TMI Blog2018 (11) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... o admit the additional evidence and restore the issue to the A.O. to consider whether the assessee is liable for tax collection at source u/s 206C - Appeals filed by the assessees are allowed for statistical purposes. - ITA No.83/Coch/2017, ITA No.84/Coch/2017, ITA No.85/Coch/2017, ITA No.86/Coch/2017, ITA No.87/Coch/2017, ITA No.170/Coch/2017, ITA No.171/Coch/2017, ITA No.172/Coch/2017, ITA No.173/Coch/2017 And ITA No.174/Coch/2017 - - - Dated:- 15-11-2018 - Shri Chandra Poojari, AM And Shri George George K, JM For The Appellants : Sri. P. Raghunathan For The Respondent : Smt.A. S. Bindhu ORDER Per Bench: These 10 appeals at the instance of two assessees are directed against two consolidated orders of the CIT(A) dated 27.12.2016 and 09.01.2017. Since common issues are raised in these appeals, they are heard together and are being disposed off by this consolidated order. 2. The brief facts of the case are as follows:- The assessees are dealers in timber. It imports timber from Myanmar and selling to various retailers and other customers. The Assessing Officer found that the assessees were not collecting tax at source as per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petitions filed by the assessee and the same was confirmed by the Division Bench. 3. In the meanwhile the assessees had also filed appeals before the first appellate authority. The CIT(A) rejected the appeals by placing reliance on the judgment of the Hon ble High Court of Kerala in the case of Excel Timber Pvt. Ltd. vs. DCIT and ITO(TDS) (2015) 232 Taxmann 279. 4. Aggrieved by the orders of the CIT(A), the assessees have preferred these appeals before the Tribunal. A petition under Rule 29 of the ITAT Rules, 1963 and an affidavit of the Managing Director s of assessee-companies for admission of additional evidences was filed. The additional evidences now sought to be admitted are Form No.27C declarations and the declarations countersigned by the Chartered Accountant stating that certain buyers of timber from the assessees had included the same in their turn over and have duly paid taxes on it. The crux of the affidavit by the Managing Directors for admission of the additional evidences is that provision of Section 206C of the I.T. Act was in the statute from the year 1993 and in the past years, there were no proceedings initiated against the assessees u/s. 206C of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Tax at Source. In the same manner, the Petitioners have been able to get details like PAN of those buyers who have not issued Declarations based on which the Assessing Authorities are entitled to make enquiries. It may be noted that since the proceedings were initiated much after the assessment years were over and in view of the fact that though the provision has been in existence from 01.04.1993 and the Officers had always maintained that cases like the Petitioners were not covered by Sec. 206C, the Petitioners had not obtained the Declarations and other evidences in time. 9. Further, at this distance of time, though the Petitioners are found liable to pay TCS and amounts are demanded from them, the Petitioners will not be able to collect such amounts from the Buyers and at the same time, the Buyers will not be able to file Revised Returns and claim refund of such amounts. 10. The documents produced as annexure to this application would very clearly show that the Petitioners are not liable to be assessed and found liable to pay TCS. The Petitioners will be put to irrecoverable loss and injury if the documents produced as annexure are not received in evidence in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 206C(6A) of the I.T. Act, when the buyers of timber from the assessee had duly paid taxes on it, the assessee cannot be treated as an assessee in default . The proviso to section 206C(6A) is effective from 1.7.2012. 8.1 When orders u/s. 206C of the Act were received, the assessee challenged the same by filing writ petitions before the Hon ble High Court of Kerala. The contention before the Hon ble High Court was that assessee is not liable under the provisions of section 206C since the timber sold by it was imported and not obtained under forest lease or any other mode other than forest lease. However, the Single Judge of the Hon ble High Court dismissed the W.P. s and further appeals were preferred by the assessee before the Division Bench. When the appeals were pending before the Division Bench of the Hon ble High Court, the CIT(A) dismissed the appeals of the assessee relying on the Single Judge s judgment of the Hon ble High Court of Kerala. Before the CIT(A), the assessee had raised the grounds that it is not liable for TCS by virtue of section 206C(1A) of the Act and proviso to section 206C(6A) of the Act (Ground Nos. 4 5 raised before the CIT(A)). When the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phs, the assessee had filed W.P. before the Hon ble High Court that it was not liable for TCS under the provisions of section 206C of the I.T. Act and therefore, the matter was sub judice. In the light of the above factual background, Form No. 27C declarations, needs first to be examined by the AO and he shall forward the same to Principal CIT or CIT as the case may be. The Assessing Officer shall also examine the declarations countersigned by the Chartered Accountant stating that the buyers of timber from the assessee had duly paid the taxes on the same. The AO after examining Form 27C declarations and declarations countersigned by the CA, shall take a decision in accordance with law after affording a reasonable opportunity of hearing to the assessee. It is ordered accordingly. Therefore appeals of the assessee are allowed for statistical purposes. 5.1 In view of the above orders of the Tribunal (supra), we deem it appropriate to admit the additional evidence and restore the issue to the A.O. to consider whether the assessee is liable for tax collection at source u/s 206C of the I.T.Act. 6. In the result, the appeals filed by the assessees are allowed for statistical purp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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