9911796707
TMI Blog2019 (10) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... as CIT(A) s action raising the impugned demands in assessee s case since he had not collected TCS from the mining companies. Benefit of sec. 206C(6A) first proviso inserted by the Finance Act, 2012 with effect from 01.07.2012 - The legislature had instituted the aforesaid proviso in the Act vide Finance Act, 2012 with effect from 01.07.2012 in sec. 201(1) of the Act to be applicable in case of TDS deductor at the time of his assessment u/s. 40(a)(ia) vide second proviso inserted by the Finance Act, 2012 with effect from 01.04.2013. And also that various recent judicial precedents in Ansal Landmark Township [ 2015 (9) TMI 79 - DELHI HIGH COURT] and PCIT vs. Perfect Circle India Pvt. Ltd. [ 2019 (1) TMI 1532 - BOMBAY HIGH COURT] and tribunal s coordinate bench s orders hold that the aforesaid proviso carries retrospective effect being curative in nature. We observe that the very line of reasoning also deserves to be adopted qua application of sec. 206A (first proviso) as well inserted by the Finance Act, 2012 with effect from 01.07.2012 to this effect as applicable in case of TCS collection than TDS deduction. We therefore decline the Revenue s instant technical argument th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above stated delay is attributable to circumstances beyond his control. The Revenue is fair enough in not rebuting all these averments supported by the necessary press note(s) as well as appellant / assessee s duly sworn affidavits. Hon'ble apex court s landmark decision COLLECTOR, LAND ACQUISITION VS. Mst. KATIJI (1987) 167 ITR 471 (SC) settled the law long back that the case of substantial justice must prevail our all technical aspects. We therefore condone the impugned identical delay of 341 days in filing all the instant five appeal(s). These cases are therefore taken up for adjudication on merits. 3. We find that the assessee has challenged correctness of the lower authorities action raising the impugned Tax Collection at Source demands of ₹35,75,160/- ,₹39,50,890/-, ₹53,65,680/-, ₹54,69,100/- ₹37,30,050/-; (assessment year-wise) respectively. There are does not appear in dispute between the parties that this assessee; the District Land Land Reforms Office, is the tax collector since functioning as the administrative District Magistrate collecting royalty and cess against short term quarry permit (licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eave to add to, alter, amend, modify, substitute, delete and/or rescind all or any of the grounds of appeal on or before the final hearing if necessary. 11 3. Discussions and Findings; The present appeal is for the assessment year 2010-11, but the facts and issues are identical for five assessment years against which appeals have been filed and are being disposed off along with this appeal. The default on the part of the appellant had occurred over five assessment years: 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15. The appeals for all the five assessment years are being disposed off through different orders after examination of all facts for the relevant assessment years. The facts of each appeal are found to be identical. These are as enumerated below. The undisputed facts of this appeal, in brief, are as under: The appellant is a body that is part of the State Government of West Bengal working as Tax Deductor and Collector under TAN- CALD04421E. The appellant is also the additional District' Magistrate for the District of Burdwan. The appellant has collected Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that itself was part of the government and that the provisions of the statute could not be made subject to circulars/instructions etc. from superior authorities of any deductor/collector. He then proceeded to hold that since the appellant was responsible for the deduction of TCS in respect of the said payments and for its deposition in the government treasury, and had failed to do either, the appellant falls within the section 206C(1C) of the Act and was also liable to pay simple interest at the specified rates for the failure to collect and pay tax so collectible from source. During appeal proceedings, the appellant reiterated his stand that he was ignorant of the said provisions and had received no instructions from his superiors regarding these provisions of the Income Tax Act. The appellant states that he has started collecting TCS after coming to know of the said provisions and this proves' his bona fides. The appellant further states that since the leases for the said 4quarries had expired quite some time back, it was difficult to trace the lessees or even obtain their PANs, hence it was difficult to realize the tax from these persons. He however assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invited to the assessee s categorical explanation in the lower proceedings that the state government had not issued any instructions regarding TCS collection in case of receipts coming from mining companies. We find merit in learned departmental representative s argument in principle. There is hardly any dispute that legislature has prescribed TCS collection u/s. 206(1C) @ 2% regarding mining and quarry lincence or lease etc., at the time of receipt of the specified sums. We therefore observe that the mere fact that the state government had not issued any instructions to the field authorities regarding compliance of the impugned statutory provision does not carry any merit since ignorance of law by either the government or its agency is exercising various statutory functions cannot be accepted as a justifiable reason. We therefore concur with the Revenue s argument supporting the Assessing Officer as well as CIT(A) s action raising the impugned demands in assessee s case since he had not collected TCS from the mining companies. 6. Next comes yet another equally important aspect as to whether the assessee deserves the benefit of sec. 206C(6A) first proviso inserted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for computing income followed by payment of taxes dues thereupon as accompanied by certificate to this effect from the accountant concerned. We wish to observe here that sec. 201 applies in case of TDS deduction as against the impugned reverse mechanism of TCS collection. The above former limb applies in case of payer / assessee acting as TDS deductor and latter one comes into play in an instance of a specified recipient receiving the specified payments from the payer. In other words, the purpose of both these mechanism is to ensure compliance of the provision at the time of payment of the specified sums. 8. The legislature had instituted the aforesaid proviso in the Act vide Finance Act, 2012 with effect from 01.07.2012 in sec. 201(1) of the Act to be applicable in case of TDS deductor at the time of his assessment u/s. 40(a)(ia) vide second proviso inserted by the Finance Act, 2012 with effect from 01.04.2013. And also that various recent judicial precedents (2016) 279 CTR 384 Commissioner of Income-tax vs. Ansal Landmark Township hon'ble Bombay high court s decision in PCIT vs. Perfect Circle India Pvt. Ltd. in Tax Appeal No.707 of 2016 dated 07.01.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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