Court No. - 35
Case :- INCOME TAX APPEAL No. - 120 of 2018 Appellant :- Apar Mukhya Adhikari Respondent :- Income Tax Officer Tds Counsel for Appellant :- Chhaya Gupta Counsel for Respondent :- S.C.,Ashish Agarwal
Hon'ble Bharati Sapru,J. Hon'ble Piyush Agrawal,J.
(Delivered by Hon. Piyush Agrawal,J.) The present appeal has been filed against the judgment and order dated 28.9.2015 passed the Income Tax Appellate Tribunal, Allahabad Bench, Allahabad in ITA No. 10/Alld/2015 for the Assessment Year 2011-12 in which following questions of law are framed:
"A. Whether the "Tehbazari" comes within the ambit of Section 206C(1C).
B. Whether the term "Parking Lot", "Toll Plaza", "Mining and quarrying" include "Tahbazari".
C. Whether the Apar Mukhya Adhikari, Zila Panchayat was responsible for collecting the tax at source under Section 206 C(1C) of Income Tax Act.
D. Whether the term "person" as defined under section 2(31) include "the Apar Mukhya Adhikari Zila Panchayat"."
The facts of the case are that applicant is Apar Mukhya Adhikari, Zila Panchayat, constituted under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. In order to regulate its functioning a policy was announced whereby Tehbazari, Tahbazari-Vahan stand and Balu Morang, Gitti Bolder- Vahan Shulk is auctioned and authority letter is issued to the highest bidder.
The assessing authority on the basis of the survey dated 3.5.2012 conducted under section 133-B of the Income Tax Act (hereinafter referred to as the Act) the amount collected by Zila Panchayat falls under and within the scope of tax collected at source (TDS). The Assessing Officer worked out the amount of short collection and amount of interest under section 206(7) of the Act and was of the further view that grant of licence or transfer its right through auction to contractors/agents to collect fee is nothing but toll and imposed tax accordingly.
The order was assailed by the applicant before the CIT (Appeals). The appeal was dismissed and the order of the Assessing Authority was affirmed against which the appellant filed an appeal before the Tribunal and by means of the impugned order 28.9.2015 the orders of the Assessing Officer and CIT (Appeals) were affirmed.
We have heard Ms. Chhaya Gupta, learned counsel for the appellant and Sri Ashish Agarwal, learned counsel appearing for the Income Tax Department.
It was argued by the learned counsel for the appellant that the issue involved in the present appeal is squarely covered by the judgment and order dated 9th August, 2018 passed in Income Tax Appeal No. 10 of 2016 inter parties. It was further argues that this Court was pleased to hold that the toll plaza does not include Tehbazari inasmuch as there is no toll set up for collecting the Tahbazari when licence for collecting the Tahbazari issued. The Tahbazari has different connotation and it is not a toll as held by the Tribunal.
The aforesaid view taken by this Court could not be disputed by the counsel appearing for the respondents.
On perusal of the order of this Court dated 9th August, 2018 passed in Income Tax Appeal No. 10 of 2016 inter parties the issued involved in the present appeal is squarely covered.
In view of the above facts and circumstances of the case the present appeal is allowed and the questions of law are answered in favour of the appellant assessee and against the Revenue.
Order Date :- 31.1.2019 samz