The Tax Publishers2021 TaxPub(DT) 0211 (Del-Trib)

INCOME TAX ACT, 1961

Section 250(6)

Where order of the CIT(A) was ex-parte order and he had not decided the matter on merit, therefore, considering the totality of the facts of the case and in interest of justice, it would be proper to restore the issue back to CIT(A) with the direction to grant one final opportunity to assessee to represent his case and decide the issue as per fact and law and assessee was also directed to appear before the CIT(A).

Appeal [CIT(A)] - Ex-parte order - Short deduction of TDS - Services of testing and commissioning availed of from BHEL

Assessee was engaged in the business of generation of power by setting up of 3X 660 MW Super Critical Thermal Power Plant and for that he availed services of erection, installation, insurance, testing and commissioning from BHEL on which TDS @ 2% under section 194C was deducted. Further, assessee had also incurred expenses towards rent of Plant & Machinery on which TDS @ 2% under section 194-I was deducted. AO passed order under section 201/201(1A) and held that the assessee was liable to deduct TDS @ 10% under section 194J on services of testing and commissioning availed of from BHEL, instead of TDS @ 2% under section 194C and so, assessee had short deducted tax at source on aforesaid services. AO further held that assessee was liable to deduct TDS @ 10% under section 194-I on rental payments, instead of TDS @ 2% under section 194-I. Accordingly, assessee had short deducted tax at source on rent. CIT(A) dismissed the appeal of the assessee ex-parte. Held: From the perusal of the order of CIT(A), it can be seen that the order of the CIT(A) was ex-parte order and he had not decided the matter on merit. Considering the totality of the facts of the case and in interest of justice, it would be proper to restore the issue back to CIT(A) with the direction to grant one final opportunity to the assessee to represent his case and decide the issue as per facts and law. Assessee was also directed to appear before the CIT(A).

REFERRED :

FAVOUR : Matter remanded.

A.Y. : 2013-14 to 2014-15


INCOME TAX ACT, 1961

Section 250(6)

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