Taxap/270/2005 Of Income-Tax Officer v. Surat Municipal Corporation

O/TAXAP/269/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 269 of 2005With TAX APPEAL NO. 270 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERISd/-andHONOURABLE MR.JUSTICE K.J.THAKERSd/-======================================1 Whether Reporters of Local Papers may be allowed to see Nothe judgment ?2 To be referred to the Reporter or not ?No3 Whether their Lordships wish to see the fair copy of the Nojudgment ?4 Whether this case involves a substantial question of law as Noto the interpretation of the Constitution of India, 1950 or any order made thereunder ?5 Whether it is to be circulated to the civil judge ?No======================================INCOME-TAX OFFICER....Appellant(s)VersusSURAT MUNICIPAL CORPORATION....Opponent(s)======================================Appearance:MR SUDHIR M MEHTA, ADVOCATE for the Appellant(s) No. 1MR MANISH J SHAH, ADVOCATE for the Opponent(s) No. 1====================================== CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 03/11/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER) 1.Being aggrieved by common order dated 26[th] April 2004 passed by the Income Tax Appellate Tribunal, Ahmedabad, in ITA No.491/Ahd/2003 and 493/Ahd/2003, the appellant has preferred present appeals. 2.The short facts of the case are that during verification of accounts on 31.7.2001, regarding tax deducted at source by the respondent Municipal Corporation, it was found by the appellant that the respondent had created a liability of Rs.75,79,543/- and Rs.60,34,008/- towards interest payable for the Financial Year 1998-99 and 1999-2000 and Assessment Year 1999-2000 and 2000-2001. It is also the case of the appellant that the respondent was required to deduct the tax at source from the interest amount and deposit the same in the government account under Section 194A of the Income Tax Act but the same was not done. Therefore, a notice came to be issued on 13.7.2001, to which reply was given on 7.11.2001. It was found by the appellant that the respondent subsequently deducted tax when the payments were made and, therefore, the respondent was liable for payment of interest on unpaid tax deducted at source under Section 201 (1A) of the Act and accordingly charged interest of Rs.1,58,164 by order dated 22.3.2002. 3.Feeling aggrieved the respondent preferred an appeal against the same before the Commissioner of Income Tax (Appeals-V), Surat, which was dismissed on 22.11.2002. Against said order, the respondent preferred an appeal before the Income Tax Appellate Tribunal, Ahmedabad, which came to be allowed by the impugned order dated 26.4.2004. 4.The question before us in this appeal is as under: “Whether on the facts and in the circumstances of the case, and in law, the Income Tax Appellate Tribunal was right in deleting interest imposed by the Income Tax Officer, TDS-3, Surat on the respondent Corporation under Section 201 (1A) of the Income Tax Act, 1961?” 5.From the impugned order, it is clear that while disposing of the matter, the Tribunal heavily relied on the decision in the case of M/s.Gujarat Industrial Power Corporation Limited. It is also clear that said decision was carried in appeal before this Court by filing Tax Appeal No.269 of 2004, which was summarily dismissed on 21[st] March 2005. Therefore, the decision in the case of M/s.Gujarat Industrial Power Corporation Limited has attained finality. While deciding Tax Appeal No.269 of 2004, this Court has observed as under: 5.From the impugned order, it is clear that while disposing of the matter, the Tribunal heavily relied on the decision in the case of M/s.Gujarat Industrial Power Corporation Limited. It is also clear that said decision was carried in appeal before this Court by filing Tax Appeal No.269 of 2004, which was summarily dismissed on 21[st] March 2005. Therefore, the decision in the case of M/s.Gujarat Industrial Power Corporation Limited has attained finality. While deciding Tax Appeal No.269 of 2004, this Court has observed as under: “Heard Mr.B.T.Rao, learned Standing Counsel appearing for the appellant-Revenue. It is apparent from the impugned order of the Tribunal dated 18[th] August, 2003 whereby the Tribunal has confirmed the order of Commissioner (Appeals), that there is a concurrent finding recorded by both the authorities on the facts that no income had accrued and hence, there was no question of deducting tax at source during the year under consideration. It is further found from the facts and evidence on record that as per terms of the debenture when the interest actually became due the assessee had deducted tax at source and paid the same to the exchequer. In the circumstances, no question of law, much less a substantial question of law, can be said to arise out of the impugned order of the Tribunal. The appeal is, accordingly, dismissed.” 6.In view of the above decision of this Court in Tax Appeal No.269 of 2004, where the question of law was identical and facts were similar and also considering the fact that there are concurrent findings of fact, we are not persuaded to take a different view in the matter. Hence, the question raised before us is answered against the revenue and in favour of the assessee. O/TAXAP/269/2005 JUDGMENT 7.These appeals sans merit and are dismissed accordingly. Sd/-(K.S.JHAVERI, J.) *malek Sd/-(K.J.THAKER, J)