लेकिन हमने फॉरेसà¥à¤Ÿ विà¤à¤¾à¤— से टैकà¥à¤¸ देकर कचà¥à¤šà¥‡ पतà¥à¤¤à¥‡ को पà¥à¤°à¥‹à¤¸à¥‡à¤¸ किया और उपरोकà¥à¤¤ सरà¥à¤Ÿà....