2018 (7) TMI 952 - AT - Income Tax

Demand of interest u/s 206C(7) - chargeable from the assessee till the date of filing of return of income - Liability to make TCS u/s 206C(1C) r.w.s 206C(6) - Held that - Undisputedly, the assessee is an AOP and the contract for collection of toll was given to its member i.e. M/s JV Kulkarni & Friends Associates, Buldhana. CIT(A) had already concluded that no demand u/s 206C(1C) lies in the case of assessee. Even otherwise the provision of Sec. 206C(7) of the Act were not applicable to the earlier years clause of section 206C(7) of the Act with regard to charging of interest was introduced by Finance Act, 2012 and was thus not applicable to any years prior to that. AOP and its members are not separate entities, therefore no TCS was required to be collected from its member. Even, in the remand report, CIT(A) has admitted that assessee was not liable to make TCS u/s 206C(1C) r.w.s 206C(6), thus there was no question of charging interest u/s 206C(7) of the Act. More particularly, the proviso clause with regard to charging of interest u/s 206C(7) of the Act was introduced by Finance Act, 2012 and since the present case pertains to AY 2009-10. Therefore, the assessee was not covered under the said provision, hence, was not liable to pay interest. We order accordingly and also these grounds raised by the assessee.

Summary

Issues Involved:
- Sufficiency of opportunity given to the assessee
- Legality of order based on statement recorded on survey
- Authority of an AOP to collect TCS from its member
- Verification of necessary taxes on income by the Assessing Officer
- Validity of order served on a person different from the one in whose name it is passed
- Applicability of interest under section 206C(7) of the Act
- Condonation of delay in filing appeals for assessment years 2010-11 to 2012-13

Analysis:

Issue 1: Sufficiency of opportunity given to the assessee
The appellant contended that there was no sufficient opportunity given to the assessee. The order was based on a statement recorded during a survey, which the appellant argued was not legal. However, the Assessing Officer had accepted the contention of the appellant, as per the judgment of the Hon'ble Supreme Court, and found no demand under section 206C(6) in the case of the appellant.

Issue 2: Authority of an AOP to collect TCS from its member
The Assessing Officer found the appellant liable to pay TCS under section 206C(1C) r.w.s 206C(6) and 206C(7) of the Act for not collecting TCS from a contractor. The appellant argued that as a member of an AOP, there was no default in not making TCS. The CIT(A) concluded that no demand under section 206C(1C) was applicable to the appellant, and the provision of section 206C(7) was not applicable to earlier years.

Issue 3: Applicability of interest under section 206C(7) of the Act
The appellant challenged the order of the CIT(A) regarding the chargeability of interest under section 206C(7) till the date of filing the return of income. The Tribunal found that the AOP and its members are not separate entities, and no TCS was required to be collected from its member. The provision of section 206C(7) was introduced by the Finance Act, 2012, and was not applicable to the appellant for the relevant assessment year.

Issue 4: Condonation of delay in filing appeals
The appeals for assessment years 2010-11 to 2012-13 were filed after a significant delay. The appellant sought condonation of the delay, citing a belief that the decision for the preceding year would be applicable. The Tribunal held that the delay was not sufficiently justified but decided to condone it based on the principle of natural justice, equity, and fair play.

In conclusion, the Tribunal allowed all the appeals filed by the assessee, considering the merits of each issue discussed and the specific circumstances surrounding the case. The judgment provided detailed reasoning for each issue raised by the appellant, ultimately leading to the favorable decision in their favor.