DCIT, Circle-17(2), Hyderabad, Hyderabad V. Vijai Electricals Limited, Hyderabad

ITA 1692/HYD/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4615 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 24-02-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 15-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO
• Keywords: TDS
• Section: 143(3); 40(a)(ia); 195; 144C; 113; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO. 1692 /HYD/20 16 (ASSESSMENT YEAR : 2009 - 10 ) DY. COMMISSIONER OF INCOME TAX, CIRCLE 17(2), HYDERABAD. ..APPELLANT. VS. M/S. VIJAY ELECTRICALS LIMITED, 6 - 3 - 648/1 & 2,RAJBHAVAN ROAD, HYDERABAD - 500 082 . .. RESPONDENT. PAN AAACV 7259B ITA NO.1726/HYD/2016 (ASSESSMENT YEAR : 2009 - 10) M/S. VIJAY ELECTRICALS LIMITED, 6 - 3 - 648/1 & 2,RAJBHAVAN ROAD, HYDERABAD - 500 082. ..APPELLANT. VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 17(2), HYDERABAD. ..RESPONDENT. ASSESSEE BY : SHRI S. RAMA RAO. RE VENUE BY : SHRI SUNIL K UMAR PANDEY (D.R.) DATE OF HEARING : 24.02.2021 . DATE OF PRONOUNCEMENT : 11. 05. 2021. 2 ITA NO S . 1692 & 1726/HYD/2016 O R D E R PER S.S. GODARA, J.M. : THESE REVENUES AND ASSESSEE'S CROSS APPEALS FOR ASSESSMENT YEAR 2009 - 10 ARISE AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS) - 5, HYDERABDS ORDER DT .30.09.2016 PASSED IN THE CASE NO .0391/2014 - 15/CIT(A) - 5 INVOLVING PROCEEDINGS U/S. 143(3) R.W.S. 144C OF THE INCOME TAX ACT, 1961 ('THE ACT') . HEARD BOTH PARTIES. CASE FILES PERUSED. 2 . WE COME TO THE REVENUES APPEAL IN ITA NO.1692/HYD/201 6 RAISING THE FOLLOWING SUBSTANTIVE GROUNDS : 1. THE LD. CIT(A) ERRED ON (ACTS AND IN LAW IN HOLDING THAT THE PROVISIONS OF SEC. 195 LW.S. 40(A)(IA) ARE NOT APPLICABLE TO THE (ACTS OF THE CASE ON THE ISSUE OF INTEREST AMOUNTING TO RS.5,63,43,083/ - PAID ON FOREIGN SUPPLIER BILLS WITHOUT MAKING TDS. 2. THE LD. CIT(A) ERRED IN LAW IN IGNORING THE DECISION OF THE H ON'BLE SUPREME COURT IN THE CASE OF VIJAY SHIPPING CORPORATION & OTHERS VS. CIT, AHMEDABAD 314 ITR 309, DECISION OF THE HON'BLE GUJARAT HIGH COURT I THE CASE OF CIT VS. VIJAY SHIP BREAKING CORPORATION 261 ITR 113 AND DECISION OF THE HON'BLE MADRAS 3 ITA NO S . 1692 & 1726/HYD/2016 HIGH COU RT IN THE CASE OF CIT VS. INDIA PISTONS LTD. (MADRAS) 282 ITR 632 WHICH ARE IN FAVOUR OF THE REVENUE ON THE SIMILAR ISSUE. 3. THE LEARNED CLT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE DEPARTMENT IS IN APPEAR BEFORE THE HON'BLE HIGH COURT IN APPELLAN T'S OWN CASE ON IDENTICAL ISSUE FOR THE A.YS 2005 - 06, 2006 - 07 AND 2007 - 08 IN APPEAL NO. 236/HYD./2009, 845/HYD./2009 AND 1462/HYD./2010 DATED 22.07.2011 RESPECTIVELY AND THE DECISION OF THE HON'BLE HIGH COURT IS STILL AWAITED. 3 . IT IS EVIDENT AT THE OUT SET THAT THE REVENUES INSTANT SOLE GRIEVANCE (SUPRA) ALREADY STANDS ADJUDICATED IN ASSESSEE'S FAVOUR IN ASSESSMENT YEARS 2005 - 06 TO 2007 - 08 BEFORE THIS T RIBUNAL. THERE IS NO DISTINCTION ON FACTS AS WELL AS ON LAW FORTHCOMING FROM THE DEPARTMENT SIDE. WE NOTICE FROM THE CIT(APPEALS) DETAILED DISCUSSION THAT EARLIER LEARNED CO - ORDINATE BENCH DECISION ( S ) ALREADY H OLDS THAT SECTION 40(A)(IA) R.W.S 195 DOES NOT APPLY QUA PAYMENT OF INTEREST ON FOREIGN SUPPLIERS BILL. WE THUS ADOPT JUDICIA L CONSISTENCY IN ABSENCE OF ANY DISTINCTION ON FACTS TO AFFIRM THE CIT(APPEALS) IMPUGNED CONCLUSION. THE REVENUES SOLE 4 ITA NO S . 1692 & 1726/HYD/2016 SUBSTANTIVE GRIEVANCE AS WELL AS THE MAIN APPEAL 1632/HYD/201 6 FAILS THERE. 4 . COMING TO THE ASSESSEE'S CROSS APPEAL IN ITA 1726/HYD/2 016 SEEKING TO REVERSE BOTH THE LOWER AUTHORITIES ACTION MAKING ALP ADJUSTMENT OF RS.84,05,758, LEARNED AUTHORISED REPRESENTATIVE R O SE TO HIS SENIORITY AND STATED AT THE BAR THAT THE SAME IS WITHIN 5% TOLERANCE MARGIN U/S. 92C(2) 2 ND PROVISO OF THE ACT AN D THEREFORE , THIS TAXPAYER NO MORE NEEDS TO PRESS FOR THE SAME. ORDERED ACCORDINGLY. 5 . THIS R EVENUES APPEAL IN ITA 1692/HYD/2018 IS DISMISSED AND THE ASSESSEE'S CROSS APPEAL IN ITA 1726/HYD/2018 IS DISMISSED AS NOT PRESSED IN ABOVE TERMS. A C OPY OF TH IS COMMON ORDER BE PLACED IN THE RESPECTIVE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 11TH MAY, 2021. SD/ - SD/ - (LAXMI PRASAD SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DT. 11 .05 .2021. * REDDY GP 5 ITA NO S . 1692 & 1726/HYD/2016 COPY TO : 1. M/S. VIJAY ELECTRICALS LIMITED, 6 - 3 - 648/1 & 2, RAJBHAVAN ROAD, HYDERABAD - 500 082. 2. DCIT, CIRCLE 17(2), HYDERABAD. 3. PR. C I T - 5 , HYDERABAD. 4. CIT(APPEALS) - 5, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE. BY ORDER SR. PVT. SECRETARY, ITAT, HYDERABAD.