TMI Blog2016 (1) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... r appellate findings remitting the issue back to the Assessing Officer for adjudication afresh as per law. The Revenue’s corresponding ground accordingly fails. The Revenue’s next argument seeks to restore interest component of the above stated impugned demand. We are of the view that this issue is a consequential one only. We uphold lower appellate findings qua this interest issue as well. - Decided against revenue Challenging applicability of section 206C we have already extracted hereinabove Special Bench finding in the case of M/s. Bharti Auto Products vs. CIT [2013 (9) TMI 274 - ITAT RAJKOT ] rejecting an identical plea. The assessee fails in pointing out any distinction on facts or law therein - Decided against assessee - ITA Nos.350, 351, 352 & 353/RJT/2015 & C.O. Nos. 50, 51, 52 & 53/RJT/2015 - - - Dated:- 18-1-2016 - SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER Revenue by : Shri C.S. Anjaria, D.R. Assessee by : Shri Kamlesh Rathod, C.A. O R D E R PER S.S. GODARA, J.M. This set of eight cases comprises of Revenues four appeals and assessee s Cross Objections therein for Assessment Years 2011-12 to 2014-15. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground, which may be necessary. 8. It is, therefore, prayed that the order of the Ld. CIT(A) may be cancelled and that of the Assessing Officer may be restored to the above fact. 3. The assessee s averments in its Cross Objection read as under :- 1. The learned Income Tax Officer, TDS-3, Jamnagar as well as the Honourable Commissioner of Income Tax (Appeals), Jamnagar has erred in law as well as on facts in holding/confirming that trading activity of recycled Non Ferrous metals by the respondent is falling within the coverage of section 206C(1). 2. The learned Income Tax Officer, TDS-3, Jamnagar as well as the Honourable Commissioner of Income Tax (Appeals), Jamnagar has erred in law as well as on facts by invoking provisions of section 206C in spite of the fact that the respondent is not engaged in any manufacturing activity. 3. The learned Income Tax Officer, TDS-3, Jamnagar as well as the Honourable Commissioner of Income Tax (appeals), Jamnagar has erred in law as well as on facts by invoking provisions of section 206C inspite of the fact that at any point of preceding sales, the goods traded were never generated as scrap which is derived from any manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t source. The Assessing Officer referred to section 206C(1) read with Rules 37C D of the Income Tax Rules describing for such a tax collection on above stated scrap sales @ 1%. He would quote scrap definition under the above stated provision. The Assessing Officer sought to treat the assessee as the one in default so as to involve power of framing assessment under section 206C(6) of the Act. The assessee filed its reply on 05.12.2013, inter alia, furnishing copy of audit report, sale register acknowledgement of return along with computation of income. This was followed by it s yet another reply dated 30.12.2013. The assessee admitted as not to have collected tax on its scrap sales for the reason that it was a trading entity in brass scrap imported from overseas and domestic market sold in local market. It emphasised the fact of not being a manufacturing unit. The assessee asserted that scrap sold was not the one covered under section 206C Explanation (b) as per Rajkot Bench decision of the Tribunal. It was finally explained that neither the scrap has been generated from manufacture or mechanical working of material nor was it usable as such. 6. We notice from the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is definitely not usable as such. Resultantly, ground nos. 1 and 2 taken by the assessee in both the assessment years under appeal are dismissed. 8. The assessee s next argument raised in lower appellate proceedings was that it is not an assessee in default as having collected Form No.27C; albeit belatedly, a part of its scrap sales in question is already covered in earlier survey exercise decided in its favour and pending before the Hon ble jurisdictional High Court as follows :- 7.1 Grounds No. 5 6 is regarding whether appellant is assessee is default despite sales being made to manufacturers and declaration in form No 27C obtained and filed with the office of the Commissioner of Income Tax, Jamnagar but the same is filed late with office of CIT Ground No. 8 is in relation to the period under survey which has been covered in the earlier proceeding cannot be covered. As per provisions of section 206C(1A), no TCS is required to be made if the buyer furnishes a declaration in Form No. 27C to this effect. The appellant has submitted a chart showing the amount actually liable for the TCS since part of the year has already been subjected to earlier proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the TCS from the buyers and consequently the appellant cannot be treated as an assessee in default for not collection of TCS from such buyer. The case of the appellant is squarely covered by this decision. Therefore, View of AO is erroneous. Consequently, the appellant cannot be treated as an assessee in default for non collection of TCS on sale of scrap to manufacturer of ₹ 9,50,19,284/- where form no. 27C is obtained by appellant. Accordingly, appellant's grounds no 5, 6 8 are allowed. 8. As regards ground no. 9, 10 11 are in respect of high seas sales and the AR put forth the argument that the similar survey was already covered during the survey proceedings for A.Y. 2011-12 (for F.Y. 2010-11 till 06-12-2010), and the order was passed by the Hon. Commissioner of Income Tax (Appeals) - II, Rajkot in the appellant's favour and relevant copy of the order was also made available on record. The assessing officer has already raised the demand on the sale sand matter has already decided in favour of the assessee and the same is pending before the Gujarat High Court. Thus, the period which is already covered and decided cannot be again taken up and thus the figu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue is unable to point any distinction on facts or law therein. We accordingly see no reason to interfere with lower appellate findings remitting the issue back to the Assessing Officer for adjudication afresh as per law. The Revenue s corresponding ground accordingly fails. The Revenue s next argument seeks to restore interest component of the above stated impugned demand. We are of the view that this issue is a consequential one only. We uphold lower appellate findings qua this interest issue as well. Revenue s appeal ITA No.350/RJT/2015 fails. 10. This leaves us with assessee s Cross Objection raising a legal plea challenging applicability of section 206C in its case. We have already extracted hereinabove Special Bench finding (supra) rejecting an identical plea. The assessee fails in pointing out any distinction on facts or law therein. We see no ground to interfere with the lower appellate finding under challenge. The assessee s sole substantive ground fails accordingly. Same is the outcome of it s instant Cross Objection No.50/RJT/2015. 11. Same order to follow in Revenue s other three appeals i.e. ITA Nos.351, 352 353/RJT/2015 and assessee s Cross Objections i.e ..... 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