M/s. Areva T & D India Ltd., Noida V. ACIT (TDS), Noida

CO 482/DEL/2012

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4719 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 1 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 28-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S N
• Keywords: Tax effect; TDS
• Section: 268A; 192; 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA ACCOUNTANT MEMBER ITA NO. 5789/DEL/2012 [A.Y 2008-09] ITA NO. 5790/DEL/2012 [A.Y 2009-10] & CO NO. 482/DEL/2012 [A/O ITA NOS. 5719/DEL/2012 [A.Y 2008-09]] CO NO. 483/DEL/2012 [A/O ITA NOS. 5720/DEL/2012 [A.Y 2009-10]] ALSTOM T & D INDIA LTD VS. THE A.C.I.T. A 7, SECTOR 65 , NOIDA TDS, NOIDA PAN : AAACG 2115 R ITA NOS. 5719/DEL/2012 [A.Y 2008-09] ITA NOS. 5720/DEL/2012 [A.Y 2009-10] THE A.C.I.T. VS. AREVA T & D INDIA LTD TDS, NOIDA A 7, SECTOR 65 , NOIDA PAN : AAACG 2115 R ASSESSEE BY : SHRI TUSHAR JARWAL, ADV SHRI ANURAG SOAN, ADV REVENUE BY : SHRI S.N. PANDEY, S R. DR [APPELLANT] [RESPONDENT] DATE OF HEARING : 24.02.2020 DATE OF PRONOUNCEMENT : 25.02.2020 2 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, ITA NO. 5719/DEL/2012 [A.Y 2008-09] ITA NO. 5720/DEL/2012 [A.Y 2009-10] THESE TWO APPEALS BY THE REVENUE ARE PREFERRED AGAI NST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX [APP EALS] - NOIDA DATED 13.08.2012 PERTAINING TO ASSESSMENT YEARS 200 8-09 AND 2009-10. 2. A PERUSAL OF THE GRIEVANCE OF THE REVENUE SHOWS THAT THE TAX EFFECT WOULD BE LESS THAN RS. 50 LAKHS AND HENCE TH E APPEALS HAVE TO BE DISMISSED IN THE LIGHT OF THE CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019. 3. THE LD. DR VEHEMENTLY STATED THAT THIS CIRCULAR IN NOT APPLICABLE TO THE EXISTING APPEALS AS IT IS PROSPECTIVE IN NAT URE. 4. IN OUR CONSIDERED OPINION, THE LANGUAGE OF THE C IRCULAR 17/2019 DATED 08.08.2019 CLEARLY SHOWS THAT IT HAS REFERRED TO THE EARLIER CIRCULAR 3/2018 AND ITS AMENDMENT DATED 20.08.2018 VIDE WHICH MONETARY LIMIT FOR FILING OF INCOME TAX APPEALS BY THE DEPARTMENT BEFORE THE ITAT, HON'BLE HIGH COURT, SLP/AND APPEAL S BEFORE THE 3 HON'BLE SUPREME COURT HAVE BEEN SPECIFIED. IT WOUL D BE PERTINENT TO REFER TO THE CIRCULAR NO. 17/2019 WHICH READS AS UN DER: CIRCULAR NO. 17/2019 NEW DELHI. 8TH AUGUST 2019 SUBJECT: - FURTHER ENHANCEMENT OF MONETARY LIMITS F OR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME T AX APPELLATE TRIBUNAL, HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT - AMENDMENT TO CIRCULAR 3 OF 2018 - MEASURES FOR REDUCING LITIGATION.- REFERENCE IS INVITED TO THE CIRCULAR NO.3 OF2018 DA TED 11.07.2018 (THE CIRCULAR) OF CENTRAL BOARD OF DIREC T TAXES (THE BOARD) AND ITS AMENDMENT DATED 20TH AUGUST. 20 18 VIDE WHICH MONETARY LIMITS FOR FILING OF INCOME TAX APPE ALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL. HI GH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT HAVE B EEN SPECIFIED. REPRESENTATION HAS ALSO BEEN RECEIVED TH AT AN ANOMALY IN THE SAID CIRCULAR AT PARA 5 MAY BE REMOV ED. 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATI ON. IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIMITS FOR FILING OF APPEALS IN INCOME-TAX CASES BE ENHANCED FURTHER THR OUGH 4 AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY, THE TABLE FOR MONETARY LIMITS SPECIFIE D IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN IT MATTERS MONETARY LIMIT (RS.) 1. BEFORE APPELLATE TRIBUNAL 50,00,000/- 2. BEFORE HIGH COURT 1,00.00.000/- 3. BEFORE SUPREME COURT 2.00.00,000/- 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FIL ING OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS-A-VIS WHER E COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED. PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: '5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX E FFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN M ORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT S PECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF A N ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. FURTHE R, EVEN IN 5 THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR AP PELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT Y EAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMI T SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDE R/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE. EACH ASS ESSEE SHALL BE DEALT WITH SEPARATELY.' 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FR OM THE DATE OF ISSUE OF THIS CIRCULAR. 5. THE SAME MAY BE BROUGHT TO THE NOTICE OF ALL CON CERNED. 6. THIS ISSUES UNDER SECTION 268A OF THE INCOME-TAX ACT, 1961. 7. HINDI VERSION WILL FOLLOW. 5. AS MENTIONED ELSEWHERE BY CIRCULAR 17/2019, THE CBDT HAS FURTHER ENHANCED THE MONETARY LIMIT FOR FILING OF A PPEALS AND THE SAME IS AMENDMENT TO CIRCULAR 3/2018. WE FIND THAT CLAU SE 13 OF CIRCULAR 3/2018 READS AS UNDER: 6 THE CIRCULAR WILL APPLY TO SLPS/APPEALS/CROSS OBJE CTIONS /REFERENCES TO BE FILED HENCEFORTH IN HON'BLE SUPRE ME COURT/TRIBUNAL AND IT SHALL ALSO APPLY RETROSPECTIV ELY TO PENDING SLPS/APPEALS/CROSS OBJECTIONS/REFERENCES. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/NOT PRESSED. 6. IN LIGHT OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT CIRCULAR NO. 17/2019 SHALL ALSO APPLY RETROSPECTIVE LY TO PENDING APPEALS. IN THAT VIEW OF THE MATTER, THE APPEAL FI LED BY THE REVENUE STANDS DISMISSED. 7. AS A RESULT, BOTH THE APPEALS OF THE REVENUE STA ND DISMISSED. CO NO. 482/DEL/2012 CO NO. 483/DEL/2012 8. BOTH THESE CROSS OBJECTIONS ARE DISMISSED AS WIT HDRAWN. ITA NO. 5789/DEL/2012 [A.Y 2008-09] ITA NO. 5790/DEL/2012 [A.Y 2009-10] 9. THE COMMON GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF INTEREST U/S 201(1A ) OF THE ACT. 7 10. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASS ESSEE DREW OUR ATTENTION TO THE CHART OF DEDUCTION AND DEPOSITION OF TDS U/S 192 OF THE ACT WHICH IS AS UNDER: 8 11. IT IS THE SAY OF THE LD. COUNSEL FOR THE ASSESS EE THAT AS PER PROVISIONS OF SECTION 192(3) OF THE ACT, ADJUSTMENT FOR ANY EXCESS DEDUCTION OR DEFICIENCY ARISING OUT OF ANY PREVIOUS DEDUCTION OR FAILURE TO DEDUCT DURING THE SAME F.Y. HAS BEEN ALLOWED. T HE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT IN F.Y. 2007-08, IN T HE MONTHS OF SEPTEMBER TO DECEMBER, THERE WAS EXCESS DEDUCTION A ND SIMILARLY IN F.Y. 2008-09, IN THE MONTHS OF JULY TO DECEMBER, TH ERE WAS EXCESS DEDUCTION OF TAX. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT IF THE PROVISIONS OF SECTION 192(3) ARE COMPLIED WITH, NO INTEREST IS LEVIABLE. 12. THE LD. DR SUPPORTED THE FINDINGS OF THE ASSESS ING OFFICER. 13. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE T AX DEDUCTION AND DEPOSITION, AS EXHIBITED ELSEWHERE, WHICH IS PART O F THE ASSESSMENT ORDER. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. PROVISIONS OF SECTION 192(3) OF THE ACT CLEARLY ALLOW THE ADJUSTMENT OF EXCESS DEDUCTION IN THE SAME PREVIOUS YEARS. SINCE THERE ARE EXCESS DEDUCTIONS IN SOME MONTHS, WE DEEM IT FIT TO RESTORE THE ISSUES TO THE FILE OF THE ASSESSING OFFICER. T HE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CHART WHICH IS ALSO EXHIBIT ED IN HIS ASSESSMENT ORDER ITSELF AND DECIDE THE ISSUE IN LIGHT OF PROVI SIONS OF SECTION 192(3) OF THE ACT. 9 14. BOTH THESE APPEALS ARE TREATED AS ALLOWED FOR S TATISTICAL PURPOSES. 15. TO SUM UP, IN THE RESULT, ITA NO. 5719/DEL/2012 - DISMISSED ITA NO. 5720/DEL/2012 - DISMISSED CO NO. 482/DEL/2012 - WITHDRAWN CO NO. 483/DEL/2012 - WITHDRAWN ITA NO. 5789/DEL/2012 - ALLOWED FOR STATISTICAL PURPOSES ITA NO. 5790/DEL/2012 - ALLOWED FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 25.02. 2020. SD/- SD/- [H.S. SIDHU] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 25 TH FEBRUARY, 2020. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 10 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER