John Deere Equipment Pvt. Ltd., Pune V. ITO(TDS) Wd.-2, Pune

ITA 1006/PUN/2006

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56551 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 23-10-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGHSMT NEERA MALHOTR A
• Assessee Lawyers: S U PATHAKNIKHIL PATHAK
• Keywords: Recovery proceedings; Opportunity of being heard; Application of stay; Non-deduction of tax; Capital receipt
• Section: 143(3); 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER S.NO. ITA NO. F. YEAR 1. 1006/PN/06 2001-02 2. 1007/PN/06 2002-03 3. 1008/PN/06 2003-04 4. 1009/PN/06 2004-05 5. 1010/PN/06 2005-06 JOHN DEERE EQUIPMENTS P. LTD., .. APPELLANT (FORMERLY KNOWN AS L & T JOHN DEERE P. LTD) OFF. PUNE NAGAR ROAD, SANASWADI, PUNE VS. INCOME-TAX OFFICER, RESPONDENT (TDS)-2, PUNE APPELLANT BY : S/SHRI S U PATHAK/NIKHIL P ATHAK RESPONDENT BY : SHRI S K SINGH/SMT NEERA MA LHOTRA DATE OF HEARING : 18.10.2011 DATE OF PRONOUNCEMENT : .11.2011 ORDER PER G. S. PANNU, A.M : SINCE A COMMON ISSUE IS INVOLVED IN ALL THE CAPTIONED AP PEALS, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF T HIS COMBINED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. ALL THESE APPEALS ARE DIRECTED AGAINST A COMMON ORDE R OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, PUNE DATED 25.9 .2006, WHICH IN TURN, 2 HAS ARISEN FROM THE SEPARATE ORDERS OF THE INCOME-TAX O FFICER (TDS), WARD-2, PUNE PASSED UNDER SECTIONS 201(1) AND 201(1A)READ WITH SECTION 194A OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT.), PERTAINING TO THE FINANCIAL YEARS 2001- 02 TO 2005-06 DEMANDING TAX DEDUCTED SOURCE (IN SHORT TDS) AND INTEREST THEREON UNDER SECTIONS 201(1) AND 201(1A) OF THE ACT R ESPECTIVELY. 3. THESE APPEALS WERE EARLIER DECIDED BY OUR CO-ORDIN ATE BENCH VIDE ORDER DATED 28.9.2007. NOT BEING SATISFIED WITH THE DECISIO N OF THE TRIBUNAL, THE REVENUE AND THE ASSESSEE PREFERRED TO FILE APPEALS AND CROSS-OBJECTIONS RESPECTIVELY BEFORE THE HONBLE BOMBAY HIGH COURT, AN D THE HONBLE COURT VIDE ITS ORDER DATED 16.11.2009 IN INCOME-TAX APPEAL NO 13 22 & OTHERS OF 1999 HAS SET-ASIDE THE ORDER OF THE TRIBUNAL AND RESTORED THE APPEALS TO THE FILE OF THE TRIBUNAL FOR CONSIDERATION AFRESH IN ACCORDANCE WITH LAW KEEPING ALL RIVAL CONTENTIONS ON MERIT OPEN. ACCORDINGLY, THE CAPTIONED PROCEEDINGS WERE LISTED AND THE RIVAL PARTIES HAVE BEEN HEARD AT LENGTH. 4. THE COMMON ABRIDGED GROUNDS OF APPEAL READ AS FOLLO WS: ON FACTS AND IN LAW, 1. THE LD CIT(A) ERRED IN CONFIRMING THE FOLLOWING D EMAND FOR THE F.YS 2001-02 TO 2005-06:- FINANCIAL YEAR TDS (RS) INTEREST (RS) TOTAL (RS) 2001-02 1,13,806/- 57,184/- 1,70,990 /- 2002-03 2,20,49,258/- 71,10,867/- 2,91,60,125/- 2003-04 2,42,33,804/- 46,04,422/- 2,88,38,226/- 2004-05 2,64,75,036/- 18,53,250/- 2,83,28,286/- 2005-06 1,17,02,193/- 1,17,021/- 1,18,19,214/- 2. THE LD CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DEMAND RAISED BY THE AO WITHOUT APPRECIATING THAT THE APPELLANT COMPANY WAS NOT REQUIRED TO DEDUCT TDS ON THE PAYMENTS/PROVISIONS MADE TOWARDS TH E DEFERRED SALES TAX EQUALIZATION LIABILITY OF L & T LTD. 3. THE LEARNED CIT (A) FAILED TO APPRECIATE THAT THE PAYEE, LARSEN & TOURBO LTD. HAD ALREADY PAID THE TAXES ON THE ABOVE AMO UNT AND HENCE, THE DEPT. WAS NOT JUSTIFIED IN RECOVERING THE T AX AGAIN FROM THE APPELLANT COMPANY AS A PAYER, 4. THE LD CIT(A) FAILED TO APPRECIATE THAT NO INTERE ST UNDER SECTION 201(1A) WAS CHARGEABLE SINCE LARSEN & TOURBO LTD HAD AL READY PAID 3 THE TAX ON THE SAID AMOUNT EVEN BEFORE THE DUE DATE FO R DEDUCTION OF TAX FOR THE APPELLANT COMPANY. 5. AS THE GROUNDS OF APPEAL REVEAL, THE SUBSTANTIVE G RIEVANCE OF THE ASSESSEE IS AGAINST THE ACTION OF THE LOWER AUTHORITIES IN TREATING IT AS AN ASSESSEE IN DEFAULT UNDER SECTIONS 201(1) AND 201(1A) OF THE ACT FOR HAVING FAILED TO DEDUCT THE TDS UNDER SECTION 194A OF THE A CT. 6. THE BRIEF FACTS LEADING UP TO THE PRESENT DISPUTE CAN BE APPRECIATED AS FOLLOWS. A SURVEY ACTION UNDER SECTION 133A OF THE ACT W AS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 26.9.2005 IN THE COURSE OF WHICH CERTAIN DISCREPANCIES WERE NOTICED. IT WAS NOTICED THAT M/S LARSEN & TOUBRO LTD. (IN SHORT LT) WAS ENTITLED UNDER THE SICOM SCHEME TO DEF ER THE PAYMENT OF SALES TAX COLLECTED FROM ITS CUSTOMERS TO THE TUNE OF RS 215.89 CRORES AND THE LIABILITY TO PAY SUCH SUM WAS TO BE DISCHARGED BY LT TO THE SALES-TA X AUTHORITIES AFTER A PERIOD OF 10 YEARS IN FIVE EQUAL INSTALMENTS. IN OTHER WORDS, LT WAS ENTITLED TO THE BENEFIT OF DEFERRAL OF THE SALES-TAX COLLECTION. SUBSEQ UENTLY, LT ENTERED INTO AGREEMENTS DATED 31.3.2000, 19.6.2000, 30.9.2000, 31 .3.2001, 29.9.2001 AND 31.12.2001 WITH M/S LARSEN & TOUBRO FINANCE LTD. (IN SH ORT LTF) IN TERMS OF SUCH AGREEMENTS, LTF ASSUMED THE LIABILITY OF LT TO DISCHA RGE IN FUTURE THE SALES-TAX LIABILITY OF LT AGGREGATING TO RS 215.89 CRO RES FOR CONSIDERATION PAID BY LT UNDER THE RESPECTIVE AGREEMENTS. IN TERMS OF SUCH A GREEMENTS, LTF ALSO AGREED TO DISCHARGE THE SALES-TAX LIABILITY OF LT BY P AYING DIRECTLY TO THE RESPECTIVE STATE GOVERNMENT AUTHORITIES, THE SALES-TAX D EFERRED AMOUNT AS AND WHEN IT WOULD FALL DUE FOR PAYMENT. THEREAFTER, A TRIPARTITE AGREEMENT DATED 30.3.2002 WAS ENTERED BETWEEN LT, LTF AND THE APPELL ANT-COMPANY WHEREBY SUCH LIABILITY WAS ASSIGNED TO THE APPELLANT COMPANY. IN TERMS OF THE SAID AGREEMENT, APPELLANT RECEIVED A SUM OF RS 85,99,03,73 6/-, BEING THE AGREED NET PRESENT VALUE (NPV) OF THE SAID SALES-TAX DEFERRAL AMO UNT OF RS 215.89 CRORES. IN RETURN, APPELLANT ASSUMED THE OBLIGATION TO DISCHAR GE THE SALES-TAX LIABILITY OF LT OVER THE YEARS FROM 2002 TO 2017. IT MAY FURTHER BE NOTICED THAT VIDE A 4 SUBSEQUENT AGREEMENT DATED 1.9.2005, THE EARLIER AGRE EMENT DATED 30.3.2002 WAS TERMINATED AND THE APPELLANT-COMPANY REPAID LT TH E ENTIRE SUM OF RS 85,99,03,736/- TOGETHER WITH THE INTEREST COMPONENT O F RS 40.89 CRORES ON 2.9.2005. 7. IN THIS FACTUAL BACKGROUND, THE ASSESSING OFFICER NOTICE D THAT LT ALONE WAS STATUTORILY LIABLE FOR DISCHARGING THE PAYMENT OF R S 215.89 CRORES UNDER THE DEFERRAL PAYMENT SCHEME TO THE SALES-TAX AUTHORITIES. T HE ASSESSING OFFICER FURTHER NOTICED THAT IN THE PROFIT & LOSS ACCOUNT SUBMIT TED ALONG WITH THE RESPECTIVE RETURNS OF INCOME, THE APPELLANT HAD DEBITED THE FOLLOWING AMOUNTS, WHICH REPRESENTED INTEREST COMPONENT UNDER THE HEAD IN TEREST PAYABLE TO LT.:- F.Y 2001-02 RS 5,55,149/- F.Y 2002-03 RS 10,75,57,361/- F.Y 2003-04 RS 11,82,13,683/- F.Y 2004-05 RS 12,66,14,233/- RS 35,29,40,426/- F.Y 2005-06 RS 5,59,64,578/- ( RETURN OF INCOME NOT YET DUE) (PAID ON 02.09.2005) ------------------------ RS 40,89,05,004/- ============== AS PER THE ASSESSING OFFICER, SUCH AMOUNTS WERE OF THE NA TURE OF INTEREST AND THEREFORE, ASSESSEE WAS LIABLE TO DEDUCT THE REQUISITE TA X AT SOURCE AS PER SECTION 194A OF THE ACT. ON BEING SHOW-CAUSED, THE ASSESSEE COMPANY REPLIED TO THE ASSESSING OFFICER STATING THAT THE IMPUGNED AMOUN T WAS NOT IN THE NATURE OF INTEREST LIABLE FOR DEDUCTION OF TAX UNDER SECTION 194A OF THE ACT, AS IT WAS IN THE NATURE OF A PREMIUM OR DISCOUNT. AS PER THE ASSESSE E, THE IMPORT OF THE TRIPARTITE AGREEMENT BETWEEN LT, LTF AND ASSESSEE DATED 30.3.2002 WAS THAT ASSESSEE RECEIVED A FINANCE OF RS 85.99 CRORES, BEING THE DI SCOUNTED VALUE OF RS 215.89 CRORES AS ON 30.3.2002. THE ASSESSEE WAS TO PAY LT A SUM OF RS 129.90 CRORES AS WELL AS THE AMOUNT OF RS 85.99 CRORES, TH E TOTAL AMOUNT PAYABLE BEING RS 215.89 CRORES. THE ASSESSEE EXPLAINED THAT THE AFORESAID SUM OF RS 129.90 CRORES APPROXIMATELY MAY EITHER BE TREATE D AS PREMIUM OR DISCOUNT, DEPENDING UPON WHETHER THE BASE IS THE AMOUNT OF LOAN RECEIVED AT RS 85.99 CRORES OR THE AMOUNT PAYABLE AT RS 215.89 CRORES OVER A PERIOD OF TIME. THE 5 ASSESSEE ASSERTED BEFORE THE ASSESSING OFFICER THAT THE AFORE SAID SUM OF RS 129.90 CRORES HAS BEEN BROUGHT TO TAX IN THE HANDS OF L T. THEREFORE, THERE WAS NO REQUIREMENT TO DEDUCT THE TAX AT SOURCE. A REFERENC E WAS MADE TO EXPLANATION TO SECTION 191 OF THE ACT THAT IF SUCH TAX HAS NOT BEEN PAID BY THE ASSESSEE- PAYEE DIRECT, ONLY THEN THE TAX DEDUCTOR SHALL BE DEEM ED TO BE AN ASSESSEE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1) OF THE A CT. THE PLEA OF THE ASSESSEE WAS THAT IF THE TAX HAS ALREADY BEEN PAID BY THE PAY EE IN RESPECT OF AN AMOUNT PAYABLE BY THE ASSESSEE PAYER, THEN ASSESSEE CANNOT BE DE EMED TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE ACT. 8. THE ASSESSING OFFICER CONSIDERED THE SUBMISSIONS OF THE ASS ESSEE AND NOTICED THAT SUCH AMOUNT TOTALING TO RS 129.90 CRORES WA S NOT OFFERED FOR TAX BY LT IN ITS RESPECTIVE RETURNS OF INCOME FOR THE FINANCIA L YEARS 1999-2000 TO 2001- 02, BUT THE SAID AMOUNT HAS BEEN BROUGHT TO TAX WHILE FINALIZING THE ASSESSMENTS UNDER SECTION 143(3) OF THE ACT, AND FURTHER THAT THE ASSESSMENTS FOR THE SAID YEARS WERE A SUBJECT MATTER OF APPEAL. THE ASSESSING OFFIC ER REJECTED THE CONTENTION OF THE ASSESSEE AND TREATED IT AS AN ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE ACT FOR NOT HAVING DEDUCTED TAX AT SOUR CE UNDER SECTION 194A OF THE ACT AND IT WAS ALSO HELD LIABLE TO PAY INTEREST UNDER SECTION 201(1A) OF THE ACT FOR THE DELAY IN DEDUCTION OF TAX AT SOURCE. THE FOLLOWIN G DISCUSSION IN THE ASSESSMENT ORDER IS WORTHY OF NOTICE: THE ASSESSEE COMPANY HAS FAILED TO DEDUCT TAX AT S OURCE U/S 194A OF THE I.T. ACT, 1961 ON THE SUM OF RS 35.30 CRORES PAID TO L & T LTD., D URING THE ASSESSMENT YEARS 2002-03 TO 2005-06 NOR HAS THE ASSESSEE COMPANY ADDUCED ANY EVIDENCE THAT THE PAYEE COMPANY HAS OFFERED FOR TAXATION THE SAID AMOUNT OF RS 35.30 CRORES IN THE RESPECTIVE YEARS AND HENCE THE ASSESSEE COMPANY IS DEEMED TO B E IN DEFAULT N TERMS OF SECTION 201(1) AND IS ALSO LIABLE TO PAY INTEREST AT THE PR ESCRIBED RATES U/S 201(1A). FURTHER IN RESPECT OF THE SUM OF RS 5.59 CRORES PAID BY THE AS SESSEE COMPANY TO L & T LTD. ON 2.9.2005, NO TDS HAS ALSO BEEN MADE AND FOR THE SAM E REASONS THE ASSESSEE COMPANY IS TREATED IN DEFAULT U/S 201(1) AND IS LIABLE TO P AY INTEREST U/S 201(1A). 9. IN APPEAL, THE COMMISSIONER OF INCOME-TAX (APPEALS) CONCURRED WITH THE VIEW OF THE ASSESSING OFFICER AND UPHELD THE ORDERS OF T HE ASSESSING OFFICER. AGGRIEVED BY THE SAME, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 6 10. BEFORE US, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE HAS PRIMARILY REITERATED THE STAND AND THE SUBMISSIONS PUT-FORTH BEFOR E THE LOWER AUTHORITIES. FIRSTLY, IT IS POINTED OUT THAT THE IMPUGNED AMOUNT O F RS 129.90 CRORES APPROXIMATELY IS LIABLE TO BE TREATED AS A DISCOUNT OR PREMIUM, AND THAT THERE IS NO REQUIREMENT OF DEDUCTING TAX AT SOURCE UNDER CHAPT ER XVII OF THE ACT IN RESPECT OF SUCH SUM. IT IS SUBMITTED THAT PROVISIONS OF SECTI ON 194A OF THE ACT ARE NOT APPLICABLE IN RESPECT OF A DISCOUNT OR PREMIUM. APA RT FROM THE AFORESAID, ANOTHER ASPECT WHICH HAS BEEN VEHEMENTLY ARGUED IS THAT THE ASSESSEE WAS UNDER NO OBLIGATION TO DEDUCT TAX AT SOURCE IN RESPECT O F THE IMPUGNED SUM AS THE SAME HAD ALREADY BEEN BROUGHT TO TAX FOR THE ASSE SSMENT YEARS 2000-01 TO 2002-03 IN THE HANDS OF LT AND THE TAX IN RESPECT THER EOF HAD BEEN RECOVERED BY ADJUSTMENT AGAINST THE EXCESS TDS IN THE CASE OF THE PAYEE , I.E. LT. IN THIS REGARD, A REFERENCE WAS MADE TO THE RELEVANT ASSESSMENT ORDERS OF LT, COPIES OF WHICH HAVE BEEN PLACED IN THE PAPER BOOK AT PAGES 56 T O 78 AS ALSO THE RELEVANT BALANCE SHEETS OF LT, COPIES PLACED AT PAGES 42 TO 55 OF THE PAPER BOOK. IT IS CONTENDED THAT WHEN THE PAYEE HAD PAID THE TAXES, THE RE IS NO QUESTION OF FURTHER RECOVERY OF AMOUNT OF TDS OR INTEREST FROM THE DEDUCT OR. 11. FURTHER, IT IS POINTED OUT THAT LT HAS PAID THE T AXES ON THE ABOVE INCOME IN THE EARLIER ASSESSMENT YEARS, I.E. AY 2000-01 TO 2002-0 3 AS IT IS IN THOSE YEARS, LT HAD ENTERED INTO AGREEMENTS WITH LTF TO ASSIGN ITS SA LES-TAX LIABILITIES AND HENCE, THE QUESTION OF TAXING ANY INCOME IN THE HANDS OF LT AROSE ONLY IN SUCH YEARS AND NOT IN THE LATTER YEARS. ON THIS BASIS, IT IS S OUGHT TO BE POINTED OUT THAT THOUGH THE PAYMENTS ARE TO BE MADE BY THE ASSESSEE OVE R THE LATTER YEARS, THE INCOME IN THE HANDS OF LT ON ACCOUNT OF ASSIGNMENT OF LIA BILITY AROSE IN THE YEARS WHEN AGREEMENTS WERE MADE WITH LTF. IT IS POINTED OU T THAT THE LIMITED ISSUE IS AS TO WHETHER THE PAYEE HAS PAID THE TAXES AND IT IS N OT NECESSARY THAT IN THE HANDS OF THE PAYEE, THE YEAR OF TAXABILITY SHOULD BE THE SAME AS THE YEAR OF DEDUCTIBILITY OF THE EXPENDITURE IN THE HANDS OF PAYE R OF SUCH INCOME. IN SUPPORT OF THE SUBMISSION AT IF THE TAXES HAS BEEN PAID BY THE PAYEE, THE QUESTION OF 7 RECOVERING THE AMOUNT OF TDS FROM THE PAYER WOULD NO T ARISE, FOLLOWING DECISIONS HAVE BEEN RELIED UPON: (I) HINDUSTAN COCA COLA BEVERAGE P. LTD. V CIT 293 I TR 226 (SC); (II) MAHINDRA & MAHINDRA LTD. 313 ITR 263 (MUM)(AT )(SB); (III) MERCHANT SHIPPING SERVICES (P) LTD. 135 TTJ 589 ( MUM); AND, (IV) VODAFONE ESSAR LTD. 135 TJ 385 (MUM) FURTHER, A REFERENCE WAS ALSO INVITED TO PAGE 146 OF THE PAPER BOOK WHEREIN IS PLACED A LETTER DATED 30.1.2006 ISSUED BY LT CONFIRMING THAT THE TAXES ON ASSIGNMENT OF SALES-TAX LIABILITY HAVE ALREADY BEEN RECO VERED BY THE DEPARTMENT. IT IS, THEREFORE, CONTENDED THAT THE TAXES HAVING BEE N RECOVERED FROM THE PAYEE, THERE WAS NO JUSTIFICATION TO TREAT THE ASSESSEE IN DEFA ULT FOR THE PURPOSES OF TDS UNDER SECTION 201(1) OF THE ACT. 12. EVEN WITH REGARD TO THE LIABILITY TO PAY INTERE ST UNDER SECTION 201(1A) OF THE ACT, IT IS CONTENDED THAT THE TAXES DUE ON SUCH INCO ME HAVE BEEN RECOVERED BY THE DEPARTMENT EVEN BEFORE THE DUE DATE OF DEPOSI TING OF TDS, THEREFORE, THE CHARGEABILITY OF INTEREST UNDER SECTION 201(1A) ALSO DO ES NOT ARISE AND IN SUPPORT RELIANCE WAS PLACED ON FOLLOWING DECISIONS: (I) BABCOCK POWER (OVERSEAS PROJECTS) LTD. V. ACIT 81 IT D 29 (DEL); (II) CIT V. SOCCER INTERNATIONAL 287 ITR 354 (P&H); AND, (III) M S CHAHAL V ITO 3 SOT 561 (ASR.) 13. LASTLY, IT HAS ALSO BEEN SUBMITTED THAT IT IS A CASE WHERE THE ASSESSEE WAS UNDER A BONA FIDE IMPRESSION THAT NO TDS WAS LIABLE TO BE DEDUCTED INASMUCH AS THE PAYMENT TO LT WAS NOT A SIMPLE PAYMENT OF THE PRI NCIPLE AND INTEREST THEREON. IT WAS A CASE OF TAKING OVER THE LIABILITY OF LT TOWARDS THE SALES-TAX LIABILITY AND IN FACT THE ASSESSEE WAS MADE AVAILABLE AN OPINION OF M/S C C CHOKSI & CO. CHARTERED ACCOUNTANTS, TO THE EFFECT THAT NO TAX WAS DEDUCTIBLE ON THIS PAYMENT. THE LEARNED COUNSEL POINTED OUT THAT A COPY OF SUCH OPINION OBTAINED BY LTF WAS MADE AVAILABLE TO THE ASSESSEE, WHICH IS PLACED AT PAGE 148 OF THE PAPER BOOK AND ON THIS BASIS, ASSESSEE WAS UNDER A BONA FIDE IMPRESSION THAT NO TAX WAS LIABLE TO BE DEDUCTED AT SOU RCE. IT IS CONTENDED THAT IT 8 IS A CASE OF A BONA FIDE MISTAKE AND, THEREFORE, THE AM OUNT OF TDS WAS NOT RECOVERABLE FROM THE ASSESSEE AND IN SUPPORT THE FOLLOWIN G DECISIONS WERE RELIED UPON: (I) SU RAJ DIAMONDS (INDIA) LTD. V. ITO (81 ITD 2 12 (MUM); (II) CIT V. M K VAIDYA 224 ITR 186 (KAR); (III) SECRETARY, MUNICIPAL COMMITTEE, SIRSA V. ITO 97 TTJ 959 (CHD.); AND, (IV) NISHITH M DESAI V. ITO 9 SOT 42 (MUM) 14. IN THE AFORESAID MANNER, IT IS CONTENDED THAT SINCE L&T HAD PAID THE TAXES ON THE IMPUGNED INCOME, THE LIABILITY IN THE HANDS OF THE ASSESSEE PAYEE IN TERMS OF SECTION 201(1) OR 201(1A) OF THE ACT DO NOT SU RVIVE IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD. (SUPRA). 15. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE, APPEARING FOR THE REVENUE HAS SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW BY POINTING OUT THAT THE ASSESSEE HAS BEEN RIGHTLY HELD LIABLE FOR DUES I N TERMS OF SECTION 201(1) AND 201(1A) OF THE ACT. EVEN WITH REGARD TO THE PLEA OF THE ASSESSEE THAT THE TAXES ON SUCH INCOME HAVE BEEN DULY PAID BY THE PAYEE, I.E. LT, IT IS SUBMITTED THAT THE ONUS WAS ON THE ASSESSEE TO DEMONSTRATE THAT THE PAYEE HAS PAID THE TAXES AND IN THIS CONNECTION, RELIANCE HAS BEEN PLACED O N THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF TRANSMISSION CORPO RATION OF A.P. LTD & ANR. V. CIT 239 587 (SC) 16. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. TH E PRIMARY CONTROVERSY IN THE CAPTIONED APPEALS RELATES TO THE STAND OF THE REVENUE THAT THE APPELLANT COMPANY IS AN ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE ACT AND IS ALSO LIABLE TO PAY INTEREST UNDER SECTION 201( 1A) OF THE ACT IN RELATION TO ITS FAILURE TO DEDUCT TAX AT SOURCE UNDER SECTION 194 A OF THE ACT. THE CONTENTION OF THE REVENUE IS THAT THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURCE UNDER SECTION 194A OF THE ACT ON THE AMOUNTS OF RS 35.30 CRORES PAID TO LT 9 DURING THE ASSESSMENT YEARS 2002-03 TO 2005-06 AND ALSO IN RESPECT OF RS 5.59 CRORES PAID TO LT ON 2.9.2005 CORRESPONDING TO THE ASSESSM ENT YEAR 2006-07. FOR THE SAME REASONS, THE ASSESSEE IS ALSO HELD LIABLE F OR PAYMENT OF INTEREST UNDER SECTION 201(1A) OF THE ACT. 17. SECTION 201(1) OF THE ACT ENVISAGES THAT WHERE AN A SSESSEE DOES NOT DEDUCT OR DOES NOT PAY AFTER SO DEDUCTING FAILS TO PAY T HE WHOLE OR ANY PART OF THE TAX AS REQUIRED UNDER THE ACT, THEN SUCH AN ASSESSEE SHALL BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF SUCH TAX. FURTHER, IN TE RMS OF SECTION 201(1A) OF THE ACT, AN ASSESSEE IS LIABLE TO PAY SIMPLE INTEREST IF T HE ASSESSEE DOES NOT DEDUCT THE WHOLE OR ANY PART OF THE TAX OR AFTER DED UCTING FAILS TO PAY THE TAX AS REQUIRED BY OR UNDER THE ACT. IN THE PRESENT CASE, AS PER THE REVENUE THE ASSESSEE WAS REQUIRED TO DEDUCT TAX IN TERMS OF SECTION 194 A OF THE ACT. AS PER SECTION 194A, AN ASSESSEE WHO IS RESPONSIBLE FOR PAYING TO A RESIDENT ANY INCOME BY WAY OF INTEREST OTHER THAN INTEREST ON SECURI TIES, SHALL DEDUCT INCOME- TAX THEREON AT THE PRESCRIBED RATES AT THE TIME OF P AYMENT OR AT THE TIME OF CREDIT OF SUCH INCOME TO THE ACCOUNT OF THE PAYEE, WHICHEVER IS EARLIER. THE ASSESSING OFFICER AND THEREAFTER, THE COMMISSIONER OF INCOME0TAX (APPEALS) HAVE HELD THAT ON THE SUM OF RS 40.89 CRORES PAID BY ASSESSEE TO LT DURING THE CAPTIONED FINANCIAL YEARS, ASSESSEE HAD DEFAULTED IN NOT DEDUCTING THE TAX AT SOURCE AS REQUIRED UNDER SECTION 194A OF THE ACT. THE APPELLANT HAS ARGUED BEFORE US THAT THE PAYMENT IN QUESTION WAS NOT IN THE NATURE OF INTE REST INCOME SO AS TO BE LIABLE FOR DEDUCTION OF TAX AT SOURCE UNDER SECTION 1 94A OF THE ACT. THE PLEA THAT HAS BEEN SET UP IS THAT SUCH A PAYMENT IS IN THE NATURE O F A PREMIUM OR DISCOUNT AND NOT IN THE NATURE OF INTEREST AS ENVISAGED UNDER SE CTION 194A OF THE ACT. IT HAS BEEN POINTED OUT THAT EVEN THE INCOME BY WAY OF DISCOUNTING OF BILLS HAS NOT BEEN TREATED AS IN THE NATURE OF INTEREST INCOME IN TH E CASE OF ABC INTERNATIONAL INC.RE V. AAR 241 CTR 289. THEREFORE, INVOKING OF SECTION 194A OF THE ACT ITSELF HAS BEEN CHALLENGED. 10 18. SO, HOWEVER, A PRELIMINARY POINT HAS BEEN RAISED TO NEGATE THE DEMANDS RAISED UNDER SECTION 201(1) AND 201(1A) OF THE ACT BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA CO LA BEVERAGE P. LTD (SUPRA) AS ALSO THE CBDT CIRCULAR NO 275/201/95-IT(B) D ATED 29.1.1997. THE HONBLE SUPREME COURT APPRECIATED THE CIRCULAR DATED 29.1.197 (SUPRA) TO THE EFFECT THAT NO DEMAND VISUALIZED UNDER SECTION 201(1) O F THE ACT IS LIABLE TO BE ENFORCED AFTER THE TAX DEDUCTOR SATISFIES THE ASSESSING OF FICER THAT TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE ASSESSEE. THE ASSESSEE HAS A SSERTED ALL ALONG THAT NOTWITHSTANDING THAT IT WAS BEING HELD TO BE AN ASSESSEE IN DEFAULT, THERE COULD BE NO RECOVERY OF TAX ALLEGED TO BE IN DEFAULT ONCE AGAIN FROM THE APPELLANT CONSIDERING THAT LT HAD ALREADY PAID TAXES ON THE INCO ME STATED TO HAVE BEEN RECEIVED FROM THE APPELLANT. HAVING REGARD TO THE PA RITY OF REASONING LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD., (SUPRA) AND AS DECLARED BY THE CBDT IN ITS CIRCULA R DATED 29.1.1997 (SUPRA), THE AFORESAID ASSERTION BY THE ASSESSEE IS REQUIRED TO BE E VALUATED. OSTENSIBLY, IF THE ASSESSEE SUCCEEDS IN DEMONSTRATING THAT THE DEDUCTEE ASSESS EE, I.E. LT HAS PAID TAXES DUE ON THE IMPUGNED INCOME, NO LIABILITY CO NTEMPLATED BY SECTION 201(1) OF THE ACT CAN BE FASTENED ON THE ASSESSEE. QUITE CLEARLY ON THE BASIS OF THE MATERIAL ON RECORD, IT IS EVIDENT THAT THE PAYEE , I.E. LT HAS BEEN ASSESSED ON SUCH INCOME AND THAT TAXES THEREON HAVE ALSO BEEN RECOVE RED. IN FACT IN THE COURSE OF THE HEARING, WHEN THE LEARNED DEPARTMENTAL REPRESENTATIVE ATTEMPTED TO SAY THAT THE SAID POSITION WAS NOT EMERGING FROM RECO RD, THE LEARNED COUNSEL VEHEMENTLY REFERRED TO THE POSITION ADMITTED BY THE REVENUE IN THE COURSE OF THE EARLIER PROCEEDINGS BEFORE THE TRIBUNAL IN THIS REGARD . IN FACT, THE LEARNED COUNSEL REFERRED TO AN ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX-I, PUNE DATED 9.11.2006 ON THE APPLICATION OF THE ASSESSEE FOR STAY OF DEMAND, COPY OF WHICH IS ON RECORD. THE LEARNED COUNSEL POINTED OUT TH AT THE ASSESSEE ASSERTED BEFORE THE COMMISSIONER EVEN AT THAT POINT OF TIME TH AT LT HAS PAID THE TAXES DUE ON THE IMPUGNED SUM OF INCOME AND THE SAME HAS ALRE ADY BEEN RECOVERED 11 AND, THEREFORE, ASSESSEE SHOULD NOT BE AGAIN ASKED TO DE POSIT REQUISITE TDS AMOUNT ON THE IMPUGNED SUCH SUM OF RS 40.89 CRORES. IN T HIS CONNECTION, FOLLOWING OBSERVATIONS OF THE COMMISSIONER HAVE BEEN PO INTED OUT:- 2. I HAVE CAREFULLY GONE THROUGH THE ARGUMENTS AND I AM NOT SATISFIED THAT IT IS A FIT CASE FOR STAY OF DEMAND. IT IS AN UNDISPUTED FACT THAT T HE ASSESSEE HAS PAID INTEREST OF RS 40.89 CRORE BUT DID NOT DEDUCT TAX AT SOURCE. THIS INCOME SHOULD HAVE BEEN OFFERED UP FOR TAX BY M/S LARSON & TUBRO IN THE RETURN OF INCO ME. HOWEVER, M/S LARSON & TUBRO HAS CLAIMED IT AS CAPITAL RECEIPT. THERE IS NO DOUBT, T HE AO AT MUMBAI WHILE ASSESSING M/S LARSON & TUBRO HAS BROUGHT THIS AMOUNT TO TAX IN TH E HANDS OF M/S LARSON & TUBRO AND THE ISSUE IS PRESENTLY IN APPEAL. THERE IS A DIFFER ENCE BETWEEN PAYING THE TAX ON THIS AMOUNT OF INTEREST BY M/S LARSON & TUBRO AND COLLEC TING TAX FROM M/S LARSON & TUBRO BY MAKING THE ADDITION. IN TERMS THEREOF, IT IS SOUGHT TO BE POINTED OUT THAT THERE IS NO DENIAL TO THE FACT THAT TAX ON THE IMPUGNED SUM HAS BEEN RECOVERED BY THE ASSESSING OFFICER OF LT. SECONDLY, IT IS ALSO SOUGHT TO BE POINTED OUT WITH REFERENCE TO THE ASSESSMENT ORDERS OF LT FOR THE ASSESSMENT YEARS 2000-01, 2001-02 A ND 2002-03 THAT SUCH INCOME HAS BEEN ASSESSED TO TAX. APART THEREFROM, IT HA S ALSO BEEN CONTENDED THAT THOUGH LT CLAIMED SUCH AMOUNT AS A CAPITAL RECEIPT NOT LIABLE TO TAX IN ITS RETURNS OF INCOME FOR THE ASSESSMENT YEARS 2000-01 AND 2 001-02, HOWEVER, THE REFUND OF TAX AS DETERMINED BY LT IN ITS RETURN OF IN COME MERELY GOT REDUCED ONCE SUCH AMOUNT WAS HELD AS LIABLE TO TAX BY THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS. PERTINENTLY, THE ASSESSMENT ORDERS OF LT FOR THE ASSESSMENT YEAR 2000-01 AND 2001-02, COPIES OF WHICH ARE P LACED AT PAGES 56- 71, SHOW THAT SUMS OF RS 51,60,87,976/- AND RS 50,17,98, 460/- RESPECTIVELY ON ACCOUNT OF GAIN IN EXTINGUISHMENT OF DEBT HAVING BEEN ASSESSED TO TAX AND REFUNDS DETERMINED THEREAFTER. 19. WE HAVE ALSO PERUSED THE LETTER OF CONFIRMATION D ATED 30.1.2006 ISSUED BY LT IN THIS REGARD, WHICH IS PLACED IN THE PAPER BOOK AT PAGES 146 TO 147. THE CLAIM SET-UP BY THE ASSESSEE IS THAT THOUGH LT HAS CLAIME D SUCH INCOME AS NON- TAXABLE IN THE RETURNS OF INCOME FILED, YET IT HAD PA ID REQUISITE TAXES, WHICH WERE ENOUGH TO COVER THE DEMAND ARISING ON ACCOUNT OF SUCH AMOUNTS BEING TREATED AS TAXABLE IN THE SUBSEQUENT ASSESSMENT PROCEEDINGS. THE REFORE, TAX ON SUCH 12 INCOME IS SAID TO HAVE BEEN RECOVERED MUCH IN ADVANCE B EFORE THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE. 20. IN THIS CONNECTION, THE PLEA OF THE REVENUE IS TWO -FOLD. FIRSTLY, THE PLEA IS THAT THE TAXES ON THE IMPUGNED INCOME ARE CLAIMED TO H AVE BEEN PAID BY LT IN ASSESSMENT YEAR 2000-01 TO 2001-02 ITSELF, WHEREAS IN TH IS CASE THE CASE SET-UP BY THE ASSESSING OFFICER IS THAT THE ASSESSEE WAS LIABLE TO D EDUCT TAX AT SOURCE DURING THE ASSESSMENT YEARS 2002-03 TO 2006-07 (I.E. COR RESPONDING TO FINANCIAL YEARS 2001-02 TO 2005-06). SECONDLY, IT IS CLAIMED THA T ASSESSMENT OF INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY THE ASSESSING OF FICER DOES NOT TANTAMOUNT TO PAYMENT OF TAXES BY THE DEDUCTEE ASSESSEE A S ENVISAGED IN CBDT CIRCULAR DATED 29.1.1997 (SUPRA). IN OUR CONSIDERED OPINION, THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE CAME INTO THE PICTU RE ONLY IN TERMS OF THE TRIPARTITE AGREEMENT DATED 30.3.2002 WITH LT AND LT F, THEREFORE, IT WAS ONLY IN THE CAPTIONED ASSESSMENT YEARS THE ASSESSEE WOULD HAVE AN O CCASION TO CONSIDER THE APPLICABILITY OF TDS PROVISIONS CONTAINED IN CHAPTER XVII. IT IS ALSO NOT DISPUTED THAT LT HAD INITIALLY ASSIGNED THE SALES-TA X LIABILITY TO LTF IN THE EARLIER YEARS AND IT IS IN THOSE YEARS LT ACCOUNTED FOR THE TRANSACTION WHICH HAS BEEN THE SUBJECT MATTER OF ASSESSMENT IN THE ASSESSMENT YEA RS 2000-01 TO 2002-03. THE ARRANGEMENT HAS THEREAFTER BEEN ASSIGNED BY LTF TO THE ASSESSEE ONLY ON 30.3.2002, IN TERMS OF A TRIPARTITE AGR EEMENT BETWEEN THE ASSESSEE, LT AND LTF. THEREFORE, IT IS ONLY IN THE CAPTI ONED ASSESSMENT YEARS THE ASSESSEE PROVIDED FOR ITS LIABILITY OF RS 40.89 CROR ES, WHICH AS PER THE REVENUE WAS LIABLE FOR DEDUCTION OF TAX AT SOURCE. WE F IND NOTHING TO DISPUTE THE ASSERTION OF THE ASSESSEE THAT THE CORRESPONDING INCOME I N THE HANDS OF LT HAS BEEN ASSESSED DURING THE ASSESSMENT YEARS 200-01 TO 2002-0 3. THUS EVEN THOUGH THE CAPTIONED AMOUNTS ARE BEING EXAMINED VIS-A-V IS TDS PROVISIONS IN THE HANDS OF THE ASSESSEE DURING THE CAPTIONED YEARS, HO WEVER, THE ASSESSMENT THEREOF AND RECOVERY OF TAXES FROM THE PAYEE, I.E. LT IN EARLIER YEARS WOULD NOT ALTER THE APPLICATION OF THE PROPOSITION CONTAINED IN CIRCULAR DATED 29.1.1997 13 (SUPRA) AS UPHELD IN THE CASE OF HINDUSTAN COCA COLA BEVE RAGE P. LTD. (SUPRA). THE OTHER PLEA OF THE REVENUE THAT ASSESSMENT OF INCOM E BY THE ASSESSING OFFICER AND RECOVERY THEREFROM IS NOT EQUIVALENT TO PAYMENT OF TAXES BY THE DEDUCTEE ASSESSEE AS ENVISAGED IN CBDT CIRCULAR DT. 29.1.19 97 (SUPRA), IN OUR VIEW, IS UNTENABLE. THE MOOT QUESTION IS AS TO WHETH ER THE TAX CORRESPONDING TO THE IMPUGNED INCOME HAS BEEN RECOVERED BY THE REVENUE FROM THE DEDUCTEE ASSESSEE OR NOT? IN THIS CONNECTION, THE ASSESSMENTS OF LT FOR ASSESSMENT YEARS 2000-01 AND 2001-02 FINALISED ON 31.3.2003 AND 23.3.2004 RESPECTIVELY BRING OUT AMOUNTS OF RS 51,60,87,976/- AND RS 50,17,98 ,460/- RESPECTIVELY HAS BEEN ASSESSED ON ACCOUNT OF EXTINGUISHMENT OF DEBT AND R EFUND DETERMINED THEREAFTER. QUITE CLEARLY, THE AFORESAID ASSESSMENTS WER E FURNISHED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER ALSO TO SUBSTANTIATE ITS PLEA THAT THE TAXES RELEVNT TO THE IMPUGNED SUMS HAVE BEEN RECOVERED IN TH E ASSESSMENTS OF THE PAYEE, I.E. LT. SIMILARLY THE CONFIRMATION LETTER D ATED 30.1.2006 ISSUED BY LT, A COPY OF WHICH IS IN THE PAPER BOOK WAS ALSO BEFORE THE LO WER AUTHORITIES ESTABLISHING THE STAND OF THE ASSESSEE. IN VIEW OF THE A FORESAID, IN OUR VIEW, HAVING REGARD TO THE JUDGMENT OF THE HONBLE SUPREM E COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD. (SUPRA) AS ALSO CB DT CIRCULAR DATED 29.1.2007, ONCE TAXES ON THE SUBJECTED SUMS HAVE BEEN R ECOVERED FROM THE PAYEE ASSESSEE, THEREAFTER ASSESSEE CANNOT BE TREATED AS AN ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE ACT FOR NON-DEDUCT ION OF TAX AT SOURCE ON SUCH AMOUNT. IN SO FAR AS THE LIABILITY TO PAY INTEREST UND ER SECTION 201(1A) OF THE ACT FOR ANY DELAY IN DEDUCTION AND SUBSEQUENT DEPOSIT OF T AX IS CONCERNED, IN THIS CASE THE TAX IS DEEMED TO HAVE BEEN PAID ON THE DATE W HEN THE RELEVANT ASSESSMENTS HAVE BEEN FINALISED. CONSIDERING THIS ASPECT, THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CHARGEABILITY OF INTEREST, IF ANY, IN TERMS OF SECTION 201(1A) OF THE ACT. ON THIS LIMITED ASPECT, THE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DEALT WITH AFRESH IN ACCORDA NCE WITH LAW AFTER ALLOWING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN THE MATTER. 14 21. WE MAY CLARIFY HERE THAT SINCE THE AFORESAID ISSUE G OES TO THE ROOT OF THE MATTER, THE OTHER ASPECT OF THE DISPUTE AS TO WHETHER A T ALL ASSESSEE IS LIABLE TO DEDUCT TAX AT SOURCE ON SUCH PAYMENT WITHIN THE MEANIN G OF SECTION 194A OF THE ACT IS NOT BEING ADJUDICATED AND THE SAID ISSUE IS LEFT OP EN AT THE PRESENT. 22. IN THE RESULT, ALL THE CAPTIONED APPEALS ARE ALLO WED. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF NOVEMBER, 2011. SD/- SD/- (I.C. SUDHIR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 30 TH NOVEMBER, 2011 B COPY TO:- 1) THE ASSESSEE 2) ITO, TDS-2, PUNE 3) THE CIT-(A)-I, PUNE 4) THE CIT, TDS PUNE 5) THE D R, B BENCH, ITAT, PUNE 6) GUARD FILE BY ORDER TRUE COPY ASST. REGISTRAR, I.T.A.T., PUNE