ITO-TDS, RAIPUR (CG) V. DIRECTOR GENERAL PF POLICE, RAIPUR (CG)

ITA 204/BIL/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0545 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YACUB TOPPO JCIT TDS
• Assessee Lawyers: G S AGRAWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER ITA NO. 204 / BLPR /2011 & CO NO. 133 / RPR /201 5 / ASSESSMENT YEAR: 2008 - 09 INCOME TAX OFFICER (TDS), RAIPUR VS. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, CIVIL LINES, RAIPUR TAN : JBPG 00556 D ITA NO. 205 / BLPR /2011 & CO NO. 134 / RPR /201 5 / ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER (TDS), RAIPUR VS. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, CIVIL LINES, RAIPUR TAN : JBPG 00556 D / (APPELLANT) / (RESPONDENT /CROSS - OBJECTOR ) REVENUE BY : SHRI YACUB TOPPO, JCIT (TDS) ASSESSEE BY : SHRI G.S. AGRAWAL, AR / DATE OF HEARING : 06 / 10 /2015 / DATE OF PRONOUNCEMENT: 09 / 10 /201 5 / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: ITA NOS. 204/BLPR/2011 AND 205/BLPR/2011 ARE THE APPEALS FILED BY THE REVENUE AND CO NOS. 133/RPR/2015 AND 134/RPR/2015 ARE THE CROSS - OBJECTIONS THEREOF FILED BY THE ASSESSEE AGAINST A COMMON ORDER OF THE CIT(A) , RAIPUR DATED 18 .0 7 .20 11 FOR ASSESSMENT YEARS 200 8 - 0 9 AND 200 9 - 1 0 RESPECTIVELY. ITA NOS. 204 & 205/BLPR/2011 CO 133 & 134/RPR/2015 ITO VS. DIRECTOR GENERAL OF POLICE AY: 2008 - 09, 2009 - 10 2 2. TH E GROUNDS RAISED BY THE REVENUE IN ITS APPEAL FOR ASSESSMENT YEARS 2008 - 09 AND 2009 - 10 READ AS UNDER: - AY: 200 8 - 09 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW THE CIT(APPEAL) ERRED IN DELETING INTEREST U/S 201(1A) OF THE ACT OF RS.4,32,471/ - WITHOUT APPRECIATING THE DECISION OF THE HONBLE SUPREME COURT IN HINDUSTAN COCA COLA PVT. LTD. VS. CIT, 293 ITR 226 (SC) THAT INTEREST ITS CHARGEABLE FROM THE DATE TAX WAS DEDUCTIBLE TO THE DATE OF PAYMENT. AY: 2009 - 10 1. ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW THE CIT(APPEAL) ERRED IN ACCEPTING THE NIL TDS CERTIFICATE ISSUED TO GOVT. OF CHHATTISGARH DIRECTORATE AVIATION, AS APPLICABLE TO THE ASSESSEE, HAVE DELETING THE SHORT DEDUCTION OF RS.63,62,426/ - 2. ON T HE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW THE CIT(APPEAL) ERRED IN DELETING INTEREST U/S 201(1A) OF THE ACT OF RS.4, 48 , 049 / - WITHOUT APPRECIATING THE DECISION OF THE HONBLE SUPREME COURT IN HINDUSTAN COCA COLA PVT. LTD. VS. CIT, 293 ITR 226 (SC) THAT INTEREST IS CHARGEABLE FROM THE DATE TAX WAS DEDUCTIBLE TO THE DATE OF PAYMENT. 3. THE FIRST GROUND OF THE REVENUES APPEAL FOR ASSESSMENT YEAR 2009 - 10 IS WITH REGARD TO ACCEPTANCE OF NIL TDS CERTIFICATE ISSUED B Y THE ASSESSING OFFICER OF M/S. MESCO AIRLINES LIMITED ISSUED TO GOVERNMENT OF CHHATTISGARH. THE FACTS OF THE CASE ARE THAT THE DIRECTOR GENERAL OF POLICE, RAIPUR MADE THE PAYMENT FOR HIRING OF HELICOPTER TO M/S. MESCO AIRLINES LIMITED WITHOUT DEDUCTION OF TAX AT SOURCE. THEREFORE, THE ASSESSING OFFICER HELD THE ASSESSEE IN DEFAULT FOR NON - ITA NOS. 204 & 205/BLPR/2011 CO 133 & 134/RPR/2015 ITO VS. DIRECTOR GENERAL OF POLICE AY: 2008 - 09, 2009 - 10 3 DEDUCTION OF TAX AT SOURCE. ON APPEAL, THE CIT(A) HELD THE ASSESSEE TO BE N OT IN DEFAULT WITH THE FOLLOWING FINDINGS: - I HAVE CONSIDERED THE ARGUMENTS PUT FORTH BY THE LD. COUNSEL, WRITTEN SUBMISSION, PAPER BOOK, REMAND REPORT AND THE ARGUMENTS SUBMITTED BY THE ITO (TDS). THE ITO (TDS) RELIED UPON THE ORDER. I FIND THAT THE TENDER WAS FLOATED BY DIRECTORATE OF AVIATION. THE AGREEMENT HAS BEEN ENTERED INTO BY M/S. MESCO AIRLINES WITH GOVT. OF CHHATTISGARH THROUGH DIRECTOR GENERAL OF POLICE AND DIRECTOR - AVIATION. THUS, DIRECTOR GENERAL OF POLICE AS WELL AS DIRECTOR AVIATION, BOTH THE DEPARTMENTS OF CHHATTISGARH ARE SIGNI NG PARTIES. THE CERTIFICATE U/S 197(1) HAS BEEN ISSUED TO GOVT. OF CHHATTISGARH, DIRECTOR - AVIATION. THE CERTIFICATE PERTAINS TO PAYMENT OF HELICOPTER SERVICES CHARGES TO M/S. MESCO AIRLINES LIMITED, DELHI. I FIND NO REASON NOT TO CONSIDER THE ABOVE CERT IFICATE. FOR THIS REASON ALSO, I FIND THAT THERE WAS NO LIABILITY TO MAKE TDS FROM PAYMENT MADE TO M/S. MESCO AIRLINES LIMITED BY THE APPELLANT FOR A.Y. 2009 - 10. 4. THE REVENUE, BEING AGGRIEVED WITH THE ORDER OF THE CIT(A), IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. THE SOLE CONTENTION OF THE REVENUE IN NOT ACCEPTING THE ABOVE CERTIFICATE ISSUED BY THE ITO(TDS), WARD NO.50(4), AYAKAR BHAVAN, LAXMI NAGAR, DELHI WAS THAT THE CERTIFICATE HAS BEE N ISSUED TO DEDUCT TAX AT NIL TO GOVERNMENT OF CHHATTISGARH AND DIRECTOR - AVIATION AND NOT TO DIRECTOR GENERAL OF POLICE . THE CIT(A) HAS RECORDED THE FINDING THAT THE TENDER FOR HIRING OF HELICOPTER WAS FLOATED BY DIRECTORATE OF AVIATION. THE AGREEMENT HAS BEEN ENTERED INTO BETWEEN M/S. MESCO AIRLINES LIMITED AND GOVERNMENT OF CHHATTISGARH THROUGH DIRECTOR GENERAL OF ITA NOS. 204 & 205/BLPR/2011 CO 133 & 134/RPR/2015 ITO VS. DIRECTOR GENERAL OF POLICE AY: 2008 - 09, 2009 - 10 4 POLICE AND DIRECTOR - AVIATION. THE DIRECTOR GENERAL OF POLICE AS WELL AS DIRECTOR - AVIATION, BOTH ARE SIGNING PARTIES TO THE AGREEMENT WITH M/S. MESCO AIRLINES LIMITED. THEREFORE, THE CERTIFICATE ISSUED TO THE GOVERNMENT OF CHHATTISGARH FOR PAYMENT TO M/S. MESCO AIRLINES LIMITE D WITHOUT DEDUCTION OF TAX WAS SQUARELY APPLICABLE IN RESPECT OF PAYMENT MADE BY DIRECTOR GENERAL OF POLICE ON BEHALF OF GOVERNMENT OF CHHATTISGARH IN RESPECT OF HELICOPTER HIRED BY GOVERNMENT OF CHHATTISGARH. THESE FACTS RECORDED BY THE LE ARNED CIT(A) HAVE NOT BEEN CONTROVERTED BEFORE US. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AND FACTS OF THE CASE, WE ENTIRELY AGREE WITH THE ABOVE FINDING OF THE LEARNED CIT(A). THE HELICOPTER HAS BEEN HIRED BY THE GOVERNMENT OF CHHATTISGARH FO R THE USE OF CHHATTISGARH POLICE. THE PAYMENT MADE BY DIRECTOR GENERAL OF POLICE WAS IN PURSUANCE TO THE AGREEMENT BETWEEN M/S. MESCO AIRLINES LIMITED WITH THE GOVERNMENT OF CHHATTISGARH. THEREFORE, THE CERTIFICATE OF NIL DEDUCTION OF TAX AT SOURCE ISS UED BY THE INCOME - TAX DEPARTMENT TO GOVERNMENT OF CHHATTISGARH WAS CERTAINLY APPLICABLE IN RESPECT OF PAYMENT MADE BY DIRECTOR GENERAL OF POLICE. WE, THEREFORE, DO NOT FIND ANY MERIT IN GROUND NO.1 OF THE REVENUES APPEAL FOR ASSESSMENT YEAR 2009 - 10, WHIC H IS REJECTED. 6. GROUND NO.2 OF THE REVENUES APPEAL FOR ASSESSMENT YEAR 2009 - 10 AND THE ONLY GROUND RAISED IN THE REVENUES APPEAL FOR ASSESSMENT YEAR 2008 - 09 IS WITH REGARD TO DELETION OF INTEREST U/S 201(1A) BY THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. THE CIT(A) DELETED THE INTEREST WITH THE FOLLOWING FINDING: - ITA NOS. 204 & 205/BLPR/2011 CO 133 & 134/RPR/2015 ITO VS. DIRECTOR GENERAL OF POLICE AY: 2008 - 09, 2009 - 10 5 THE PERIOD OF DEFAULT STARTS FROM THE DATE OF DEDUCTIBILITY TILL THE DATE OF ACTUAL PAYMENT OF TAX. THE PAYMENT MADE BY DEDUCTOR OR DEDUCTEE IS TO BE CONSIDERED . IN THIS CASE, FOR A.Y. 2008 - 09, THE ASSESSMENT OF M/S. MESCO AIRLINES LIMITED, THE DEDUCTEE, HAS BEEN MADE AT NIL INCOME BY ACIT, CENTRAL CIRCLE (7), NEW DELHI VIDE ORDER DATED 10.12.2010 (PAN OF DEDUCTEE : AAACM 3539 R). F OR A.Y. 2009 - 10, THE APPELLANT HAS FILED RETURN OF INCOME DECLARING LOSS AT RS.1,34,45,295/ - WITH CLAIM OF REFUND OF RS.74,06,917/ - . THEREFORE, THERE WAS NO LIABILITY TO TAX ON DEDUCTEE AND SO NO INTEREST IS PAYABLE AS NO TAX IS PAYABLE. THUS, FROM THE F ACTS AVAILABLE ON RECORD, THERE IS NO LIABILITY FOR PAYMENT OF INCOME - TAX ON M/S. MESCO AIRLINES LIMITED. CONSIDERING THE FACTS OF THE CASE, ARGUMENTS FROM BOTH THE SIDES, MATERIAL AVAILABLE ON RECORD AND RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, NO INT EREST IS LEVIABLE. 8. THE CIT(A) HAS RECORDED THE FINDING THAT THE ASSESSMENT OF M/S. MESCO AIRLINES LIMITED FOR ASSESSMENT YEAR 2008 - 09 HAS ALREADY BEEN COMPLETED BY ACIT, CENTRAL CIRCLE (7), NEW DELHI AT NIL INCOME. THUS, THERE WAS NO LIABILITY OF THE PAYMENT OF TAX BY M/S. MESCO AIRLINES LIMITED . F OR ASSESSMENT YEAR 2009 - 10 , M/S. MESCO AIRLINES LIMITED HAD FILED THE RETURN DECLARING LOSS OF RS.1,34,45,295/ - WITH A CLAIM OF REFUND OF RS.74,06,917/ - . THUS FOR THIS YEAR ALSO TAX PAID BY M/S. MESCO AIRLINES LIMITED BY WAY OF TDS/ADVANCE TAX WAS SUBSTANTIAL WHILE NO TAX WAS PAYABLE ON RETURNED LOSS. THESE FACTS RECORDED BY THE CIT(A) HAVE NOT BEEN DISPUTED BEFORE US. WHEN THERE WAS NO LIABILITY OF PAYMENT OF TAX BY M/S. MESCO AIRLINES LIMITED, ON THE OTHER HAND, THEY WERE ENTITLED TO REFUND OF TAX, IT CANNOT BE SAID THAT DUE TO NON - DEDUCTION OF TAX AT SOURCE BY THE ASSESSEE THE INTEREST OF REVENUE HAS SUFFERED. IN THE ABOVE CIRCUMSTANCES, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER O F THE CIT(A) IN THIS REGARD AND THE GROUND NO.2 ITA NOS. 204 & 205/BLPR/2011 CO 133 & 134/RPR/2015 ITO VS. DIRECTOR GENERAL OF POLICE AY: 2008 - 09, 2009 - 10 6 OF THE REVENUES APPEAL FOR ASSESSMENT YEAR 2009 - 10 AND THE ONLY GROUND FOR ASSESSMENT YEAR 2008 - 09 ARE REJECTED. 9. BOTH THE CROSS - OBJECTIONS WERE NOT PRESSED AT THE TIME OF HEARING BEFORE US; ACCORDINGLY, THE SAME ARE REJECTED BEING NOT PRESSED. 10. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE AS WELL AS CROSS - OBJECTIONS OF THE ASSESSEE ARE REJECTED. ORDER PRONOUNCED IN THE COURT ON 09 TH OCTOBER, 2015 AT RAIPUR . SD/ - SD/ - (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE - PRESIDENT RAIPUR ; DATED 09 / 1 0 /201 5 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, RAIPUR 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, RAIPUR