Apar Mukhya Adhikari Vs ITO (ITAT Allahabad)
Under Section 206C(1C) of the Act every person, who grants a lease or a licence is required to collect tax at the prescribed rate from the licencee for granting lease/licence or otherwise transferring any right or interest to any other person with respect to parking lot, toll plaza, mine or quarry.
The Tahbazari is not an item which is provided under this Section for collecting TCS. If a licence or lease is issued in favour of any other person for collecting the Tahbazari, it cannot be said that lessee is collecting toll on such licence or lease, as the case may be. We are required to construe the taxing provisions strictly and cannot give liberal interpretation to a taxing provision.
Toll plaza does not include Tahbazari inasmuch as there is no toll set up for collecting the Tahbazari when licence for collecting the Tahbazari is issued. The Tahbazari has different connotation and it is not a toll .
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
1. Present appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) has been filed by the appellant-assessee against the order dated 28th September, 2015 passed by the Income Tax Appellate Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as “Tribunal”) in ITA Nos. 09,10, 11/Alld/2015.
2. The relevant Assessment Years are 2010-11, 2011-12 and 2012-13.
3. The following questions of law have been formulated in memo of appeal for decision by this Court:
“A. Whether the “Tahbazari” 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 206C(1C) of Income Tax Act; and
D. Whether the term “person” as defined under Section 2(31) includes “the Apaar Mukhya Adhikari Zila Panchayat’.
4. The appellant is Apar Mukhya Adhikari, Zila Panchayat constituted under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as “Adhiniyam”). In order to regulate its functions, a policy was formulated whereby Tahbazari, Tahbazari-Vahan Stand and Balu- Morang, Gitti Bolder-Vahan Shulk is auctioned and authority letter is issued to the highest bidder.
5. The Assessing Officer (hereinafter referred to as “A.O.” conducted a survey under Section 133-B of the Act on 3rd May, 2012. It was noticed that there were three kinds of auctions: (i) Tahbazari (ii) Tahbazari- Vahan Stand (iii) Balu-Morang and Gitti Bolder-Vahan Shulk.
6. The Zila Panchayat had issued licences to different persons (through tender and auction) for collection of Tahbazari etc.
7. The A.O. was of the view that the amount collected by the Zila Panchayat fell under/within the scope of Tax collected at source (hereinafter referred to as “TCS”).
8. The A.O. worked out the amount of short collection and amount of interest under Section 206 (7) of the Act as under:
FY 2009-10
