DCIT, Circle - 59, Kolkata, Kolkata V. M/s. Tata Communications Ltd.(earlier M/s. Videsh Sanchar Nigam Ltd.), Kolkata

ITA 1811/KOL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7222 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Department
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 21-09-2010
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRAVARTY
• Assessee Lawyers: H V BHARADWAJ
• Section: 201(1)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA [ () . .. . , ,, , , ! . .. .'# '#'# '#. .. . , , , , $% ] ]] ] [BEFORE SRI N.VIJAYAKUMARAN, JM & SRI C. D. RA O, AM] !' / I.T.A NO. 1811/KOL/20 10 () *+/ ASSESSMENT YEAR : 2003-04 D.C.I.T., CIRCLE-59, - - M/S.TATA COMMUNICATIONS LTD. KOLKATA -VERSUS- (EARLIER M/S.VIDESH SANCHAR NI GAM LTD.(PAN:AAACV 2808 C) (-. / APPELLANT ) ( /0-. /RESPONDENT) -. 1 2 $/ FOR THE APPELLANT: SHRI P.K.CHAKRAVARTY /0-. 1 2 $/ FOR THE RESPONDENT: SHRI H.V.BHARADWAJ 3 1 #% /DATE OF HEARING : 15.09.2011. 4* 1 #% /DATE OF PRONOUNCEMENT : $5 / ORDER ( (( ( . .. .'# '#'# '#. .. . ) )) ), , , , $% PER SHRI C.D.RAO, AM THE ABOVE APPEAL IS FILED BY THE REVENUE AGAINST O RDER DATED 28.06.2010 OF THE CIT(A)-CENTRAL-XXXVI, KOLKATA PERTAINING TO A.Y R. 2003-04. 2. THERE IS A DELAY OF 3 DAYS IN FILING OF TH E APPEAL BY THE REVENUE FOR WHICH THE REVENUE HAS FILED A CONDONATION PETITION EXPLAINING THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE REVENUE THE DELA Y IS CONDONED. 3. IN THIS APPEAL THE REVENUE HAS RAISED THE GROUND IN RESPECT OF DELETION OF PENALTY LEVIED BY AO U/S 271C OF THE IT ACT. 4. AT THE OUTSET THE LD. COUNSEL APPEARING ON BEHA LF OF ASSESSEE SUBMITTED THAT THIS TRIBUNAL IN ASSESSEES CASE IN THE SUBSEQUENT ASSE SSMENT YEAR VIDE ITA NO.1138/KOL/2010 DATED 25.02.2011 HAS DELETED THE P ENALTY U/S 271C OF THE IT ACT BY 2 OBSERVING THAT ASSESSEE IS HAVING A REASONABLE CAUS E FOR NON-DEDUCTION OF TDS. THEREFORE, HE REQUESTED TO UPHELD THE ACTION OF LD. CIT(A). 5. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHA LF OF THE REVENUE COULD NOT CONTRADICT THE ABOVE SUBMISSIONS OF THE LD. COUNSEL FOR ASSESSEE. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT IN ASSESSE ES OWN CASE IN ITA NO.1138/KOL/2010 FOR A.YR.2004-05 DATED 25.02.2011 THIS TRIBUNAL HAS DELETED THE PENALTY U/S 271C OF THE IT ACT BY OBSERVING AS UNDE R :- 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAR EFUL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT THE LD. CI T(A) HAS DELETED THE PENALTY BY OBSERVING THAT IN THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFFICER DATED 31.03.2008, SINCE THE ASSESSEES DEMAND RAISED BY T HE ASSESSING OFFICER ON ACCOUNT OF DEFAULT SURVIVING U/S 201(1) HAS BEEN DELETED, THE PENALTY PROCEEDINGS BECOME INFRUCTUOUS AS HELD BY VARIOUS JUDICIAL PRONOUNCEME NTS. IT IS FURTHER OBSERVED THAT IN OUR CONSIDERED OPINION THE ASSESSEE HAD A REASONABL E CAUSE FOR NON-DEDUCTION OF TDS. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER O F LD.CIT(A) AND THE SAME IS DISMISSED. THIS VIEW OF OURS FURTHER FORTIFY THE DECISION OF T HE HONBLE APEX COURT IN THE CASE OF CIT VS BHARTI CELLULAR LTD. 330 ITR 239. THE HONBL E APEX COURT HAS OBSERVED THAT DEPARTMENT IS NOT ENTITLED TO LEVY INTEREST UNDER S.201(1A) OR IMPOSE PENALTY FOR NON-DEDUCTION OF TDS ON THE FACTS AND CIRCUMSTANCES OF THE CASE FOR THE REASONS THAT THERE IS NO LOSS OF REVENUE AS TAX HAS BEEN PAID BY THE RECIPIENT AND THE MOOT QUESTION INVOLVED IN THE CASE IS YET TO BE DECIDED. KEEPING IN VIEW OF THE ABOVE WE DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 14.10.2011. SD/- SD/- . .. . , , , , ( ( ( ( N.VIJAYAKUMARAN, JUDICIAL MEMBER . .. .'# '#'# '#. .. . , ,, , $% $% $% $% , C.D.RAO, ACCOUNTANT MEMBER. ( (( (#% #% #% #%) )) ) DATE: 14.10.2011. R.G.(.P.S.) 3 $5 1 /(( 6$*7- COPY OF THE ORDER FORWARDED TO: 1. M/S.TATA COMMUNICATIONS LTD. (EARLIER M/S.VIDESH SA NCHAR NIGAM LTD.),1/18, C.I.T.SCHEME-VIIM, ULTADANGA, KOLKATA-54. 2 THE D.C.I.T., CIRCLE-59, KOLKATA 3. THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 0 /(/ TRUE COPY, $5/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES