SONICWALL TECHNOLOGY SYSTEM INDIA PVT. LTD., MUMBAI V. DCIT 10 (3), MUMBAI

ITA 1807/MUM/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5248 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: WIPRO LIMITED
• Keywords: Principle of natural justice; TDS; Set aside; FORM 26AS
• Section: 271(1)(c); 234B; 143(1); 143(2)

Judgement Text

ITA No.1807/Mum/2019 A.Y. 2011-12 Sonicwall Technology System India Pvt. Ltd. Vs. Dy.CIT-10(3) 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI PRAMOD KUMAR (VICE PRESIDENT) AND MS. SUCHITRA KAMBLE (JUDICIAL MEMBER) ITA No.1807/MUM/2019 (Assessment Year: 2011-12) Sonicwall Technology System India Private Limited, (formerly known as Dell Software India Pvt. Ltd.) (formerly known as QSFT India Pvt. Ld.) Plot No. C-70, G-Block Bandra Kurla Complex Bandra (East) Mumbai – 400 051 Vs. Dy. Commissioner of Income-tax-10(3) Room No. 451, Aayakar Bhavan, New Marine Lines, Mumbai – 400 020 PAN No. AAACQ1441N (Assessee) (Revenue) Assessee by : Shri Manasa Ananthan, A.R Revenue by : Shri Hoshang B. Irani, D.R Date of Hearing : 11/01/2022 Date of pronouncement : 05/04/2022 ORDER PER SUCHITRA KAMBLE, J.M: This appeal is filed by the assessee against the order dated 27.12.2018 passed by the CIT(A)-24, Mumbai, for assessment year 2011-12. The assessee has raised following grounds before us: “1. That the impugned order passed by the Commissioner of Income-tax (Appeals) ("CIT(A)"), to the extent questioned herein, is bad in law and is liable to be set aside. 2. That the Assessing Officer ("AO") erred in law and on facts in treating the amount of Rs. 1,70,56,339/- as having been received from Wipro Ltd on the basis of the Annual Information Report ("AIR") and including the same as the income of the Appellant. The CIT(A) erred in upholding the same. ITA No.1807/Mum/2019 A.Y. 2011-12 Sonicwall Technology System India Pvt. Ltd. Vs. Dy.CIT-10(3) 2 3. That the CIT(A) ought to have appreciated that the AO erred in law and on facts in making an adjustment without indicating the provision under which the alleged service income was being charged to tax. 4. That the AO/CIT(A) erred in law and on facts in disregarding the Appellant's submission that the said amount of Rs.1,70,56,339/- does not pertain to the Appellant and that Wipro Ltd had erroneously mentioned the Permanent Account Number ("PAN") of the Appellant while filing its e-TDS return. 5. That the CIT(A) erred in not considering the revised e-TDS filed by Wipro Ltd, the latest Form 26AS of the Appellant and other evidences demonstrating the erroneous reporting of income against the PAN of the Appellant by Wipro Limited. 6. That as regards the addition of Rs. 15,66,086/- made to the income of the Appellant, the CIT(A) ought to have directed exclusion of service tax and foreign exchange fluctuation from the expenses while applying the mark up on cost. 7. That the AO erred in levying interest under section 234B and 234DoftheAct. 8. That the AO erred in initiating penalty proceedings under section 271(1)(c) of the Act. 9. That the impugned order passed to the extent questioned is otherwise liable to be set aside. Additional Ground “10. That an amount of Rs.73,592/- being education cess paid by the appellant during the year under consideration ought to be allowed as a deduction.” 2. The assessee company is primarily engaged in rendering business support services, trade sales marketing support services and information technology support services to its associate enterprises. For assessment year 2011-12, the assessee filed return of income on 30.11.2009 declaring total income of Rs.81,76,914/-. The total tax liability of the assessee as per the return of income amounted to Rs.26,12,482/- (including surcharge, cess and interest). This amount was discharged by the payment of advance tax of Rs.19,19,000/- and self assessment tax of Rs.7,00,000/- accordingly a refund of Rs.6,518/- was claimed in the return of income. The return of income was processed u/s 143(1) of the Act. Subsequently, the assessee received notices u/s 143(2) calling for certain information/details which were furnished by the assessee during the course of assessment proceedings. The assessing officer passed the assessment order on ITA No.1807/Mum/2019 A.Y. 2011-12 Sonicwall Technology System India Pvt. Ltd. Vs. Dy.CIT-10(3) 3 14.03.2014 thereby re-computing the total income of the assessee at Rs.2,67,99,330/-. 3. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee. 4. The ld. A.R submitted that the revised TDS was submitted by the assessee to the department which is annexed at page 126, 127 and 140 of the compilations filed before the CIT(A) and before us. The ld. A.R submitted that there was an error which was rectified by the assessee and therefore the CIT(A) should have granted the relief to the assessee. As regards foreign exchange fluctuations and exclusion of service tax, the ld. A.R submitted that the same was also not given effect. 5. The ld. D.R relied upon the assessment order and the order of the CIT(A). 6. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the assessee has given a rectified TDS details as the deductor was not aware about the treatment given by the deductee to the TDS and after verifying it has given the details to the CIT(A). Therefore, it will be appropriate to remand back the issue to the limited point of verifying the rectified position of TDS and granting the TDS benefit to the assessee as per the provisions of Income tax law. As regards foreign exchange fluctuations and exclusion of service tax the same also needs to be verified and therefore we are remanding the issue to the file of the assessing officer for appropriate adjudication after taking cognizance of all the relevant material available before him. Needless to say, the assessee be given opportunity of hearing by following the principle of natural justice. The appeal of the assessee is partly allowed for statistical purposes. ITA No.1807/Mum/2019 A.Y. 2011-12 Sonicwall Technology System India Pvt. Ltd. Vs. Dy.CIT-10(3) 4 7. In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 05.04.2022 Sd/- Sd/- (Pramod Kumar) (Suchitra Kamble) Vice President Judicial Member Place: Mumbai Date 05.04.2022 Rohit, Sr. PS आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ / The Appellant 2. ŮȑथŎ / The Respondent. 3. आयकर आयुƅ(अपील) / The CIT(A)- 4. आयकर आयुƅ / CIT 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण DR, ITAT, Mumbai 6. गाडŊ फाईल / Guard file. सȑािपत Ůित //True Copy// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण/ ITAT, Bench, Mumbai.