Cyberstar Infocom Pvt Ltd , Bangalore V. The Deputy Commissioner of Income Tax Circle-1(2), Bangalore

ITA 196/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6968 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 19-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRASHANTH G S
• Keywords: Recovery proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1 96 /BANG/201 8 ASSESSMENT YEAR : 2012 - 13 M/S. CYBERSTAR INFOCOM PVT. LTD., NO. 463, 10 TH MAIN, 13 TH CROSS, WILSON GARDEN, BANGALORE 560 027. PAN: AABCC2931J VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1 (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI PRASHANTH G.S., CA RESPONDENT BY : SHRI R.N. SIDDAPPAJI, ADDL. CIT (DR) DATE OF HEARING : 25 .04.201 9 DATE OF PRONOUNCEMENT : 30 .04.201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LD. CIT (A)-12, BANGALORE DATED 30.11.2017 FOR ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED INCOME-TAX OFFICER HAS ERRED IN PASSING THE ORDER IN THE MANNER PASSED ANDTHE LEARNED CIT (A)-12 HAS ERRED IN CONFIRMING THE SAME. THE IMPUGNED ORDER BEING BADIN LAW AND IS LIABLE TO BE QUASHED. 2.1 THE AUTHORITIES BELOW HAVE ERRED IN NOT APPRECIATING THAT; A) INTEREST U/S. 201(1A) IS COMPENSATORY IN NATURE. B) THE RECIPIENT OF INCOME HAVING FILED LOSS RETURNS NO TAXES WERE PAYABLE TO THEGOVERNMENT. C) NO TAXES BEING PAYABLE TO THE GOVERNMENT, THE QUESTION OF DELAY IN RECOVERY OF TAXESAND INTEREST FOR DELAY DOES NOT ARISE. AND ERRED IN LEVYING /CONFIRMING THE INTEREST U/S 201(1A) OF THE ACT. THE ACTION OFTHE AUTHORITIES BELOW BEING CONTRARY TO FACTS AND CIRCUMSTANCES OF THE CASE AND THELAW APPLICABLE IS TO BE NEGATED. 2.2 THE LEVY OF INTEREST U/S. 201(1A) BEING WITHOUT PROPER APPRECIATION OF LAWS AND CONTRARYTO VARIOUS JUDICIAL PRONOUNCEMENTS ITA NO.196/BANG/2018 PAGE 2 OF 4 IS TO BE DELETED. 3. IN ANY CASE AND WITHOUT PREJUDICE THE CALCULATION OF INTEREST AS DONE IS ERRONEOUS ANDEXCESSIVE. 4. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT ISREQUESTED THAT THE IMPUGNED ORDER BE QUASHED OR AT LEAST INTEREST LEVIED/CONFIRMED U/S.201 (1A) BE DELETED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT SIMILAR ISSUE WAS THERE IN ASSESSEES OWN CASE FOR EARLIER AND LATER ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2011-12 AND 2013-14 TO 2015-16 AND THE SAME WAS DECIDED BY THE TRIBUNAL IN ITA NOS. 156 TO 159/BANG/2018 DATED 10.01.2019. HE SUBMITTED A COPY OF THIS TRIBUNAL ORDER AND POINTED OUT THAT IN THESE YEARS ALSO, SIMILAR TWO ADDITIONAL GROUNDS WERE RAISED BY THE ASSESSEE AND THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF CIT (A) FOR DECIDING THE ISSUE AFTER CONSIDERATION OF THE ADDITIONAL GROUNDS RAISED BEFORE THE TRIBUNAL. PARA 6 OF THE TRIBUNAL ORDER IS RELEVANT IN THIS REGARD. HE SUBMITTED THAT IN THE PRESENT YEAR ALSO, THE ASSESSEE HAS RAISED SIMILAR TWO ADDITIONAL GROUNDS AND THEREFORE, THE MATTER MAY BE RESTORED BACK TO CIT (A) WITH SIMILAR DIRECTIONS. THE LD. DR OF REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE PRESENT YEAR ALSO, THE ASSESSEE HAS RAISED THE FOLLOWING TWO ADDITIONAL GROUNDS. 1. THE AUTHORITIES BELOW OUGHT TO HAVE PROVIDED RELIEF UNDER THE NON- DISCRIMINATION CLAUSE OFARTICLE 26 OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND THE UNITED STATEDOF AMERICA IN ACCORDANCE WITH LAW. 2. THE INTEREST UNDER SECTION 20L(1A) OF THE ACT ON ACCOUNT OF NON- DEDUCTION OF TAX AT SOURCEFOR PAYMENT MADE TOWARDS PURCHASES IS IN VIOLATION OF ARTICLE 26 OF THE DOUBLE TAXATIONAVOIDANCE AGREEMENT BETWEEN INDIA AND THE UNITED STATED OF AMERICA. 5. IN THE EARLIER TRIBUNAL ORDER CITED BEFORE US ALSO, IDENTICAL TWO ADDITIONAL GROUNDS WERE RAISED BY ASSESSEE AND THE SAME WERE ADMITTED BY TRIBUNAL IN THOSE YEARS ON THIS BASIS THAT THESE GROUNDS DO NOT INVOLVE INVESTIGATION OF ANY FACTS OTHERWISE ON THE RECORD OF THE DEPARTMENT AND ARE ALSO PURE QUESTIONS OF LAW, WHICH GOES INTO THE VERY ROOT OF THE MATTER. THE TRIBUNAL ITA NO.196/BANG/2018 PAGE 3 OF 4 FOLLOWED THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT AS REPORTED IN 229 ITR 383 AND THE DECISION OF HON'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF GUNDATHURTHIMMAPPA& SONS VS. CIT AS REPORTED IN 70 ITR 70 AND ADMITTED THE ADDITIONAL GROUNDS. SINCE THE GROUNDS ARE IDENTICAL, WE ADMIT THE ADDITIONAL GROUNDS IN THE PRESENT YEAR ALSO. AFTER ADMITTING THE ADDITIONAL GROUNDS, THE TRIBUNAL HELD THAT THEREFORE, IN THE INTEREST OF JUSTICE, THIS ISSUE IS REMITTED TO THE FILE OF CIT (A) FOR DECIDING THE ISSUE AFTER CONSIDERATION OF THE ADDITIONAL GROUNDS RAISED BEFORE THE TRIBUNAL AND THEREAFTER DECIDE THE ISSUE ON MERITS, IF REQUIRED. FOR READY REFERENCE, WE REPRODUCE PARA 6 OF THE TRIBUNAL ORDER WHICH IS AS UNDER. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN OUR OPINION, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE DO NOT INVOLVE ANY INVESTIGATION OF FACTS, WHICH ARE ALREADY AVAILABLE ON RECORD AND ALSO THESE ARE PURE QUESTIONS OF LAW WHICH GOES INTO THE VERY ROOT OF THE MATTER. THEREFORE, BY PLACING RELIANCE ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (SUPRA) AND THE HON'BLE HIGH COURT OF KARNATAKA JUDGMENT IN THE CASE OF. GUNDATHURTHIMMAPPA& SONS VS. CIT, REPORTED IN 70 ITR 70, WE ARE INCLINED TO ADMIT THE ADDITIONAL GROUNDS AS THE PRAYER OF THE ASSESSEE IS BONA FIDE. ACCORDINGLY, WE ADMIT THE ADDITIONAL GROUNDS. HOWEVER, THE CIT(APPEALS) HAD NO OCCASION TO CONSIDER THESE ADDITIONAL GROUNDS, THEREFORE IN THE INTEREST OF JUSTICE, WE REMIT THIS ISSUE TO THE FILE OF CIT(APPEALS) FOR DECIDING THE ISSUE AFTER CONSIDERATION OF THE SAME AND THEREAFTER DECIDE THE ISSUE ON MERITS, IF REQUIRED. 6. RESPECTFULLY FOLLOWING THE SAME, IN THE PRESENT YEAR ALSO, WE ADMIT THE ADDITIONAL GROUNDS AND RESTORE THE MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION WITH SIMILAR DIRECTIONS. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 30 TH APRIL, 2019. /MS/ ITA NO.196/BANG/2018 PAGE 4 OF 4 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.