CENTRUM BROKING P.LTD, MUMBAI V. CI (A) 14, MUMBAI

ITA 158/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2235 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2015
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Section: 143(3); 194C; 201(1)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI R.C . SHARMA, A M AND SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO. 158/MUM/2015 ( / ASSESSMENT YEAR: 2008 - 09 ) M/S. CENTRUM BROKING PVT. LTD. CENTRUM HOUSE, 2 ND FLOO R, C.S.T. ROAD, VIDYANAGARI MARG, KALINA, SANTACRUZ (E), M UMBAI - 400 098 . / VS. DCIT (TDS) - 1(1), MUMBAI . ./ ./ PAN/GIR NO. AABCA 1498E ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI SURENDRA NIJSURE / RESPONDENT BY : SHRI NEIL PHILIP / DATE OF HEARING : 19 /07 /2016 / DATE OF PRONOUNCEMENT : 27/07/2016 / O R D E R PER R.C. SHARMA , A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECT ED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 14 , MU MB AI (CIT(A) FOR SHORT) DATED 10.10 . 2014 FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 , IN THE MATTER ORDER PASSED U/S 201(1)/201(1A) OF THE I.T. ACT,1961 ON THE FOLLOWING GROUNDS: - 1. THE L EARNED CIT(A) ERRED IN LAW BY NOT GIVING US AN ADEQUATE OPPORTUNITY, BEFORE PASSING THE ORDER AND IN THE CIRCUMSTANCES HER ORDER IS BAD IN LAW AND SHOULD BE QUASHED. 2 ITA NO. 158 / M UM/2015 (A.Y. 208 - 09 ) M/S CENTRUM BROKING PVT. LTD. VS. DY. CIT 2. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING US AS ASSESSEE IN DEFAULT FOR NOT DED UCTING TDS ON PAYMENT MADE TO BSE AND NSE TOWARDS LEASE LINE AND VSAT CHARGES AMOUNTING TO RS.10,45,240/ - IGNORING VARIOUS COURT DECISIONS PLACED BEFORE HER, WHEREIN IT WAS HELD THAT THERE IS NO REQUIREMENT TO DEDUCT TDS ON SUCH PAYMENTS. 3. THE CIT(A ) OMITTE D TO DEAL WITH GROUND NO.2 OF OUR APPEAL WHEREIN IT WAS PRAYED THAT AS DCIT HAS WRONGFULLY ASSUMED THE JURISDICTION WHEN FOR THE SAME FINANCIAL YEAR THE ORDER U/S 201(1)/201(1A) DATED 28.3.2011 WAS ALSO PASSED BY ITO (TDS)1(2), MUMBAI AND HENCE THE ORDER O F DCIT IS BAD IN LAW AND SHOULD BE QUASHED. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED . IN THE COURSE OF SCRUTINY OF ASSESSMENT U/S 143(3) THE AO DISALLOWED ASSESSEE S CLAIM FOR VSAT AND LEASE LINE CHARGES PAID TO BSE/NSE INVOKING PROVISION S OF SECTION 40(A)(IA), TREATING THE SAME AS FEE FOR TECHNICAL SERVICES S INCE THE ASSESSEE DID NOT DEDUCT TAX AT SOURCE U/S 194C AND 194J AO HELD THE ASSESSEE IN DEFAULT U/S 201(1) & 201(1A) OF I.T. ACT. 3. AT THE OUT SET LD . AR PLACED ON RECORD ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR THE AY 2008 - 09 DATED 28.02.2015 WHEREIN DISALLOWANCE SO MADE BY AO U/S 40(A)(IA) HAS BEEN DELETED BY TRIBUNAL AFTER OBSERVING AS UNDER : AT THE TIME OF HEARING, THE LD. AR SUBMITTED THAT THIS ISSUE HAS BEEN DECIDED IN F AVOUR OF THE ASSESSEE BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF THE CIT VS. M/S THE STOCK AND BOND TRADING COMPANY (ITA NO.4117 OF 2010 DATED 14.10.2011). A PERUSAL OF THE SAID ORDER SHOWS THAT THE HIGH COURT HAS FOLLOWED ITS EARLIER DECISION RENDERE D IN THE CASE OF 3 ITA NO. 158 / M UM/2015 (A.Y. 208 - 09 ) M/S CENTRUM BROKING PVT. LTD. VS. DY. CIT THE INCOME TAX COMMISSIONER, MUMBAI CITY - 4 VS. ANGEL CAPITAL & DEBIT MARKET LTD IN INCOME TAX APPEAL(L) NO.475 OF 2011 DATED 28 - 07 - 2011 TO HOLD THAT THE THERE IS NO REQUIREMENT TO DEDUCT TAX AT SOURCE FROM THE PAYMENTS MADE TO NSE/BSE TOW ARDS VSAT CHARGES AND LEASE LINE CHARGES. THE LD. AR SUBMITTED THAT IN THE CASE OF KOTAK SECURITIES LTD, THE BOMBAY HIGH COURT DID NOT CONSIDER VSAT AND LEASE - LINE CHARGES ISSUE. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) ON THIS ISSUE AND DIRECT TH E AO TO DELETE THIS ADDITION. 4 . SINCE THE DISALLOWANCE SO MADE BY AO ITSELF HAS BEEN DELETED BY TRIBUNAL , THERE IS NO REASON FOR HOLDING THE ASSESSEE IN DEFAULT U/S 201(1)/201(1A). ACCORDINGLY WE DO NOT FIND ANY MERIT IN THE ORDER PASSED BY AO HOLDING T HE ASSE SSEE IN DEFAULT FOR NON DEDUCTION OF TAX IN RESPECT OF VSAT AND LEASE LINE CHARGES . 5. IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON 27 JULY , 201 6 SD/ - SD/ - ( SANDEEP GOSAIN ) ( R.C. SHARMA) / JUD I C I AL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 27 . 0 7 .201 6 PS. ASHWINI 4 ITA NO. 158 / M UM/2015 (A.Y. 208 - 09 ) M/S CENTRUM BROKING PVT. LTD. VS. DY. CIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I.