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TMI Blog2018 (11) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 of section 206C of the I.T.Act. Accordingly, the Assessing Officer passed order u/s 206C, making the assessees liable for tax and interest. The details of the tax liability and interest liability in the case of M/s.Excellent Timber Imports & Exports Private Limited reads as follows:- Asst.Year Tax collectible u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance 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 admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Excel Timber Pvt. Ltd. vs. DCIT & ITO(TDS) (supra). The relevant portion of the affidavit stating the reasons for non-furnishing of Form 27C declarations and declarations countersigned by the Chartered Accountant reads as follows:- "7. When the appeals filed by the Appellants - as well as other assesses identically placed who were represented by a common Auditor - were posted for hearing by the Appellate Authority, it was pointed out that the Writ Appeals were in the process of being heard. However, without considering the said request, the Appellate Authority, as per orders dated 27.12.2016 dismissed all the appeals - placing reliance on the decision of the learned Single Judge in EXCEL TIMBER PVT. LTD. Vs. DEPUTY COMMISSION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced as annexure are not received in evidence in the above appeals." 4.1 It was further submitted by the learned AR that an identical issue was considered by the Tribunal in the case of the sister-concerns of the assessee, viz., (i) M/s.Hillwood Imports and Exports Pvt. Ltd. [ITA Nos.106 to 111/Coch/2017], (ii) M/s.Hillwood Furniture (P) Ltd. [ITA Nos.112 to 117/Coch/2017], and (iii) M/s.Hillwood Timbers [ITA Nos.118 to 120/Coch/2017]. It was stated that the Tribunal vide its order dated 11.09.2017, admitted the identical additional evidence filed by the assessees in those case on record and restored the cases to the A.O.'s directing him to consider the case afresh in accordance with law in light of admission of additional evidence. 4.2 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not for trading purposes per se, assessee need not make TCS, provided buyers furnish Form No. 27C declarations. Further, the assessee's contention is that by virtue of proviso to section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al piece of evidences as regards the issue of liability of the assessee u/s. 206C of the Act, in the interest of substantial justice and equity, we are of the view that the same needs to be admitted as additional evidences and we admit the same on record. 8.2 When the additional evidences are taken on record, the same necessarily needs to be examined by the Assessing Officer and for above stated purpose, the entire issue is restored to the file of the Assessing Officer. The assessee shall prove with necessary material/evidences that it is not liable for TCS by virtue of provisions of section 206C(1A) of the Act and proviso to section 206C(6A) of the Act (with effect from 1.7.2012). 8.3 As regards the time limit mentioned for furnishin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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