Chhogmal Chiranji Lal and ors. Vs. Cit and ors. - Court Judgment

Excerpt:
counsels: dinesh mehta, for the assessee l.m lodha, for the revenue in the rajasthan high court bhagwati prasad, j. - - section 201(1) of the act is reproduced hereinbelow :(1) if any such persons and in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under this act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of the tax :provided that no penalty shall be charged under section 221 from such person principal officer or company unless the assessing officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct and pay the tax. the argument of the learned counsel for the petitioner is that notice annexure 2 which requires him to show cause has not clearly recorded that the petitioner is an assessee in default. the petitioner has further submitted that income tax officer (tds) who had issued notice annexure-2 had no jurisdiction to assess and pass an order annexure-3 because under section 197 of the act, it is the commissioner or joint commissioner who are the officers to whom the matter is to be referred and, therefore, the notice is bad for want of jurisdiction also. section 201 of the act clearly states that the petitioner is an assessee in default then, he was required to deposit the tax which he was required to deduct at source.bhagwati prasad, j.the present batch of petitions involve identical questions of law and facts. in this background, they are decided by a common judgment. for factual matrix. details of the case of m/s chhogmal chiranji lal v. cit & ors. are taken into consideration.2. in this case, the petitioner has challenged the action of the respondents in issuing the order annexure-3 and annexure-5. the orders impugned have been passed against the petitioner in the background that there were certain deposits with the petitioner and he was required to deduct income-tax on the payment of interest on such deposits. section 201(1)(sic) of the income tax act, 1961 (hereinafter referred to as 'the act') provides that as and when such tax is paid on deposits, tax is required to be deducted at source. such deduction is waived where recipient of interest, even after receiving the interest does not become a person, who is liable to pay tax and furnishes a form no. 15h.this is the admitted position that the petitioner had paid interest to depositors. from such depositors form 15h was not received by him for the financial year 1998-99 upto 31-3-1999. section 20(1)(sic) of the act requires that as and when interest is paid on deposits, tax is required to be deducted at source. this is permitted to be not done, when the recipient furnishes form 15h, within the financial year. section 201(1) of the act is reproduced hereinbelow :'(1) if any such persons and in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under this act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of the tax : provided that no penalty shall be charged under section 221 from such person principal officer or company unless the assessing officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct and pay the tax.3. a show-cause notice was issued to the petitioner on 26-5-1999, deeming him to be an assessee in default in respect of the tax which was required to be deducted by him at source for the financial year 1998-99. in the notice annexure-2, it was said that why the case of the petitioner be not referred to commissioner for the levy of penalty.the argument of the learned counsel for the petitioner is that notice annexure 2 which requires him to show cause has not clearly recorded that the petitioner is an assessee in default. the relevant para of the notice annexure-2 reads as under :'(b) although you had paid interest exceeding rs. 2,500 to various creditors and from whom you had not received form no. 15h during the financial year 1998-99, yet you have not deducted tax at source.'learned counsel for the petitioner submits that in terms of section 197a(1a) of the act, no limitation is prescribed for submission of form 15h. as per section 197(2) of the act, the petitioner could deposit the form so received by seventh day of the month next following the month in which the declaration is furnished to him. if the petitioner has received the form 15h on 1-4-1999 then, it is a mere technical default and no tax can be recovered from the petitioner.the petitioner's further case is that the petitioner has received the form on 1-4-1999 and thus it should be deemed that the requirement of law has been complied because he could submit it to the department upto 7-4-1999. the petitioner had received the form before he was required to submit the same to the authorities. the petitioner has further submitted that income tax officer (tds) who had issued notice annexure-2 had no jurisdiction to assess and pass an order annexure-3 because under section 197 of the act, it is the commissioner or joint commissioner who are the officers to whom the matter is to be referred and, therefore, the notice is bad for want of jurisdiction also.4. learned counsel for the respondents had joined the issue and have contested that receiving form 15h on 1-4-1999 does not absolve the liability of the petitioner of paying tax. section 201 of the act provides a deeming clause that as and when the payer of the interest does not deduct the whole or any part of the tax will be deemed to be an assessee in default in respect of tax. the exception to it is provided in section 197a(1a) of the act which reads as under :(1a) notwithstanding anything contained in section 193 or section 194a or section 194k, no deduction of tax shall be made under any of the said sections in the case of a person not being a company or a firm, (if such person furnishes to the person) responsible for paying any income of the nature referred to in section 193 or section 194a or section 194k, as the case may be, a declaration in writing in duplicate in the prescribed form and verified in the prescribed manner to the effect that the tax on his estimated total income of the previous year in which such income is to be included in computing his total income will be nil.5. this is the admitted part of the case that until the end of the financial year 1998-99, form was not received by the petitioner. until the petitioner receives the form no. 15h, he was under obligation to deduct the tax. since, the obligation was not discharged by the petitioner, it tantamounts to default. by deeming clause under section 201(1) of the act by such an act the petitioner was liable to be branded as an assessee in default.the petitioner having paid the interest above rs. 2,500 without deducting tax at source was liable to be deemed as an assessee in default. the exception provided in section 197a(1a) of the act cannot be invoked in the matter of petitioner as he has not received the form 15h till the time he paid interest more than rs. 2,500. as per law, the form 15h was to be received before payment of interest. in case the form is not received, the deduction of tax was a must. the liability of payment of tax is therefore, automatic on the head of the petitioner. the only act subsequent thereto is an act which the petitioner himself was required to comply by depositing the tds, with the department. as and when there is liability of tax, the persons on whose head the liability comes, is under obligation to pay the same. any intimation or information in that regard is only a ministerial act. the petitioner cannot contend that he was not intimated about the liability of tax. levy of tax becomes operative with the payment of interest above rs. 2,500 and not receiving form 15h. the petitioner has not charged the tax on payment of interest above the amount rs. 2,500. he was not given form 15h at that time.6. the learned counsel for the respondents further submitted that the petitioner is an assessee in default by operation of law as provided in section 201 of the income tax act. notice annexure-2 was for the purpose of asking the petitioner to show cause as to why penalty should not be imposed on him. this notice was sufficient indication of the intention of the department that the petitioner has been construed to be an assessee-in- default. after having received annexure-2, the petitioner has not joined issue. he has not cared to file the reply to this notice and thus, has neglected to take steps provided in law.an assessee who neglects a lawful notice is not entitled to invoke extraordinary jurisdiction of this court under article 226 of the constitution of india. the lawful actions of the department are required to be seen with responsibility by the taxpayers. if they chose to ignore the notice under the impression that the show cause was only for proposing penalty and after issuance of notice, commissioner or assistant commissioner would have issued notice to the petitioner, then that tantamounts to an indifferent attitude of tax-payers.apart from issuance of notice annexure-2, proceedings were also initiated by the income tax officer tds and an order was passed under section 212 read with section 201 of the act. by this order, the petitioner was required to pay a specific sum as amount of tax which he was required to deduct as tds. such order has been filed by the petitioner as annexure-3. a revision was preferred by the petitioner against such order in the office of the commissioner. this revision was decided by the commissioner by the order dated 24-1-2001. the argument of the learned counsel for the petitioner was considered and the commissioner came to the conclusion and held that as per section 194a of the act while paying the interest, the assessee was required to deduct the tax at source. the petitioner has not received form 15h claiming exemption from payment of tax. such form 15h appears to have been received by the petitioner on 1-4-1999. it has been concealed by the commissioner that the day when the interest was credited by the assessee-firm, it had not received the form no. 15h. under the law, the assessee was required to deduct the tax at source. the admitted position has been noticed by the commissioner that the form 15h was received after the date of the credit of interest to the various persons. thus, the commissioner has upheld the order passed by the income tax officer tds hanumangarh under section 201(1) of the act and has upheld the demand under section 156 of the act. in this background, the application of the petitioner under section 264 of the act was rejected.7. i have considered the rival submissions and have perused the record. what is not denied is that the form 15h was received by the petitioner on 1-4-1999. the interest was paid to various depositors for amount more than rs. 2,500 during the financial year 1998-99. no tax was deducted at source until 31-3-1999. thus, in the financial year 1998-99 though the petitioner firm credited interest to various persons above rs. 2,500 yet it has not deducted tax at source. the petitioner has not received the form 15h until the conclusion of financial year 1998-99. in this background, if the argument of the learned counsel for the petitioner is accepted that the form was received on 1-4-1999, and it is only a technical breach then, what would follow is that the deeming clause in section 201 of the act will become redundant. the provision of law can never be considered to be redundant. section 201 of the act is required to be operated against the petitioner. having not received form 15h within the financial year 1998-99, he will be deemed to be an assessee in default. therefore, on this count, no illegality is seen in the action of the respondent-officers of the income tax department.8. once, it is held that the petitioner has been rightly assessed to be an assessee in default, then the liability of tax stands incurred by the petitioner. for an incurred tax liability, the assessee are required to pay the tax. in case, the department has not issued any notice before passing an order raising demand, then no illegality can been seen in the action of the respondent department. no such notice is provided under the act. section 201 of the act clearly states that the petitioner is an assessee in default then, he was required to deposit the tax which he was required to deduct at source. having not deducted the same, he is required to deposit the amount with the department. passing such an order is only enforcement of an incurred liability by the petitioner. the commissioner also has committed no illegality in enforcing the demand incurred by the petitioner in passing order annexure-5.9. the argument of the learned counsel for the petitioner that having received the form on 1-4-1999, it is only a technical default and, therefore, no order could have been passed against the petitioner shows the casual attitude of the petitioner. the argument cannot be sustained for the simple reason that if law provides for doing a thing in an particular manner, then it has to be done in that manner alone. the petitioner could have deducted the tax at source in the manner provided by the act. having violated the law, he has incurred the liability under the act. therefore, the argument is not sustainable that the fault was only technical. further, the argument of the learned counsel for the petitioner is that it is the commissioner who alone could have done it is also not sustainable because the commissioner or assistant commissioner will handle the case of penalty which may be imposed on the petitioner pursuant to annexure-2. as far as the liability of the petitioner is concerned under annexure-3 and annexure-5, no illegality is seen. further, the petitioner after receiving annexure-2 has not done what was expected of him. as and when a notice is issued, the same is required to be answered. he has neglected his part and thus, he is a neglectful taxpayer. on this count also, no interference is called for in the writ petition filed by the petitioner.there is no force in the writ petitions. the writ petitions are hereby dismissed. the stay applications are also dismissed.