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2012 (7) TMI 693 - AT - Income TaxNon remittance of TDS to Government account - Demand raised u/s 201(1) & interest u/s 201(1A) - survey u/s. 133A - AO issued the notice dated 21.12.2011 and claimed that the same was served on the assessee on the same day whereas claim of the assessee is that the said notice was received on 29.12.201 - Held that - In the copy of the said notice, it is mentioned that received on 29.12.2011 , however nothing is brought on record that in fact the said notice was received on 29.12.2011 because no other independent document like postal envelope or copy of the acknowledgement was produced before us to substantiate that claim. We therefore, in the absence of proper evidence, are unable to conclude as to whether the said notice was received by the assessee on 21.12.2011 as claimed by the department or on 29.12.2011 as claimed by the assessee. Letter of adjournment by assessee - Held that - As assessee vide letter dated 19.12.2011 written to the AO sought an adjournment and requested to adjourn the case to some time after 05.01.2012, however nothing is brought on record as to whether the said request was rejected or accepted by the AO. It is well settled that nobody should be condemned unheard as per the maxim audi alteram partem. Reasonable time for opportunity of being heard was required to be given to the assessee as the AO decided the issue in haste and the time allowed to the assessee was not sufficient, particularly when an adjournment was sought by the ld. counsel for the assessee for 05.01.2012 - the orders u/s. 201(1) & 201(1A) have been passed on 30.12.2011, even when the present case was not a time barring case where orders were to be passed within a short period - thus, it is advisable set aside the impugned order and remand the same to the file of AO for fresh adjudication in accordance with law, after providing due and reasonable opportunity of being heard to the assessee - in favour of assessee for statistical purposes.
Issues Involved:
1. Jurisdiction of the Assessing Officer (AO) under Section 201(1) and 201(1A) of the Income-tax Act, 1961. 2. Adequacy of opportunity provided to the assessee for being heard. 3. Determination of default and interest under Section 201(1) and 201(1A). 4. Adjustment of taxes paid by the recipient against the assessee's liability. 5. Procedural compliance under Section 200A(1) and Section 192(3). Detailed Analysis: 1. Jurisdiction of the Assessing Officer (AO) under Section 201(1) and 201(1A): The assessee argued that the AO lacked jurisdiction to pass orders under Sections 201(1) and 201(1A) as the authorized person is DGIT(Systems)/NSDL per Section 200(3). The Tribunal clarified that Section 200(3) is procedural and does not remove the AO's power to initiate proceedings under Section 201(1). Therefore, the AO had jurisdiction to pass the orders. 2. Adequacy of Opportunity Provided to the Assessee: The assessee claimed insufficient opportunity for being heard, stating that the notice dated 21.12.2011 was received on 29.12.2011, and the order was passed on 30.12.2011. The Tribunal noted that the AO did not respond to the assessee's adjournment request dated 19.12.2011. The Tribunal emphasized the principles of natural justice, referencing the maxim "audi alteram partem" and the case law Radhika Charan Banerjee v. Sambhalpur Municipality, which mandates adequate opportunity for being heard. The Tribunal concluded that the AO acted in haste, and the time allowed was insufficient. 3. Determination of Default and Interest under Section 201(1) and 201(1A): The AO held the assessee in default for not remitting TDS to the government's account and levied interest under Section 201(1A). The assessee argued that the order was non-speaking and did not provide reasons for the default determination. The Tribunal observed that the AO must be satisfied that the failure was without good and sufficient reason, as per the proviso to Section 201(1). The Tribunal found that the AO's order lacked clarity on how the default and interest were determined. 4. Adjustment of Taxes Paid by the Recipient: The assessee contended that taxes paid by the recipient should be adjusted against its liability. The Tribunal referred to Section 200A(1)(c) and Section 192(3), which allow for adjustments of excess or deficiency in TDS. The Tribunal noted that the AO did not consider whether the recipients had paid the tax and filed returns. The Tribunal emphasized the need for the AO to exhaust remedies for adjustments before declaring the assessee in default. 5. Procedural Compliance under Section 200A(1) and Section 192(3): The Tribunal highlighted that Section 200A(1) outlines the procedure for processing TDS statements, including adjustments for errors and computing interest. The Tribunal found that the AO did not follow the prescribed steps, particularly in considering adjustments for taxes paid by the recipients. The Tribunal also referenced the case law Mittal Steel Ltd. v. ACIT, which mandates providing an opportunity to the assessee and adhering to procedural safeguards. Conclusion: The Tribunal set aside the impugned orders and remanded the cases to the AO for fresh adjudication, emphasizing the need for providing due and reasonable opportunity to the assessee and considering adjustments for taxes paid by the recipients. The Tribunal directed the AO to follow the procedural requirements under Sections 200A(1) and 192(3) and ensure that the assessee's rights are protected. The appeals were allowed for statistical purposes.
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