Dy. CIT, Pune V. KSB PUMPS LTD, Pune

ITA 1455/PUN/2013

• Counselvise Citation: 145524514 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: V P SHIDHYE
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS.1455 & 1456/PN/2013 (A. YS. : 2009-10 & 2010-11) DY. COMMISSIONER OF INCOME TAX, (TDS)- 2, PUNE. . APPELLANT VS. KSB PUMPS LTD., PUNE MUMBAI ROAD, PIMPRI, PUNE 411 018. PAN : AAACK5918J . RESPONDENT DEPARTMENT BY : MR. P. S. NAIK ASSESSEE BY : MR. V. P. SHIDHYE DATE OF HEARING : 05-08-2014 DATE OF PRONOUNCEMENT : 12-08-2014 ORDER PER G. S. PANNU, AM THE TWO CAPTIONED APPEALS RELATE TO DIFFERENT ASSES SMENT YEARS INVOLVING SAME ASSESSEE AND SINCE THE ISSUE RAISED IS COMMON, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND ARE BEING DISPO SED-OFF BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. BOTH THE APPEALS ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 17.04.2013 WHICH , IN TURN, HAS ARISEN FROM AN ORDER DATED 29.03.2012 PASSED BY THE ASSESS ING OFFICER U/S 201(1) AND 201(1A) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEARS 2009-10 AND 2010-11 RESPECTIVELY. 3. IN BOTH THE APPEALS, THE SOLITARY ISSUE RELATES TO ACTION OF THE ASSESSING OFFICER IN TREATING THE ASSESSEE AS AN ASSESSEE IN DEFAULT WITHIN THE MEANING OF SECTION 201(1) & 201(1A) OF THE ACT FOR NON-DEDU CTION OF TAX AT SOURCE U/S 194H OF THE ACT IN RESPECT OF TURNOVER DISCOUNT ALL OWED TO THE DEALERS. THE ITA NOS.1455 & 1456/PN/2013 A. YS. : 2009-10 & 2010-11 CIT(A) HAS SET-ASIDE THE ACTION OF THE ASSESSING OF FICER BY FOLLOWING THE DECISION OF HIS PREDECESSOR ON SIMILAR ISSUE IN ASS ESSEES OWN CASE FOR ASSESSMENT YEARS 2007-08 AND 2008-09. AGAINST SUCH DECISION OF THE CIT(A), REVENUE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING, IT WAS A COMMON GROUND B ETWEEN THE PARTIES THAT THE DECISION OF THE CIT(A), FOR ASSESSMENT YEA RS 2007-08 AND 2008-09 ON IDENTICAL ISSUE, HAS SINCE BEEN AFFIRMED BY THE TRI BUNAL VIDE ITA NO.2097 & 2098/PN/2012 DATED 27.12.2012, A COPY OF WHICH HAS BEEN PLACED ON RECORD. 5. WE HAVE PERUSED THE PRECEDENT AND FIND THAT THE TRIBUNAL HAS CONSIDERED AN IDENTICAL CONTROVERSY. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE OF PUMPS AND INDUSTRIAL VAL VES. IT WAS NOTICED BY THE ASSESSING OFFICER IN HIS ORDER PASSED U/S 201(1) & 201(1A) OF THE ACT THAT ASSESSEE DID NOT DEDUCT TAX AT SOURCE ON SALES TURN OVER DISCOUNT ALLOWED TO THE DEALERS. THE CIT(A) HAS HELD THAT THERE WAS NO PRINCIPAL AND AGENT RELATIONSHIP AND THAT THE AGREEMENT BETWEEN THE DEA LERS AND THE ASSESSEE WAS ON A PRINCIPAL TO PRINCIPAL BASIS. THEREFORE, ACCORDING TO THE CIT(A), THE DISCOUNT ALLOWED BY THE ASSESSEE TO THE DEALERS WAS NOT IN THE NATURE OF COMMISSION SO AS TO FALL WITHIN THE PURVIEW OF DEDU CTION OF TAX AT SOURCE PRESCRIBED IN SECTION 194H OF THE ACT. THE CIT(A) CAME TO THE AFORESAID CONCLUSION BY FOLLOWING THE DECISION OF HIS PREDECE SSOR IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 2007-08 AND 2008-09. WE ALSO FIND THAT ASSESSEE POINTED OUT BEFORE THE CIT(A) THAT THE FACTS AND CI RCUMSTANCES OF ITS CASE WERE DIFFERENT FROM THOSE CONSIDERED BY THE HONBLE DELH I HIGH COURT IN THE CASE OF M/S IDEA CELLUAR LTD. (ITA NO.145/2009 AND ITA NO.7 84/2009) DATED 19.02.2010; AND, THAT ON THE CONTRARY ITS CASE WAS LIABLE TO BE DECIDED IN THE LIGHT OF THE JUDGEMENT OF THE HONBLE DELHI HIGH CO URT IN THE CASE OF CIT VS. JAI DRINKS (P) LTD., (2011) 10 TAXMANN.COM 115 (DEL ). THE ASSESSEE HAS ALSO POINTED OUT BEFORE THE CIT(A) THAT THE HONBLE DELH I HIGH COURT RENDERED ITS ITA NOS.1455 & 1456/PN/2013 A. YS. : 2009-10 & 2010-11 JUDGEMENT IN THE CASE OF JAI DRINKS (P) LTD. (SUPRA ) AFTER CONSIDERING ITS EARLIER DECISION IN THE CASE OF M/S IDEA CELLUAR LTD. (SUPR A). ACCORDING TO THE ASSESSEE, THE FACTS OF THE CASE WERE SIMILAR TO THE CASE OF JAI DRINKS (P) LTD. (SUPRA) AND NOT TO THAT OF M/S IDEA CELLUAR LTD. (S UPRA). WE FIND THAT SIMILAR POINTS WERE ALSO RAISED IN ASSESSMENT YEARS 2007-08 AND 2008-09 IN THE CASE OF ASSESSEE WHICH HAS SINCE BEEN AFFIRMED BY THE TR IBUNAL VIDE ITS ORDER DATED 27.12.2013 (SUPRA). FOLLOWING THE PRECEDENT AND IN THE ABSENCE OF ANY DECISION TO THE CONTRARY, WE HEREBY AFFIRM THE ORDE R OF THE CIT(A). AS A RESULT, REVENUE FAILS ON THIS ASPECT. 6. RESULTANTLY, THE APPEALS OF THE REVENUE ARE DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH AUGUST, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 12 TH AUGUST, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE