Boysen India Ltd, Noida V. DCIT, Circle-1, Noida

ITA 1969/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9025 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHOOP SINGH SENIOR
• Keywords: Double taxation relief; Opportunity of being heard; Principle of natural justice; TDS; Set aside
• Section: 234E

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI O.P. KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.1969/DEL./2018 (ASSESSMENT YEAR : 2016-17 (Q3)) BOYSEN INDIA LTD., VS. DCIT, CIRCLE 1, NOIDA DADRI ROAD, P.O. KULESHARA, NOIDA. GREATER NOIDA. (PAN : AAACK7809A) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI BHOOP SINGH, SENIOR DR DATE OF HEARING : 04.08.2021 DATE OF ORDER : 11.08.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, BOYSEN INDIA LIMITED (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 31.01.2018 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-I, NOIDA QUA THE ASSESSMENT YE AR 2016-17 (Q3) ON THE GROUNDS INTER ALIA THAT :- 1. THE LEARNED CIT (APPEALS)-I HAS ERRED IN DISMIS SING THE APPEAL WITHOUT PROVIDING DUE AND REASONABLE OPP ORTUNITY ITA NO.1969/DEL./2018 2 TO THE ASSESSEE OF BEING HEARD AND MADE REPRESENTAT ION. THE ACTION OF THE LEARNED CIT (APPEALS)-I IS ARBITRARY, UNJUSTIFIED AND AGAINST CONCEPT OF NATURAL JUSTICE AND EQUITY A S WELL AS AGAINST THE FACTS OF THE CASE. 2. THE LEARNED CIT (APPEALS)-I HAS ERRED IN CONFIRM ING THE ASSESSMENT ORDER AS PASSED BY THE LEARNED ACIT- 1 LEVYING THE LATE FEE U/S.234E OF THE IT ACT OF RS.21,200/- FOR THE QUARTER ENDED 31.12.2015 WHICH IS AGAINST THE CONCEPT OF NA TURAL JUSTICE AND EQUITY AS WELL AS AGAINST THE FACTS OF THE CASE . 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE COMPANY HAS BEE N FILING INCOME-TAX AND TDS RETURN REGULARLY. DURING THE TH IRD QUARTER ENDING 31.12.2015 I.E. FROM 01.10.2015 TO 31.12.201 5, THE ASSESSEE COMPANY HAS PROVIDED FEE FOR TECHNICAL SERVICES PAY ABLE TO M/S. FRIEDRICH BOYSEN GMBH & CO. KG., GERMANY WHO DID NO T HAVE PERMANENT ACCOUNT NUMBER. ASSESSING OFFICER (AO) N OTICED THAT AS PER FORM NO.15CB OBTAINED FROM ITS STATUTORY AUD ITORS, THE COMPANY WAS REQUIRED TO DEDUCT TAX AT SOURCE AT 10% AS PER PARA 2 OF ARTICLE NO.12-ROYALTIES AND FEES FOR TECHNICAL S ERVICES OF DTAA BETWEEN INDIA & GERMANY. HOWEVER, WHILE UPLOA DING THE TDS RETURN, THE RATE WAS AUTOMATICALLY GOT CHANGED TO 20% INSTEAD OF 10% AS APPLICABLE IN THIS CASE. ASSESSEE COMPAN Y COULD NOT FILE THE RETURN WITHIN STIPULATED TIME. CONSEQUENTLY, C ENTRAL PROCESSING CELL HAS IMPOSED LATE FILING FEE OF RS.2 1,200/- U/S 234E OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). FOR AY 2016-17, ASSESSEE HAS BEEN HELD IN DEFAULT FOR NOT COMPLYING THE PROVISIONS ITA NO.1969/DEL./2018 3 OF TDS AND DETERMINED TAX DEMAND OF RS.39,600/- FOR QUARTER-2 AND RS.21,200/- FOR QUARTER-3. 3. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT ( A) BY WAY OF FILING APPEAL WHO HAS DISMISSED THE APPEAL. FEELIN G AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. S ENIOR DEPARTMENTAL REPRESENTATIVE AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. SENIOR DEPARTMENTAL REPRES ENTATIVE FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOC UMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES B ELOW IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. LD. CIT (A) DECIDED THE APPEAL EX-PARTE AGAINST THE ASSESSEE FOR NON-PROSECUTION WITHOUT GOING INTO THE MERIT ON THE GROUND THAT ON THE DATE FIXED FOR HEARING VIZ. 05.06.2017, 30.0 8.2017, 31.10.2017 & 06.11.2017, NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, PERUSAL OF THE IMPUGNED ORDER PASSED BY TH E LD.CIT (A) APPARENTLY GOES TO PROVE THAT IT IS NOT BROUGHT ON RECORD IF ASSESSEE COMPANY WAS EVER SERVED IN THIS CASE. MERELY FIXIN G UP THE CASE ITA NO.1969/DEL./2018 4 FOR HEARING WITHOUT PROPER SERVICE OF NOTICE IS NOT PERMISSIBLE UNDER LAW. SO, TO DECIDE THE ISSUE ONCE FOR ALL, A DEQUATE OPPORTUNITY OF BEING HEARD IS REQUIRED TO BE GIVEN TO THE ASSESSEE. CONSEQUENTLY, IMPUGNED ORDER PASSED BY THE LD. CIT (A) IS SET ASIDE TO BE DECIDED AFRESH BY THE LD. CIT (A) AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 11 TH DAY OF AUGUST, 2021. SD/- SD/- (O.P. KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 11 TH DAY OF AUGUST, 2021 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-1, NOIDA. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.