DCIT, CHENNAI V. KAL COMM Pvt. Ltd., CHENNAI

ITA 1029/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96217 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 06-10-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 06-05-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . ! '# , $ %& BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ./ ITA NO. 1029/MDS/2015 / ASSESSMENT YEAR : 2011-12 THE DEPUTY COMMISSIONER OF INCOME-TAX, CORPORATE CIRCLE-4(2), CHENNAI. APPELLANT) V. M/S. KAL COMM PVT. LTD., MURASOLI MARAN TOWERS, NO.73, MRC NAGAR MAIN ROAD, MRC NAGAR, CHENNAI 600 028. PAN AABCK3906B RESPONDENT) / APPELLANT BY : SHRI A.V.SREEKANTH, JCIT / RESPONDENT BY : SHRI N. DEVANATHAN, ADVOCATE ! / DATE OF HEARING : 06.10.2015 '# ! / DATE OF PRONOUNCEMENT: 09.10.2015 ' / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) DATED 2. 3.2015. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - - ITA 1029/15 2 2.1 THE LEARNED CIT(A) ERRED IN DELETING THE DISALLOWANCE MADE BY THE AO U/S.199 IN VIEW OF 1 ST AND 2 ND PROVISO TO THE TUNE OF ` 2,62,70,314/- ON CLAIM FOR TDS CREDIT. 2.2 THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT CREDIT FOR TAX DEDUCTED AT SOURCE CAN BE GIVEN ONLY TO THE EXTENT OF PROPORTIONATE INCOME OFFERED FOR ASSESSMENT. 2.3 HAVING REGARD TO THE HONBLE HIGH COURTS DECISIONS IN THE CASE OF CIT V. PUSHPA VIJAY & ANR. (KER) 67 DTR 354 (2012) WHEREIN IT IS HELD THAT CRE DIT FOR TDS CAN BE GIVEN ONLY WHERE TAX IS DEDUCTED ON THE INCOME WHICH IS OFFERED FOR ASSESSMENT, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ACTION OF THE AO IN DISALLOWING THE ASSESSEES CLAIM ON CREDIT FOR TDS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FIRM FILED ITS RETURN OF INCOME ON 29.9.2011 DECLARING TOTAL I NCOME OF ` 18,43,99,980/- FOR ASSESSMENT YEAR 2011-12. THE AO COMPLETED THE ASSESSMENT U/S.143(3) DETERMINING TOT AL INCOME AT ` 18,54,99,980/- BY DISALLOWING ` 2,62,70,314/- OF TDS CLAIMED BY THE ASSESSEE RELATING TO SUBSCRIPTION C HARGES COLLECTED ON BEHALF OF M/S.TV NET WORK AND DEMANDIN G ` 1,98,10,730/-. AGGRIEVED, THE ASSESSEE WENT IN APP EAL BEFORE THE COMMISSIONER OF INCOME-TAX(APPEALS), WHO FOLLOW ING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.884/MDS/2011 DATED 21.10.2013 FOR THE ASSESSMENT YEAR - - ITA 1029/15 3 2006-07, ALLOWED THE GROUND OF APPEAL. AGAINST THI S, THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN OUR OPINION, THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBU NAL IN ASSESSEES OWN CASE IN ITA NO.126/MDS/2015 FOR THE ASSESSMENT YEAR 2010-11, WHEREIN IT WAS HELD AS UND ER : 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE MAIN CONTENTION OF THE ASSESSEES CO UNSEL IS THAT THE ASSESSEE REMITTED THE ENTIRE SUBSCRIPTION INCOME TO M/S. SUN TV AND THERE IS NO ELEMENT OF INCOME IN TH E HANDS OF THE ASSESSEE FROM SUBSCRIPTION RECEIVED FROM OTH ER PARTIES ON BEHALF OF M/S. SUN TV AND THE ASSESSEE R ECEIVED ONLY COMMISSION FROM IT. TO EXAMINE THE SAME, THE B ENCH CALLED FOR PROFIT AND LOSS ACCOUNT AND LEGER ACCOUN TS TO KNOW, HOW THE SUBSCRIPTION RECEIVED WAS ACCOUNTED I N ASSESSEES BOOK. THE ASSESSEES COUNSEL FILED ONLY FINANCIAL STATEMENT AND NOT FILED LEDGER ACCOUNTS OF SUBSCRIP TION RECEIVED ACCOUNT. 6. HENCE, WE ARE NOT IN A POSITION TO EXPRESS ANY O PINION WHETHER THE ASSESSEE IS HAVING ANY ELEMENT OF INCOM E FROM SUBSCRIPTION CHARGES RECEIVED FROM VARIOUS PARTIES. THEREFORE, IF THE ENTIRE SUBSCRIPTION RECEIVED BY T HE ASSESSEE IS TRANSFERRED TO M/S. SUN TV AND THE ASSE SSEE IS ENTITLED ONLY FOR COMMISSION ON SUBSCRIPTION INCOME , THEN THE TRIBUNALS DECISION RELIED BY THE ASSESSEES CO UNSEL IS APPLICABLE. ACCORDINGLY, WE ARE REMITTING THE ENTIR E ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSID ER THE ISSUE AFRESH IN THE LIGHT OF THE ABOVE OBSERVATION. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TH E TRIBUNAL, - - ITA 1029/15 4 WE ARE REMITTING THE ENTIRE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION IN THE LIGHT OF THE ABOVE OBSERVATION. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY, THE 9 TH OF OCT., 2015 AT CHENNAI. SD/- SD/- ( . $ % ) ( & ' ( ) ) *+,-./01023 45067.082290.:3 ; $< /JUDICIAL MEMBER ! $<=>>2-6?06?@ABCA. &; /CHENNAI, D$ /DATED, THE 9 TH OCT., 2015. MPO* $E FGHG /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. I3 /CIT(A) 4. I /CIT 5. GJ% K /DR 6. %LM /GF.