Assistant Commissioner Of Income Tax Circle-1(1), Bengaluru V. M/s Bank Of India , Bengaluru

ITA 1546/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7180 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N PRAKASH
• Keywords: Question of law; TDS; Set aside
• Section: 12A; 201(1); 195

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 1 546 / BANG/201 8 ASSESSMENT YEAR : 2 0 1 3 - 14 THE ASSISTANT COMMISSIONER OF INCOME TAX (TDS), CIRCLE 1 (1), BANGALORE. VS. M/S. BANK OF INDIA, CANTONMENT BRANCH, NO. 49, JYOTHI MAHAL, ST. MARKS ROAD, BANGALORE 560 001. TAN: BLRB00968C APPELLANT RESPONDENT ASSESSEE BY : NONE R EVENUE BY : SHRI T.N. PRAKASH, ADDL. CIT (DR) DATE OF HEARING : 03 .0 4 .2019 DATE OF PRONOUNCEMENT : 10 . 0 4 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-13, BANGALORE PASSED U/S. 201(1) AND 201(1A) OF IT ACT. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1) THE ORDER OF THE LD. CIT(A) IS OPPOSED TO LAW & FACTS OF THE CASE. 2) THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN CANCELLING THE ORDER U/S, 201(1) & 201(1A). 3) THE LD.CIT(A) ERRED IN RELYING ON THE JUDGEMENT OF HON'BLE ITAT, BANGALORE IN THE CASE OF CANARA BANK (1476 TO 1481/BANG/2014) WHEREIN THE HON'BLE ITAT DECIDED THE APPEAL IN FAVOUR OF ASSESSEE BASED ON THE DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CASE OF ITC HOTELS, WITHOUT APPRECIATING THAT THE SUBSTANTIAL QUESTION OF LAW IN THAT CASE PERTAINED TO NON-DEDUCTION OF TDS ON PAYMENT TO NON RESIDENTS U/S. 195 & NOT TO DEDUCTION OF TAX ON PAYMENT TO RESIDENT U/S. 194A. 4) THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE DISTINCTION IN THE TDS ITA NO. 1546/BANG/2018 PAGE 2 OF 3 PROVISIONS BETWEEN SEC.194A & SEC. 195, WHEN SUCH DISTINCTION HAS ALREADY BEEN CONSIDERED BY HON'BLE SUPREME COURT IN THE CASE OF GE TECHNOLOGY (7 TAXMANN.COM18) & THE HON'BLE ITAT, BANGALORE IN THE CASE OF IBM INDIA PVT LTD (59 TAXMANN.COM 107) 5) THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT WITHOUT OBTANING A CERTIFICATE OF NIL DEDUCTION U/S. 197, REGISTRATION U/S 12A DOES NOT ITSELF TAKE THE ASSESSEE OUT OF THE AMBIT OF SECTION 194A. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE PAYEE I.E. KIADB HAD NOT OBTAINED A NIL DEDUCTION CERTIFICATE U/S 197 FOR THE YEAR UNDER CONSIDERATION: FOR THESE AND GROUNDS THAT MAY BE RAISED DURING THE COURSE OF APPEAL AND ACTUAL HEARING, THE APPELLANT PRAYS THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY BE SET ASIDE AND CANCELLED. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE AND WE HAVE CONSIDERED THE SUBMISSIONS OF DR AND ON THE PERUSAL OF THE GROUNDS OF APPEAL, WE FOUND THAT A DEFECT MEMO WAS ISSUED BY THE ITAT REGISTRY ON 28.06.2018 THAT THE REVENUE HAS WRONGLY FILLED UP THE COL. NO. 2 IN FORM 36 AND FORM 35 IS NOT FILED / NOT FILED IN DUPLICATE AND ALSO STATEMENT OF FACTS BEFORE CIT(A) WAS ALSO NOT FILED. INSPITE OF ISSUING DEFECT NOTICE, TILL TODAY NO ACTION HAS BEEN TAKEN BY THE REVENUE TO RECTIFY THE DEFECT AS POINTED OUT BY THE REGISTRY THEREFORE WE ARE OF THE OPINION THAT THE REVENUE IS NOT INTERESTED IN PROSECUTING THE APPEAL BY RECTIFYING THE DEFECT AND ACCORDINGLY CONSIDERING THE CONDUCT OF THE REVENUE IN NOT RECTIFYING THE DEFECTS INSPITE OF ISSUING DEFECT NOTICE IN JUNE 2018 AND WE DISMISS THE GROUNDS OF APPEAL OF THE REVENUE. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (ARUN KUMAR GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 10 TH APRIL, 2019. /MS/ ITA NO. 1546/BANG/2018 PAGE 3 OF 3 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.