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TMI Blog2009 (5) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... ion at source, which was not verified nor the deducted amount paid in the account of the State Government? Heard learned counsel for the parties at length. Brief facts, giving rise to these revisions, are that the assessee/respondent-M/s. J.K. Ghai, Moti Bazar, Dehradun, is a works contractor, who had done works in the assessment years 1999-2000, 2000-01 and 2001-02, in State of Uttarakhand, and contractee was Airport Authority of India. Under section 8D of the U.P. Trade Tax Act, 1948 (applicable to State of Uttarakhand), a contractee, i.e., a person responsible for making payment to a dealer (assessee) is required to deduct amount equal to four per cent in full satisfaction of tax payable under the Act on account of such works contract. It appears that in respect of the tax deduction at source (for short hereinafter referred as "T.D.S."), certain certificates were issued for the assessment year 1999-2000 by the contractee, and the same were submitted by the contractor to the assessing officer (for short hereinafter referred as "the A.O."). The payment by contractee to the tune of Rs. 47,193 (out of Rs. 85,081) for that assessment year, could not be verified, as the contractee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 (applicable to State of Uttarakhand), provides that any person aggrieved by an order passed under section 9 other than the orders referred in said sub-section may within a period of ninety days from the date of service of copy of order/decision, prefer an appeal to the Tribunal. An Explanation has been added to sub-section (2) of section 10 of the Act, whereby it is clarified that for the purposes of the sub-section, expression "any person" in relation to any order passed by an authority other than the Commissioner includes the Commissioner and, in relation to any order passed by the Commissioner includes State Government. The learned counsel for the respondent drew attention of this court to clause (b) of section 2 of the Act and pointed out that the word "Commissioner" means Commissioner of Trade Tax appointed by the State Government, and includes Additional Commissioners or Joint Commissioners of Trade Tax appointed by the State Government. On the basis of it, it is argued that the Commissioner had no authority to file the appeal, and only the State Government could have filed the second appeal before the Tribunal against the order of the Joint Commissioner. Having gone throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rified amounts mentioned in T.D.S.) Admittedly, the respondent/assessee (dealer) is a contractor who had undertaken construction activities in the relevant assessment years, i.e., 1999-2000, 2000-01 and 2001-02. The contractee, in respect of the works contracts in question, is Airport Authority of India. It is not disputed that under section 8D of the U.P. Trade Tax Act, 1948, the contractee was required to deduct the tax at source in respect of amount payable to works contractor (dealer). The learned counsel for the appellant argued that the first appellate authority and the Tribunal have erred in law in holding that the assessee is not liable to pay the tax in respect of unverified amounts of T.D.S. certificates, issued by the contractee, which were not deposited in the Government treasury. On the other hand learned counsel for the respondent argued that once the T.D.S. certificates were issued by the contractee, the dealer has no liability to pay the tax. It is further contended that whether the amount deducted is verified or not, or whether the amount mentioned in T.D.S. deposited in Government Treasury by the contractee or not, it cannot be directed to be recovered from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credited into the Government treasury shall be treated as a payment of tax on behalf of a person from whose bills or invoices the deductions were made. Where the amount was neither deducted nor deposited in any of the account of the State Government, merely for the reason that T.D.S. certificate is issued, it cannot be said that the payment of tax has been made on behalf of the assessee (dealer). If we hold otherwise, it would encourage issuance of false T.D.S. certificates by the contractees. On behalf of the respondent/assessee it is contended that the State of Uttarakhand/revenue should have initiated proceedings under sub-section (6) and sub-section (7) of section 8D of the Act against the contractee, if he failed to deduct or to deposit the deducted amount with the Government treasury. We have gone through the said provision of law carefully and we find that, if the amount is deducted by the contractee but not deposited in Government treasury, the tax authorities can and should have resorted to remedy provided under sub-sections (6) and (7) of section 8D of the Act. Sub-section (9) of section 8D provides that payment by way of deduction in accordance with sub-section (1) or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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