TMI Blog2020 (5) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is only to the extent of TCS on such sales and not on the whole sale amount. The matter is accordingly set-aside to the file of AO to verify the same and determine the quantum of TCS and consequent interest thereon which is payable by the assessee in relation to the impugned transaction. The ground of appeal is thus allowed for statistical purposes. Charging of interest under section 206C(7) - Short / Non Collection of tax at source under section 206C(6) alleging that assessee has committed a clear default of non-collection of TCS - HELD THAT:- Assessee firm shall be liable to pay interest from the date on which such tax was collectible to the date of furnishing of return of income by the respective buyers excluding the period prior to 1.07.2012 in respect of which no interest shall be leviable. The decision of the Coordinate Bench in case of Chandmal Sancheti [ 2016 (8) TMI 952 - ITAT JAIPUR ] the decision of the Hon'ble Karnataka Court in case of Bharat Hotels [ 2015 (12) TMI 1469 - KARNATAKA HIGH COURT ] and Solar Automobiles [ 2011 (9) TMI 637 - KARNATAKA HIGH COURT ] were rendered for the period prior to the amendment brought in by the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961 - HELD THAT:- It can't be denied that the assessee submitted the certificates and declarations in Form 27BA exactly in the same manner but the department did not feel aggrieved in that year. Therefore, now filing the appeal on the same issue when the legal and factual position is admittedly the same and without bringing out any material change in the facts of the legal position, the department cannot be permitted to agitate the same issue in later year. This contention is fully supported by the various decisions of the Hon'ble Supreme Court and particularly in the case of Berger Paints India Ltd. v. CIT [ 2004 (2) TMI 4 - SUPREME COURT ] As observed by the Assessing Officer that he has gone through the documentation so submitted by the assessee firm and on perusal thereof, he noticed that complete information in the Form/certificate have not been given by the accountant/party as required by the legislature and most of the columns are either not filled up as required or simply mentioned as per details/enclosure - accountant has signed the forms with conditional remarks As certified by the buyer whereas the forms should have been filled up and certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measure for compliance of collection of tax at source as a similar measure for compliance of deduction of tax at source is provided under section 201 of the Act. Regarding decision of the Hon'ble Supreme Court in the case of M/s Hindustan Coca Cola (P) Ltd. [ 2007 (8) TMI 12 - SUPREME COURT ] we find that the ratio so laid down therein has been subsequently brought on the statue books by way of proviso to sub-section (6A) to section 206C of the Act. Therefore, where the specific amendment has been brought in by the legislature accepting the ratio so laid down by the Hon'ble Supreme Court, we see no infirmity in the findings of the Id CIT(A) where he has held that the ratio so laid down continues to apply in context of collection of taxes at source. In the result, the ground so taken by the Revenue is hereby dismissed. - IT APPEAL NOS. 422 TO 424, 776 TO 778/JP/2018 - - - Dated:- 15-4-2020 - Sandeep Gosain, Judicial Member And Vikram Singh Yadav, Accountant Member For the Appellant : Mahendra Gargieya, Adv. For the Respondent : K.C. Gupta ORDER VIKRAM SINGH YADAV, ACCOUNTANT MEMBER These are cross appeals filed by the assessee and the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 37C in as much as the entire subjected sales was made to the ultimate consumers for use in manufacturing, processing or producing and hence the provision of s. 206C was not applicable. ITA No. 778/JP/18 ( Revenue's appeal ) : 1. Whether on the facts and in the circumstances of the case, the ld. CIT(A) is justified in allowing relief on the basis of additional evidence without calling for remand report under Rule 46A and enquiry under Sec 250(4) of the Income Tax Act, 1961. 2. Whether on the facts and in the circumstances of the case, the ld. CIT(A) is justified in deleting the demand without appreciating the fact that the assessee deductor has failed to make payment of interest under section 206C(7) and not mentioning details of challans in the prescribed Form 27BA before submission with claim of relief in view proviso to section 206C read with Notification No. 12/2016 dated 8-1-.2016. 3. Whether on the facts and in the law, the ld. CIT(A) is justified in setting aside the issue to the AO for verification and directed to allow relief on verification under section 250(1) as per the ratio of judgment in the case of M/s Hindustan Coca Cola (P) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of trading in Tendu Leaves. 5. The assessee firm, in response to the show-cause notice, submitted that action on the part of the Assessing officer is pre-mature and without valid jurisdiction as the Assessing Officer, before invoking the provisions of section 206C(6) 206C(7) has to satisfy himself that the concerned buyers to whom subjected sales has been made have already considered the subjected sales and paid tax thereon or not and without having fulfilled this condition or without having made such enquiries, the proceedings under section 206C(7) and 206C(7) of the Act cannot be initiated and in support, reliance was placed on the decision of the Hon'ble Karnataka High Court in case of Shree Manjunatha Wines v. CIT [2011] 202 Taxman 620 (Kar). 6. Further, during the assessment proceedings, the Assessing officer asked the assessee firm to reconcile the figures of turnover along with supporting documentary evidence and asked it to furnish Form No. 27BA/ITR, if any, of all the parties. In response, the assessee firm vide its submission dated 13-2-2017 submitted certificate/Form No. 27BA from the parties/accountant as prescribed in first proviso to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(A) and the submissions made before the Assessing Officer were reiterated. It was further submitted interalia as under:- 3. Directly covered by the decision of CIT(A) in A. Y 2008-09: Before proceeding further, at the outset it is submitted that all the contentions raised now were also raised in A. Y. 2008-09 wherefrom this controversy arose from the first time and your Id. Predecessor had accepted the contentions and granted substantial relief in appeal no. 46/2015-16 vide her order dated 29 - 2 - 2016 (refer PB 102-131 in A.Y. 2010-11). The facts and circumstances being exactly identical in this year also, the same decision has to be applied. More particularly when, the department not having gone in further appeal, the said order had become final. 4. Under this background, the assessee specifically agitated before the ITO, the invoking of section 206C of the Act vide its letter dated 25 - 1 - 2017 stating that out of 26 parties, the maximum number of buyers are already (1) assessed to tax, ( ii ) have already furnished their return of income under section 139(1) of the Act ( iii ) they have already taken into account the cost of the purchases of tendu leaves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation in the forms /certificates have not been given by the Accountant/ Party, as required by the legislature and most of the columns are either not filed up as required or simply mentioned as per details/enclosure It is a vague allegation and without giving specific details of the particular form / certificates lacking details. The ITO has not pointed out specifically which column, details were not filled in. There may be some BSR code w. r. t the payment of tax made by the buyer (tax payee) and other some minor details but the Id. ITO has conveniently ignored the categorical certification given by the buyer payee reading as under: 1. That we have furnished our Return of Income under section 139(1) of the Act for the above year. 2. That we have taken into account the cost of purchase of Tendu Leaves including CST of Rs from M/s Eid Mohammed Nizam uddin Tonk (Raj.) for computing the income in the above return. 3. That we have paid Income Tax due on the income declared by us in the return. A bare perusal of the said certificate make it clear that the assessee has fully complied with and established requirement of law in substance. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r addition which is totally contrary to the provision of law, the only remedy left with the poor assessee is to file an appeal, but the assessee could not have stopped the ITO from doing his job whether right or wrong. Similarly, so far as the assessee is concerned, he discharged his duty by pressing a certificate of an expert and unless contrary evidence is brought on record by the ITO as regards proving the incorrectness of the fact certified by the expert, the ITO was bound to have accepted the certificate of the expert. As stated, ITO chose not to make any inquiry to prove the incorrectness in the certificate of the expert. Hence he is not entitled to make an allegation of this type, which is prayed to be ignored altogether. There is nothing to show that the Accountant himself has not filed up and certified such certificates. In absence of any contrary evidence such certificate could not have been doubted. 3. The accountant has also ignored the vital facts that some of the parties have not filed return on or before due dates prescribed under section 139 of the IT, Act, 1961. It is absolutely incorrect allegation tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO instead of admitting these certificates which are binding upon him being filed as required by the law and finding that there was no escape from accepting what the assessee has said and granting relief is trying to run away on one pretense or the other, which was not fair on his part. Thus, there is absolutely no substance in the allegations of the observations of the ITO (TDS-3 and deserves to be ignored. He completely failed to disprove the various facts, figures evidences brought on record proving the compliance of the law to get the benefit. 6.1 It is further pertinent to note that the certificates and declaration are being filed in similar method and manner/ similar type right since beginning however, no such objection was raised in the past. In F. Y. 2007-08, when additional evidences filed, the Id. ITO in the remand report did not raise any such objection and matter stood accepted by the Id. CIT(A) also in appeal no. 46/JPR/ 15-16 dated 29 - 2 - 2016 (A. Y. 2013-14)]. Similarly in F.Y. 2008-09 also, the concerned ITO (TDS) also accepted the certificate of chartered accountant which were prepared in the similar manner. Kindly refer order dated in appeal no. 46/2015-16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. It is under this background the assessee had to make request seeking time but in any case finally, as the ITO has also agreed atpg-7, that a letter dated 25 - 1 - 2017. (PB-130) was filed on 13.02.2017aiong with the various certificates / Form 27BA as prescribed in first proviso of section 206C(6A). Hence such a discussion was irrelevant and in any case was without judiciously appreciating the facts. Lastly, all such certificates were certified in same manner and method as was done in the F. Y 2007-08 (A. Y 2008-09) which has already decided by the Id. Predecessor as submitted in para-3. Therefore, there is no substance in these allegations and hence have to be ignored altogether. 8. The Impugned order was passed without having jurisdiction: It is submitted that the jurisdiction over the assessee under TAN as per section 124(1) rested with the ITO TDS, Kota with whom the TDS returned were being regularly filed by the assessee. This fact is evident from the e-filling website of the income tax department which also shows the ITO(TDS), Kota having territorial jurisdiction over Tonk, District wherein the assessee situated. But surprisingly, the impugned orders for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 206C(6), in the case of TDS, such demand is created under section 201(1) and is recovered in both the cases from the person responsible unless he satisfies the conditions of exemptions provided there under. Similarly the interest for the delayed collection and deposit of TDS/TCS has also been provided under section 201(1 A) 206C(7) of the act respectively. Both the provisions lose the rigor and allow exemption from the collection and deposit of TDS/TCS in as much as the first Proviso to section 206C(6A) provides that by filing the declarations and the certification in the prescribed form 27BA. Similarly, first Proviso to section 201(1) provides such immunity on filing of declarations and certification in prescribed form. Further the use of the word 'shall' under section 206C(6) in contrast of section 201(1) does not make much difference in as much as the responsibility of making TDS/TCS is mandatory under both the provisions. Also further differentiation sought by the AO that in case of TDS, the subjected amount becomes the receipt in the hands of the recipient whereas in the case of the TCS, the subject amount of sale become the expenditure in the hands of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Anand Tobacco Products Mangalore (Karnataka) AAFFA4744G 967200 ROI filed enclosed 5 M/s. Prakash Bidies Limited Mangalore (Karnataka) AABCP9885E 9503876 ROI filed enclosed 6 M/s. P J Tobacco Products Company Gopal Nagar Distt. Murs AACFP2000R 3571350 ROI filed enclosed 7 M/s. SJ SP Family Trust Jagtial Distt. Karim nagar (A.P.) AAATS5877R 44164013 ROI filed enclosed 8 M/s. JP Tobacco Products Pvt. Ltd. Damoh (M.P.) AAACJ7141G 11591849 ROI filed enclosed 9 Parbhudas Kishordas Tobacco Products PVT. Ltd. Nizamabad AABCP1495Q 10233471 ROI filed enclosed 10 Parbhudas Kishordas Tobacco Products PVT. Ltd. Damoh (MP,) AABCP1495Q 32213394 ROI filed enclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4276C 162142 A chart showing ROI filling details copy of website 23 M/s. Shankara Traders Amroha (U.P.) AGDPA5730H 622890 A chart showing ROI filling details 24 M/s Afrin Traders Beedi Merchants Sira (Karnataka) ALIPM9963H 1078688 A chart showing ROI filling details 25 J.G. Sons Kourtia ACGPL9235D 346080 A chart showing ROI filling details Total B ₹ 1,34,89,762/- C Cases where Certificate/Return of Income not filed 26. Ramesh S/o Nathu MP 1,77,360 Certificate available but return not filed Total C ₹ 1,77,360/- GRAND TOTAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the ITO TDS-3, Jaipur without having valid jurisdiction. 10. It was submitted that the said ground was also taken before the ld CIT(A), However, it appears that this ground has escaped his attention and remain to be decided and therefore, this issue may be restored to the file of ld CIT(A) to be decided after providing opportunity to the assessee. Further, the Id AR reiterated the submissions made before the Id. CIT(A) which read as under: The Impugned order was passed without having jurisdiction: It is submitted that the jurisdiction over the assessee under TAN as per section 124(1) rested with the ITO TDS, Kota with whom the TDS returned were being regularly filed by the assessee. This fact is evident from the e-filling website of the income tax department which also shows the ITO(TDS), Kota having territorial jurisdiction over Tonk, District wherein the assessee situated. But surprisingly, the impugned orders for the AY 2009-10 to AY 2015-16 were passed by the present ITO TDS-3, Jaipur on 22.12.2016 and 06.03.2017 is lacking jurisdiction and hence void ab initio and liable to be quashed. Kindly refer State of Gujarat v. Rajesh Kumar Chian Lal AIR 1996 P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, the same was not pressed by the ld AR on behalf of the assessee, hence, the same is dismissed as not pressed. 14. In ground no. 3.1, the assessee has challenged the confirmation of demand towards TCS amounting to ₹ 1,77,360/-. 15. In this regard, the ld AR submitted that the total amount of sale of Tendu leaves worth ₹ 27,19,31,589/- consisted of different categories (A, B C) of buyers (categorized based on documentation on record) which have been examined by the CIT(A) as stated at pg 14 to 16 of his order and accordingly, feeling satisfied with the contentions of the assessee and submissions/documentation in support thereof, held that the assessee was not in default to the extent of the sales totaling to ₹ 25,82,64,467/- and ₹ 1,34,89,762/- (as per list A B). However, with regard to the third type of categories (list C) for the cases listed from S.No. 26, showing sales of ₹ 1,77,360/-, the ld. CIT(A) held that the benefit of the decision of the Hon'ble Supreme Court in case of Hindustan Coca Cola could not be applied in this case and held as under: Further in case of party at serial no. 26 the assessee neither filed any dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses. 19. In ground no. 3.2, the assessee has challenged the findings of the ld CIT(A) relating to charging of interest under section 206C(7) of the Act. 20. During the course of hearing, the ld AR submitted that the Assessing officer had charged interest under section 206C(7) of the IT Act, 1961 on the entire amount of Short / Non Collection of tax at source under section 206C(6) alleging that assessee has committed a clear default of non-collection of TCS w.r.t. sale amount of ₹ 25,58,31,594/- (correct Sale amount is ₹ 27,19,31,589/-) and in the first appeal, the ld. CIT(A) has directed the AO as under: So far as the charging of interest under section 206C(7) is concerned, the AO is directed to calculate the interest for period of starting from the due date of deposit of TCS after collection to the date of filing of the return by respective parties. Accordingly, this ground is partly allowed. 21. In this regard, it was submitted by the ld AR that no interest is leviable and permissible to be charged in a case where buyers have already paid advance taxes and having refund. It was submitted that there may be situations where the amount of prepaid ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay simple interest at the rate of one per cent per month or part thereof on the amount of such tax from the date on which such tax was collectible to the date on which the tax was actually paid and such interest shall be paid before furnishing the quarterly statement for each quarter in accordance with the provisions of subsection (3): Provided that in case any person responsible for collecting tax in accordance with the provisions of this section, fails to collect the whole or any part of the tax on the amount received from a buyer or licensee or lessee or on the amount debited to the account of the buyer or licensee or lessee but is not deemed to be an assessee in default under the first proviso of sub-section (6A), the interest shall be payable from the date on which such tax was collectible to the date of furnishing of return of income by such buyer or licensee or lessee. 25. A bare reading of the aforesaid provisions provides that where the person responsible for collecting tax does not collect the tax or after collecting the tax fails to pay it, he shall be liable to pay simple interest at the prescribed rate from the date on which such tax was collectible to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO is directed to allow the benefit of ₹ 1,34,89,762/-as per the ratio laid down by Hon'ble Apex Court in Hindustan Coca Cola ( supra ) only after making verification of the return of income filed by the respective parties case the appellant failed to do so, the liability of TCS is on the appellant. Further in case of party at serial no. 26 the assessee neither filed any declaration certificate nor any return of Income. Therefore, the assessee cannot be allowed the benefit of the decision Hindustan Coca Cola ( supra ) in these cases. The demand of TCS and the interest thereon, raised by the ITO to the extent of₹ 1,77,360/- is upheld being justified. So far as the charging of interest under section 206C(7) is concerned, the AO is directed to calculate the interest for period of starting from the due date of deposit of TCS after collection to the date of filing of the return by respective parties. Accordingly this ground is partly allowed. 28. We therefore find that the assessee firm has been allowed the benefit to the extent of sales of ₹ 25,82,64,467/- in respect of cases listed at 1 to 16 where the buyers have filed their respective return o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, distinguishable and doesn't support the case of the assessee firm. Therefore, the findings of the ld CIT(A) which are in consonance with the proviso to section 206C(7) are hereby confirmed subject to the modification that no interest shall be leviable for the period prior to 1.07.2012 and to that extent, the assessee shall be eligible for relief. The ground of appeal is thus partly allowed. 29. In Ground no. 4, the assessee firm has challenged the action of ld CIT(A) in not considering that the case fall under under section 206C(1A) r/w Rule 37C in as much as the entire subjected sales of Tendu leaves was made to the ultimate consumers for use in manufacturing, processing or producing of Beedies and hence the provision of section 206C was not applicable and have been wrongly invoked by the AO. 30. In this regard, it was submitted that the provision contained under section 206C (1A), in a mandatory term, provides that the assessee seller will be under no obligation to collect tax at source overriding the provisions of section 206C(1). Though the substantive provision of law nowhere provides any time limit up to which the seller should have collected the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if a plea taken before the appellate court or the declarations are filed, the Courts may admit the same in the larger interest of justice. 34. It was submitted that under similar circumstances, the Tribunal in the case of Chandmal Sancheti v. ITO , TDS-2, Jaipur [2016] 181 TTJ 0906 have remitted the matter back to the ITO to consider the declaration filed in Form 27C belatedly by the assessee. Reliance was also placed on the Tribunal decision in case of Karnataka Forest Development Corporation Ltd. v. ITO , TDS [2015] ITL 1007 (Bang.) (Trib.) wherein the Tribunal has remanded the matter back to the AO for proper verification and thereafter re-adjudication of the issues involved in accordance with law. Further, reliance was placed on the Hon'ble Gujarat High Court decision in case of CIT ( TDS ) v. Siyaram Metal Udyog ( P. ) Ltd. 2016 ITL 4028 (Guj.) and Hon'ble Madras High Court decision in case of CIT v. Adisankara Spinning Mills ( P. ) Ltd. 226 Taxman 44 (Mad.) 35. It was further submitted that in the instant case, although a ground was taken before the ld. CIT (A) however declarations could not be filed for the genuine difficulties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paras 6 to 9) 36. Further, reliance was placed on the Tribunal decision in case of Rajmoti Industries v. ITO [1995] 52 ITD 0286 (Ahd) wherein it was held as under: The Tribunal, under the scheme of the IT Act, 1961, is a final fact finding authority and in order to enable it to decide disputes brought before it by way of second appeal in a lawful, fair and judicious manner it has necessarily to look into and consider such evidence and other material having a nexus and bearing on the subject-matter of the appeal viz., the dispute involved. Even according to the provisions of rule 29 of the ITAT Rules, the Tribunal is empowered to receive and admit additional evidence for any other substantial cause. It is amply settled and clear that this Tribunal can admit additional evidence in terms of rule 29 if the receipt or admission of additional evidence is vital and essential for the purpose of consideration of the subject-matter of the appeal and arrive at a final and ultimate decision. The Tribunal, therefore, has also power to admit additional evidence in the interest of justice or if there exists substantial cause. The assessee having lost in first appeal and in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition and submission of the assessee right from the beginning when the statement of the partner of the assessee's firm was recorded during the TDS survey on 23.03.2015 and reproduced in the assessment orders passed under section 206C(6)/(7) for all these years that sale of Tendu leaves have been made to the manufacturers of Beedies and although no declaration u/r 37C in form 27C was received from such buyers, however, the assessee had written/ requested to the concerned buyers to send the declaration/certificates and the office of the ITO was also been duly informed on this subject along with the address of such buyers. It was accordingly submitted that the provisions of section 206C (1A) are clearly attracted, declarations in Form 27C may be admitted as prayed in application filed under Rule 29 and the assessee firm may be granted the necessary relief and the matter may be remanded to the file of the AO for necessary verification. 40. The ld DR is heard who has submitted that the provisions of section 206C(1A) can be invoked only in a scenario where the declarations from the buyers have been submitted in the prescribed form and verified in the prescribed manner to the eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee on the other hand had contended that he was not a trader of scrap and therefore, the provisions of section 206C did not apply at all. The Assessing Officer turned down his contention and proceed to make the additions. Eventually, when the issue reached the Tribunal, the Tribunal relying on earlier decision in case of Bharti Metals held that the items in question were scrap. However, in view of the fact that the assessee had admittedly filed a declaration in form 27-C collected from the buyers and given that there was no dispute about the genuineness of the contents thereof ruled in favour of the assessee. In that factual background, the Hon'ble High Court has held as under: 6. Section 206C of the Act pertains to profits and gains from the business of trading in alcoholic liquor, forest produce, scrap etc. Sub-section 1 of section 206C provides that every person being a seller shall at the time of debiting of the amount payable by the buyer collect from the buyer of any of the goods specified in column (2) of the table, a sum equal to the percentage specified in the corresponding entry of the table as income tax. Clause (aa) of the explanation to section 206C, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation would not defeat the very claim. The Tribunal therefore, viewed such delay liberally and in essence held that there was substantial compliance with the requirement of filing the declaration. 43. Sub-sequently, the Hon'ble Gujarat High Court had an occasion to examine the aforesaid provisions again in case of Commissioner of Income-tax ( TDS ) v. Chhaganbhai K Sanghani [2018] 94 taxmann.com 459 (Guj). In that case, the respondent-assessee was a dealer in scrap. During the period relevant to the assessment year 2011-12, he had sold scrap of ₹ 12.72 Crores on which he was required to collect tax at source in terms of section 206C(1) of the Income-tax Act, 1961 unless the buyers had provided him necessary certificates referred to in sub-section (1A) thereof. Before Assessing Officer, the assessee produced no such certificates. The Assessing Officer therefore, in terms of sub-section (7) of section 206C, levied tax and interest. In appeal before the Commissioner, assessee produced necessary certificates issued by the buyers. The Commissioner, however, ignored such certificates and confirmed the order of Assessing Officer, upon which, assessee approached the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the legislative intent was not to make this time limit mandatory or a pre-condition for availing the benefit of not deducting tax at the time of sale of goods aimed for specified purpose. This Court in case of CIT [TDS] v. Siyaram Metal Udyog (P.) Ltd. [2016] 71 taxmann.com 204/240 Taxman 578 [Gujarat] had dealt with somewhat similar situation, wherein following observations have been made.. 44. The legal position which is thus laid down by the Courts as per the aforesaid decisions is that sub-section (1) of section 206C is a substantive provision for collection of tax at source and depositing of the same with the Revenue. Sub-section (1A) is again a substantive provision which refers to a situation under which collection under sub-section (1) would not have to be made at first place. The requirements of sub-section (1A) are that the buyers should provide to the seller, a declaration in prescribed form, verified in the prescribed manner. The main thrust of sub-section (1A) of section 206C is thus to make a declaration as prescribed, upon which, the liability to collect tax at source under sub-section (1) would not apply. Sub-section (1A) of section 206C does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts Pvt. Ltd., Nizamabad (A.P.) ₹ 1,02,33,471/- 7-8 5. Prabhudas Kishoredas Tobacco Products Pvt. Ltd., Damoh (M.P.) ₹ 3,22,13,394/- 9-10 6. Star Traders, tanda (U.P.) ₹ 15,62,616/- 11 7. Mangalore Ganesh Beedi Works, Mysore(Kar) ₹ 6,84,21,238/- 12-13 On a prima facie perusal of these certificates, we find that all these parties are involved in manufacturing of Beedies and uses Tendu leaves for manufacturing such Beedies. The sales amount mentioned in these certificates matches with the sales amount as reflected and examined by the ld CIT(A) as apparent from findings in his order (para 5.3, page 14-15): S. No. Name of Buyer PAN Amount in F.Y. 2012-13 A Cases where Declaration Certificate in form 27BA and Return of Income filed. 1 M/s. Mangalore Ganesh Beedi Works Mysor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ataka) ADSPB5725E 920315 ROI filed enclosed 16 M/s. Star Traders Tanda (Up) ACCPS9843D 1562616 ROI filed enclosed Total (A) ₹ 25,82,64,467/- These are therefore existing income tax assessees who have filed their respective return of income and have also filed their declaration in Form 27BA. The assessee has also submitted that similar declarations in Form 27C have been obtained from the same parties for the financial years 2015-16, 2017-18 and 2018-19 and submitted before the ld CIT(TDS) and which have been accepted and no demand has been raised by the Revenue. Therefore, in the instant case, we find that where similar declarations have been obtained from the same set of buyers, who are engaged in manufacturing of Beedies from the Tendu leaves so sold by the assessee, in the prescribed format and co-relation between the goods sold and reflected in such certificates having been established, the genuineness of such certificates prima facie doesn't seems to be in dispute. In our view, these cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aching out to these buyers so that necessary declarations can be obtained and furnished before the ld CIT(TDS). However, the assessee again faced resistance from such buyers as they have already made the payment and doesn't want to be bothered with additional paperwork especially where no other supplier was asking for such declaration. However, with great efforts and persistence, these buyers have agreed to file their respective declarations and which have not being filed before us. We therefore find that the assessee has all along acted diligently and taken action basis the advice and assistance sought from its legal Counsel. It was initially advised not to collect TCS as taxes were already paid while procuring the Tendu leaves from the forest department and secondly, the buyers would be filing their return of income wherein they will be paying taxes and hence, there was no action required at its end. However, due to subsequent developments wherein the matter was taken up by the Revenue for the first time in the month of March 2015 and it came to know that such declarations are required to be obtained and filed with the Revenue authorities to absolve it from its TCS obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 206C, in our view, do not provide the consequences of the delayed filing of the declaration. Though, it provides that it is to be filed on or before the 7th day of the next following month in which declaration is furnished to him. Therefore, though there is delay in issuing the declaration by the buyer, the assessee cannot be penalized or deprived from the benefit of the declaration given by the buyer. The only duty cast upon the seller to submit declaration in the following month in which the declaration received. No time limit has been provided by the statute on the buyer to submit the declaration in Form 27. In view thereof, the ground is required to be allowed. In the light of above, we deem it appropriate to remand the matter back to the file of the Assessing Officer with direction to verify whether the declaration has been filed by the assessee in the requisite form and what will the effect of filing of this declaration on the calculation of the TCS under section 206 of the Act. It is, however, again clarified that the delay in filing the declaration shall not be a ground to the Assessing Officer to deny the benefit of the declaration to the assessee. In view ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, Once the conditions of section 194C (3) were satisfied, the liability of the payer to deduct tax at source would cease. The requirement of such payer 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 source applicable. Our view also finds support from the decision of Mumbai Bench of the Tribunal in the case of Karwat Steel Traders v. ITO (2013) 37 taxmann.com 190(Mum.) wherein it was held that, Where declaration in Form 15G/15H were received by the person responsible to deduct tax, there was no liability on him to deduct TDS. Since separate provisions were prescribed on default for non-filing or delayed filing of Form 15G/15H to Commissioner, non-filing of such form would not invoke disallowance under section 40( a )(ia) of the Act. We also find support from the decision of the Mumbai Bench of the Tribunal in the case of Vipin P. Mehta v. ITO [2011] 46 SOT 71 (Mum.) wherein it was held that, sub-section (1A) of section 197A of the Act merely requires the declaration to be filed by payee of interest and once it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-09 also (as admitted by the ITO in Facts of the case), the assessee was held liable to TCS but the ld. CIT(A) classified the sale transactions of tendu patta/leaves in three categories and prepared three tables namely A,B C and accordingly, complete relief with respect to the sale made under table A and B was granted and in few cases, the further relief was granted subject to verification by the AO. There also, in third category i.e. table C, the demand of TCS and interest thereon was confirmed vide her order dated 29-2-2016 in appeal no. 46/JPR/15-16. The Revenue however did not challenge the said order in further appeal and therefore, the finding of the CIT(A) has become final. It can't be denied that the assessee submitted the certificates and declarations in Form 27BA exactly in the same manner but the department did not feel aggrieved in that year. Therefore, now filing the appeal on the same issue when the legal and factual position is admittedly the same and without bringing out any material change in the facts of the legal position, the department cannot be permitted to agitate the same issue in later year. This contention is fully supported by the various decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the documentation so submitted by the assessee firm and on perusal thereof, he noticed that complete information in the Form/certificate have not been given by the accountant/party as required by the legislature and most of the columns are either not filled up as required or simply mentioned as per details/enclosure. Moreover the accountant has signed the forms with conditional remarks As certified by the buyer whereas the forms should have been filled up and certified by the accountant itself on the basis of records. Further, some of the parties have not filed return on or before due dates prescribed under section 139 of the I.T. Act, 1961. Further, on appeal, we find that these certificates in Form 27BA from the Chartered accountant and related declarations from the buyers have again been considered and examined by the ld CIT(A) and the observations of the AO regarding these certificates were not found tenable by the ld CIT(A) and basis his independent review and examination, the relief has been provided to the assessee firm as per his findings in para 5.3 of his order which we have reproduced supra. The Revenue has not pointed out what further evidence by way of additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required to establish that the payees (buyers) have already taken into account the subjected transactions while computing the total income and have already paid the tax due on the incomes so declared. It is not disputed that the substantive compliance to this effect was already made by the assessee. Therefore, the assessee cannot be burdened with detailed minute technical requirement while filling Form 27BA and the ITO could not have found fault on this aspect. Though, notably in this case there is no such alleged deficiency either in the declaration or in the CA certificate. 58. We have heard the rival contentions and pursued the material available on record. The limited issue under consideration is whether at the time of submitting the certificates in Form 27BA as required under proviso to section 206C(6A), the assessee is required to deposit interest and give details of such interest deposit in such certificates. Firstly, on reading of provisions of proviso to section 206C(6A), we find that there is no requirement as such which has been specified in the statue. All it requires is that the accountant should certify as to whether the buyer has furnished his return of inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 206C/250. Hence, this ground of appeal deserves to be dismissed. 62. We have heard the rival contentions and pursued the material available on record. The relevant findings of the ld CIT(A) which are under dispute reads as under: ' Accordingly the AO is directed to allow the benefit of ₹ 1 , 34 , 89 , 762/- as per the ratio laid down by Hon'ble Apex Court in Hindustan Coca Cola ( supra ) only after making verification of the return of income filed by the respective parties case the appellant failed to do so, the liability of TCS is on the appellant. 63. On perusal of the aforesaid findings, we find that the ld CIT(A) has clearly held and directed the AO to allow the benefit to the assessee in light of Hon'ble Supreme Court decision in case of Hindustan Coca Cola which he has discussed at length in the earlier part of the order and held that ratio of the said decision clearly applies in the instant case as there is no substantive difference in provisions relating to TDS and TCS. However, such direction was subject to verification by the AO as to the filing of the return of income by the respective buyers and where it was found by the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 206C are analogous and a measure for compliance of collection of tax at source as a similar measure for compliance of deduction of tax at source is provided under section 201 of the Act. Regarding decision of the Hon'ble Supreme Court in the case of M/s Hindustan Coca Cola (P) Ltd., we find that the ratio so laid down therein has been subsequently brought on the statue books by way of proviso to sub-section (6A) to section 206C of the Act. Therefore, where the specific amendment has been brought in by the legislature accepting the ratio so laid down by the Hon'ble Supreme Court, we see no infirmity in the findings of the Id CIT(A) where he has held that the ratio so laid down continues to apply in context of collection of taxes at source. In the result, the ground so taken by the Revenue is hereby dismissed. 68. In the result, the appeal of the Revenue is dismissed. 69. Now, coming to cross appeals in ITA No. 423/JP/2018 776/JP/2018 for A.Y 2014-15 and ITA No. 424/JP/2018 777/JP/2018 for A.Y 2014-15, both the parties fairly submitted that the facts and circumstances of the case are exactly identical as in ITA No. 422/JP/2018 and 778/JP/2018 for A.Y 2013-14 ..... 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