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TMI Blog2022 (8) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... the first Appellate Authority as well as the Tribunal were right in granting the relief in favour of the assessee. Learned senior counsel appearing for the respondent/assessee pointed that in column 1(e) of Form 26Q the assessee is required to answer the question Has any statement been filed earlier for this quarter (Yes/No) . Clause 1(f) of the said Form states, if answer of (e) is `Yes , then Provisional Receipt No. of original statement . On seeing these questions which are to be answered by the assessee in the statutory Form 26Q, it gives an impression that the assessee is entitled to file more than one statement and probably for that reason a query was made to the assessee if he has filed any statement earlier for the said quarter. In any event, the Assessing Officer having not found fault with the contents of Form 26Q filed by the assessee, on a technical ground the relief cannot be denied to assessee and the Tribunal was right in dismissing the revenue s appeal. Tribunal had noted the decision of the Calcutta Tribunal in the case of Soma Rani Ghosh. It is submitted by the learned standing Counsel for the appellant that as against the said decision the revenue had fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory form was belatedly filed. It is the submission of the learned Counsel appearing for the respondent/assessee that initially a Form 26Q was filed and subsequently an amended form was filed reporting all the details and the Assessing Officer does not dispute the correctness of the details furnished in the said statutory form and therefore, the Tribunal considered all the aspects and affirmed the view taken by the first Appellate Authority. The Tribunal while deciding the case in favour of the assessee had taken note of several decisions. At this juncture it would be beneficial to refer to the decision in the case of Commissioner of Income Tax, Madurai vs. Sri Parameswari Spinning Mills (P.) Ltd. In the said case, an identical question arose for consideration and the Court pointed out that Sub-section (6) of Section 194C is the provision which grants benefit to the assessee and Sub-section (7) of Section 194C is the procedure to be followed. In the said case the assessee contended that Section 194C(6) and (7) are independent of each other and cannot be read together to attract disallowance under Section 48(a)(ia) read with Section 194C of the Act. The above decision was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of such non compliance. Therefore, this procedural law, as prescribed under Sub-Section (7) of Section 194C of the Act cannot take away the benefit, which will accrue to the assessee under Sub-Section (7) of Section 194C of the Act. For the above reasons, we are inclined to remand the matter to the Assessing Officer for a fresh consideration. Further, in the case of Principal Commissioner of Income-tax-1 vs. Asian Mills (P.) Ltd., (2022) 285 Taxman 422 (Gujarat), identical issue was decided in favour of the assessee and taking note of the decision in the case of Commissioner of Income-tax-I vs. Valibhai Khanbhai Mankad [2012] 28 taxmann.com 119 (Gujarat), the issue was answered in favour of the assessee. The operative portion of the decision reads as follows :- 8. The issue is covered by the decision of this Court rendered in the case of Commission of Income-tax-I vs. Valibhai Khanbhai Mankad, [2012] 28 taxman.com 119 (Gujarat), where the issue was again with regard to payment to the contractor and requirement of deduction of TDS. Relevant paragraphs are reproduced as under: 3) We have heard the learned counsel for the Revenue as well as for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin such time as may be prescribed; or (ii) any sum credited or paid before the 1st day of June, 1972; or (iii) any sum credited or paid before the 1st day of June, 1973, in pursuance of a contract between the contractor and a co- operative society or in pursuance of a contract between such contractor and the sub-contractor in relation to any work (including supply of labour for carrying out any work) undertaken by the contractor for the cooperative society. Explanation-For the purpose of clause (i), goods carriage shall have the same meaning as in the Explanation to subsection (7) of section 44AE. 4) Section 40(a)(ia) of the Act, in turn, provides that certain amounts shall not be deducted in computing the income chargeable to tax under the head 'profits and gains of business or profession', namely, payments made towards interest, commission or brokerage etc., on which tax is deductible at source and such tax has not been deducted or, after deduction, the same has not been paid on or before the due date specified in sub-section (1) of section 139 of the Act. Section 40(a)(ia) of the Act, insofar as it is relevant for our purpose, reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry declaration in the prescribed format and further that such sub-contractor does not own more than two goods carriages during the entire previous year. The moment, such requirements are fulfilled, the liability of the assessee to deduct tax on the payments made or to be made to such sub-contractors would cease. In fact he would have no authority to make any such deduction. 8) The later portion of sub-section (3) which follow the further proviso is a requirement which would arise at a much later point of time. Such requirement is that the person responsible for paying such sum to the sub-contractor has to furnish such particulars as prescribed. We may notice that under Rule 29D of the Rules, such declaration has to be made by the end of June of the next accounting year in question. 9) In our view, therefore, once the conditions of further proviso of section 194C(3) are satisfied, the liability of the payee to deduct tax at source would cease. The requirement of such payee 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 sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 of Section 200 referring to Section 31(A)(4)(vi). It is submitted that the deductor at the time of preparing statement of tax, deductor shall furnish particulars of amount paid or credited on which tax was not deducted in view of the compliance of provision of sub-Section 6 of Section 194C by the payee. Section 234(E) was relied to state that if the statement is not filed, a fee of Rs.200/-for every day, during which the failure continues, has to be paid by the assessee. Therefore, it is the submission that the nonfiling of a statement in terms of sub-Section 7 of Section 194C cannot take away the benefit which will accrue to the assessee under sub-Section 6 of Section 194. 8. We fail to understand as to what is the apprehension in the mind of the Revenue when the Tribunal has remanded the matter to the Assessing Officer to consider whether the assessee has filed form no. 26(Q) belatedly and to examine as to whether the fee has to be collected. We find that there is no ground to interfere with the order passed by the Tribunal. 9. Ms.V.Pushpa placed reliance on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Valibhai Khanbhai Mankad reported in [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naturally could be construed as sufficient compliance. No fault can be found with these detailed findings and the settled position of law. The above decision would squarely apply in the case on hand. In the cases of Parameswari Spinning Mills (P.) Ltd. and Dilip Kumar, the matter was remanded to the Assessing Officer since the statutory form was not considered by the Assessing Officer. However, on facts in the instant case we find that the said form was available on the file of the Assessing Officer much before the completion of the assessment and the Assessing Officer has not rendered any finding as to the correctness of the details furnished by the assessee in the said statutory form and in identical circumstances in the case of Asian Mills (P.) Ltd., the case of the assessee was accepted. Thus, we are of the view that the correctness of the details in the statutory form having not been faulted by the Assessing Officer, the first Appellate Authority as well as the Tribunal were right in granting the relief in favour of the assessee. Learned senior counsel appearing for the respondent/assessee pointed that in column 1(e) of Form 26Q the assessee is required to answer t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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