DCIT (International Taxation), Dehradun V. M/s. Express Drilling System LLC, Dehradun

ITA 1535/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3798 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 22-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VICHAL MISRA
• Section: 234B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NOS. 1534 & 1535/DEL/2016 A.YRS. : 2010-11 & 2011-12 DCIT, CIRCLE-1, INTERNATIONAL TAXATION, AAYAKAR BHAWAN, 13-A, SUBHASH ROAD, DEHRADUN V S. M/S EXPRESS DRILLING SYSTEM LLC, C/O NANGIA & CO., 3 RD FLOOR, NCR PLAZA, NEW CANTT. ROAD, DEHRADUN (PAN: AABCE6891R) (ASSESSEE) (RESPONDENT) REVENUE BY : NONE ASSESSEE BY : SH. AMIT ARORA, CA & SH. VICHAL MISRA, CA ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THESE APPEALS AGAINST THE RESPECTIVE IMPUGNED ORDERS BOTH DATED 29.01.2016 OF THE LD. CIT(A)-2, NOIDA RELEVANT TO ASSESSMENT YEARS 2010-1 1 & 2011-12 RESPECTIVELY. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND IDENTICAL, HENCE, THE APPEALS WERE 2 HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH I TA NO. 1534/DEL/2016 (AY 2010-11). 2. THE FOLLOWING ARE THE COMMON GROUNDS RAISED IN B OTH THE APPEALS:- (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE ON THE ISSUE OF LEVY OF INTEREST U/S. 234B OF THE INCOME TAX ACT, 1961 WHEN THE DECISION IN THE CAS OF M/S GE PACKAGED POWER INC. HAS NOT YET ATTAINED FINALITY AND THE REVIEW PETITION OF THE DEPARTMENT AGAINST THE DECISION HAS BEEN ADMITTED BY THE HONBLE SUPREME COURT. (II) THE APPELLANT PRAYS FOR LEAVE TO ADD, AMEND, MODIFY OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OR BEFORE THE HEARING OF THE APPEAL. 3 3. THE BRIEF FACTS OF THE CASE ARE THAT A DRAFT AS SESSMENT ORDER U/S. 143(3)/144C(1) OF THE INCOME TAX ACT, 196 1 (HEREINAFTER REFERRED AS THE ACT) FOR THE ASSESSMEN T YEAR 2010- 11 WAS PASSED ON 30.3.2013 AT A TOTAL INCOME OF RS.9,11,62,280/- AS AGAINST TOTAL LOSS OF RS. 4,16,47,7 38/- SHOWN IN THE RETURN OF INCOME. THE ASSESSEE DID NOT FILE OBJECTIONS AGAINST THE DRAFT ORDER BEFORE THE DIS PUTE RESOLUTION PANEL (DRP). THE ASSESSMENT ORDER WAS TH EREAFTER PASSED BY THE AO U/S. 143(3)/144C(3)(B) OF THE ACT. THE AO MADE DISALLOWANCE OF CERTAIN EXPENDITURE SINCE TAX WAS NOT DEDUCTED AT SOURCE THEREON WHILE MAKING PAYMENTS AND CERTAIN OTHER EXPENSES SINCE THE ASSESSEE FAILED TO SUBMIT ANY PROOF. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS ORDER DATED 29.1 .2016 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIE VED WITH THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BE FORE THE TRIBUNAL. 4. NONE APPEARED ON BEHALF OF THE DEPARTMENT. THEREF ORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA REVE NUE, AFTER HEARING THE LD. A.R. OF THE ASSESSEE AND PERUSING THE RECORDS. 4 5. LD. A.R. OF THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS PASSED A WELL REASONED ORDER, WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART AND REQUESTED THAT THE ORDER OF THE LD. CIT(A) MAY BE U PHELD BY DISMISSING THE APPEAL OF THE REVENUE. 6. WE HAVE HEARD LD. A.R. OF THE ASSESSEE AND PERUSED THE RELEVANT RECORDS, ESPECIALLY THE IMPUGNED ORDER. WE FIND THAT THE POSITION OF LAW AS IT STANDS TILL THE YEAR 2011 -12 AS INTERPRETED BY VARIOUS COURTS SUPPORT THE CONTENT ION OF THE ASSESSEE THAT INTEREST ON ADVANCE TAX WAS NOT PAYAB LE. APART FROM THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN T HE CASE OF CIT VS. OIL LIMITED (ITA NO. 56 OF 2007), THE DECISI ON OF HONBLE DELHI HIGH COURT IN THE CASE OF GE PACKAGED POWER INC. (ITA NO. 353/2014) AND CONNECTED MATTERS TS-27-HC- 2015 (DEL) ALSO IS IN FAVOUR OF THE ASSESSEE IN WHICH IT HAS BEEN HELD THAT THE PRIMARY LIABILITY OF DEDUCTING TAX (FOR TH E PERIOD CONCERNED, SINCE THE LAW HAS UNDERGONE A CHANGE AFT ER THE FINANCE ACT, 2012) WAS THAT OF THE PAYER. THE PAYER W OULD BE AN ASSESSEE IN DEFAULT, ON FAILURE TO DISCHARGE THE OBLIGATION TO DEDUCT TAX, UNDER SECTION 201 OF THE ACT AND NO INT EREST WAS LEVIABLE ON THE ASSESSES UNDER SECTION 234B OF THE ACT. THEREFORE, IN OUR CONSIDERED VIEW, THE LD. CIT(A) HA S RIGHTLY ALLOWED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY RES PECTFULLY FOLLOWING THE ABOVE PRECEDENT, WHICH DOES NOT NEED A NY INTERFERENCE ON OUR PART, HENCE, WE UPHOLD THE WELL REASONED ORDER PASSED BY THE LD. CIT(A) ON THE ISSUE IN DISP UTE AND ACCORDINGLY REJECT THE GROUNDS RAISED BY THE REVEN UE. 5 6.1 FOLLOWING THE CONSISTENT VIEW AS TAKEN IN ASSES SMENT YEAR 2010-11, AS AFORESAID, THE SIMILAR GROUND RAISED I N ASSESSMENT YEAR 2011-12 IS ALSO DECIDED IN FAVOUR OF THE ASSES SEE AND AGAINST THE REVENUE. 7 IN THE RESULT, BOTH THE APPEALS FILED BY THE REVE NUE STAND DISMISSED. ORDER PRONOUNCED ON 07/02/2018. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:07/02/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES