THE DY DIT (I.T) 1(1), V. M/S. AIR INDIA LATD AS AGENT OF M/S. CARIBJET INC,

ITA 106/MUM/2005

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4287 (ITAT-MUMBAI)
• Duration Of Justice: 11 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: L
• Next Hearing Date: 16-05-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 05-01-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JASBIR CHA UHAN
• Section: 234B; 144

Judgement Text

ITA NO.106/MUM/05 ASSESSMENT YEAR: 2001 - 0 2 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI L BENCH, MUMBAI [CORAM : PRAMOD KUMAR AM AND PAWAN SINGH JM] ITA NO. 106 /MUM/0 5 AS SESSMENT Y EAR : 20 01 - 02 DEPUTY DIRECTOR OF INCOME TAX ( INTERNATIONAL TAXATION) 1 (1) , MUMBAI .. ....... .APPELLANT VS. AIR INDIA LIMITED - AS AN AGENT OF CARBIJET INC ... RESPONDENT AIR INDIA BUILDING, NARIMAN POINT MUMBAI 400 021 [PAN: AAACA9213E] APPEARANCES BY: JASBIR CHAUHAN , FOR THE A PPELLANT JITENDRA SANGHVI , F OR THE RE SPONDENT DATE OF CONCLUDING THE H EARING : JANUARY 06 , 201 6 DATE OF PRONOUNCING THE ORDER : APRIL 5 TH , 201 6 O R D E R PER PRAMOD KUMAR AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 15 TH OCTOBER 2004 PASSED BY THE CIT(A) I N THE MATTER OF ASSESSMENT UNDER SECTION 144 R.W.S. 147 AND 163 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR THE ASSESSMENT YEAR 2001 - 2 . 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN NOT UPHOLDING THE ADDITION IN RESPECT OF QUANTUM AWARD, WITHOUT ASCERTAINING WHETHER THE POSITION FOR A.Y. 2000 - 01 HAS BECOME FINAL. ITA NO.106/MUM/05 ASSESSMENT YEAR: 2001 - 0 2 PAGE 2 OF 3 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS NOT LIABLE TO PAY INTEREST U/S.234B ON GROUNDS OF ITS INCOME SUBJECT TO TAX DEDUCTION AT SOURCE IN IGNORANCE OF EXPLANATION 1 BELOW SECTION 234B AS AMENDED BY FINANCE ACT, 2001 WITH RETROSPECTI VE EFFECT FROM 01.04.1989. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEARNED COUNSEL FOR THE ASSESSEE FAIRLY AC CEPTED THAT SO FAR AS THE CORE ISSUE, ON MERITS, IS COVERED, IT IS COVERED AGAINST THE ASSESSEE, BY DECISION OF A COORDINATE BENCH OF THIS TRIBUNAL, IN THE CASE OF CARBIJET INC VS DCIT [(2005) 4 SOT 18 (MUM)] . THE SHORT ISSUE THAT WE HAVE TO, THEREFORE, DE CIDE IS WHETHER OR NOT THE LEARNED CIT(A) WAS JUSTIFIED IN HOLDING THAT THE ASSESSMENT COULD NOT BE FRAMED ON THE ASSE SSEE, AS AN AGENT, WHEN THE NON - RESIDENT IS ALSO ASSESSED TO TAX IN RESPECT OF THE SAME. 4. AS REGARDS THE FIRST POINT RAISED IN THE APPE AL, WE FIND THAT, VIDE OUR ORDER OF EVENT DATE, WE HAVE UPHELD THE TAXABILITY OF INCOME IN QUESTION IN THE ASSESSMENT YEAR 2000 - 01. AS A MATTER OF FACT, THE ASSESSEE HAD NOT EVEN DISPUTED THE YEAR OF TAXABILITY BEFORE US. IN THIS VIEW OF THE MATTER, NO INT ERFERE IS REALLY CALLED FOR. 5 . AS FOR THE SECOND ISSUE, LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE ISSUE IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY HON BLE JURISDICTIONAL HIGH COURT S JUDGMENT IN THE CASE OF DIT VS NGC NETWORK ASIA LLC [(2009) 313 ITR 187 (BOM)]. RESPECTFULLY FOLLOWING THE ESTEEMED VIEWS OF HON BLE JURISDICTIONAL HIGH COURT, WE UPHOLD THE CONCLUSIONS ARRIVED AT BY LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. ITA NO.106/MUM/05 ASSESSMENT YEAR: 2001 - 0 2 PAGE 3 OF 3 6. I N THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 5 TH DAY OF APRIL, 2016 . SD/ - S D / - PAWAN SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 5 TH DAY OF APRIL , 2016 . PBN/* COP IES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI B ENCHES, MUMBAI