SREE MANJUNATHA WINES Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) Sri M.V. Sheshachala takes notice for respondent-revenue.

(2.) These two appeals and cross-appeals are taken up for consideration together as all these appeals are preferred against the very same order and they are disposed of by this common order.

(3.) The assessee is engaged in wholesale business of selling Indian Made Foreign Liquor to retailers. According to the ITO (TDS), Ward No. 1, Tumkur, while selling IMFL to retailers the assessee was liable to collect tax under section 206C of the Income-tax Act, 1961 (for short hereinafter referred to as "Act"). As tax was not collected and paid to the Government account, the assessee was treated as a defaulter and a demand was raised against the assessee and interest was also charged under section 206C(7) by a separate order? Aggrieved by the said orders, the assessee preferred appeals before the first appellate Authority, which however came to be dismissed upholding the order passed by the Income Tax Officer. Aggrieved by the same, the assessee preferred appeals before the Tribunal. The Tribunal has relied on the decision of this Court in Excise Commissioner v. Mysore Sales International Ltd., 2006 286 ITR 136 wherein the contention of the assessee that the retailers cannot be treated as buyers has been decided against the assessee and further held that if such a buyer has paid tax, adjustment should be given to the assessee and accordingly, set aside the impugned orders and remitted the matter back to the ITO (TDS) to pass fresh orders in the light of the observations in the aforesaid judgment, in particular Paragraph 34. In the light of the aforesaid position, the Tribunal has confirmed the findings of the ITO (TDS). Aggrieved by the said order, the revenue is in appeal challenging that portion of the order setting aside the orders passed by the Courts below and remanding the matters back to the authorities for fresh consideration in the light of the observations made in Para 34 of the aforesaid judgment. The assessee has also preferred the cross-appeals challenging the finding recorded in Para 39 of the aforesaid judgment relying on which it was held that the assessee is a buyer as defined under the Act.