ADIT(IT)-2(1), Kolkata, Kolkata V. M/s. Pricewaterhouse Coopers LLP, Kolkata

ITA 235/KOL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99836 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-08-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 11-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHIDANANDA SRIVASTAVA
• Assessee Lawyers: R N BAJORIA SENIOR
• Keywords: Double taxation relief; Earning of tax free income; Reason to believe
• Section: 234B; 148; 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI, S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.183/KOL/2011 & ITA NO.235/KOL/2011 ASSESSMENT YEAR :2000-01 PRICEWATERHOUSE COOPERS L.L.P. C/O. PRICEWATERHOUSE COOPERS (PVT) LTD., PLOT NO. Y-14, BLOCK EP, SECTOR V, SALT LAKE, KOLKATA 700 091 [ PAN NO.AAAAP 4377J ] ADIT(IT)-2(1), ROOM NO.4/13, 4 TH FLOOR, AAYAKAR BHAWAN, P- 7, CHOWRINGHEE SQUARE, KOLKATA 700 069 V/S . V/S . ADIT (INTERNATIONAL TAXATION)-2(1), AAYAKAR BHAVAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 1 M/S PRICEWATHERHOUSE COOPERS LLP, C/O PRICEWATHERHOUSE COOPERS PVT. LTD., PLOT- Y14, BLOCK-EP, SECTOR- V, SALT LAKE KOLKATA - 91 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI R.N.BAJORIA, SENIOR ADVOCATE /BY RESPONDENT SHRI SACHIDANANDA SRIVASTAVA, CIT-DR /DATE OF HEARING 10-08-2015 /DATE OF PRONOUNCEMENT 29 - 09-2015 / O R D E R ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 2 PER S.V.MEHROTRA, ACCOUNTANT MEMBER:- THESE CROSS APPEALS HAVE BEEN FILED BY ASSESSEE AN D REVENUE AGAINST THE COMMON ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-VI, KOLKATA DATED 15.11.2010 FOR THE ASSESSMENT YEAR 20 00-01. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A L IMITED LIABILITY PARTNERSHIP FIRM CREATED UNDER THE RELEVANT LAWS OF USA HAVING ITS REGISTERED OFFICE IN THE CITY OF WASHINGTON DC UNIT ED STATE OF AMERICA. IT FILED ITS RETURN OF INCOME IN THE CAPACITY OF NON-R ESIDENT ASSOCIATION OF PERSONS (AOP) AT A TOTAL INCOME OF RS.85,35,230/- U NDER THE HEAD INCOME FROM BUSINESS & PROFESSION. INTIMATION U/S . 1431(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) ISSUED ON 31.03.2002 RAISING A DEMAND OF RS.46,17,346/- BECAU SE THE CHALLAN FOR SELF-ASSESSMENT U/S 140A OF THE ACT AND SOME OF THE ORIGINAL TDS CERTIFICATE WERE NOT ENCLOSED WITH THE RETURN. THE ASSESSING OFFICER HAS OBSERVED IN HIS ASSESSMENT ORDER PASSED U/S 143(2) R.W.S 147 OF THE ACT THAT IN THE COURSE OF PROVISION U/S. 154 OF THE ACT THAT IT WAS NOT NOTICED THAT RETURN OF INCOME WAS SINGED AND VERIFIED BY ON E MR. SAMUEL P. STARR, THE TAX MATTERS PARTNER. THE COMPUTATION SHE ET ENCLOSED WITH THE RETURN WAS UNSIGNED AND IT WAS REVEALED THAT A SUM OF RS.1,95,35,270/- (NET) RECEIVED FROM RELIANCE INDUSTRIES LTD. (RIL F OR SHORT) WAS NOT OFFERED FOR TAXATION AS PER THE NOC OF THE DEPARTME NT. HOWEVER, COPY OF NOC WAS NOT ANNEXED. IT WAS OBSERVED THE PART V OF THE RETURN MADE FOR FURNISHING DETAILS OF INCOME CLAIMED EXEMPTED W AS MARKED NIL. THE ASSESSEE IN ITS SUBMISSION POINTED OUT THAT NAME OF THE PRAYER COMPANY WAS RELIANCE PETROLEUM LIMITED INSTEAD OF RIL. ACCO RDINGLY, NOTICE U/S 148 OF THE ACT WAS SERVED ON THE GROUND THAT INCOME TO THE TUNE OF RS.1,95,35,270/- HAD ESCAPED ASSESSMENT. THE ASSESS EE FILED FRESH ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 3 RETURN DECLARING THE SAME TOTAL INCOME OF RS.85,35, 230/- AND ORDER U/S 144 R.W.S. 147 OF THE ACT WAS PASSED RAISING DEMAND OF RS.1,15,39,359/- , WHICH WAS PARTLY CONFIRMED BY LD. CIT(A). HOWEVER , THE SAID ORDER OF LD. CIT(A) WAS SET ASIDE BY THIS TRIBUNAL B BENCH VIDE ORDER DATED 02.04.2008 IN ITA NO.916/KOL/2007 AND ITA NO.1191/KOL/2007 DIRECTING THE AO TO PASS A SPEAKING ORDER DISPOSING OF THE OBJECTIONS FILED BY THE ASSESSEE AGAINST THE RE-OPENING. THERE AFTER HE EXAMINED THE MERITS OF THE CASE. THE ASSESSEES MAIN ARGUMEN TS WERE AS UNDER:- (A) INCOME FROM SERVICES RENDERED BY ASSESSEE WAS N OT LIABLE TO TAX IN INDIA; (B) THE ASSESSEE STRICTLY RELIED ON THE ORDER U/S 197 ISSUED BY ACIT, JAMNAGAR REGARDING NO DEDUCTION OF TDS; THE ASSESSEE FURTHER SUBMITTED THAT PE OF THE ASS ESSEE HAD NO LINKAGE WITH THAT OF THE SERVICE RENDERED TO RELIAN CE INDUSTRIES LTD. BY ASSESSEE. (D) IT WAS SUBMITTED THAT THE SCOPE AND THE OBJECTI VE OF THE ENGAGEMENT WAS TO PROVIDE PROFESSIONAL SERVICE TO R IL IN CONNECTION WITH SYSTEMS AND PROCEDURES DOCUMENTED I N APPROPRIATE MANUALS AND ALSO PROVIDING TRAINING PLA NS IN COMMERCIAL AREAS. (E) IT WAS FURTHER POINTED OUT THAT THE PE IS WITH RESPECT TO ITS SERVICE RENDERED IN CONNECTION WITH US GAAP AND US LISTINGS AND SERVICE RENDERED BY PWC LLP WAS NEITHER SAME NOR SI MILAR TO THE ACTIVITIES FOR WHICH ASSESSEE HAS PE IN INDIA. 2.1 THE AO DID NOT ACCEPT THE CONTENTIONS OF ASSESS EE. HE POINTED OUT THAT THE PEA OF ASSESSEE BASED ON NOC ISSUED FO R ASSESSEE WAS NOT ACCEPTABLE IN VIEW OF DECISION OF HON'BLE SUPREM E COURT IN THE CASE OF TRANSMISSION CORPORATION OF INDIA, 239 ITR 587 (SC) WHEREIN IT WAS ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 4 HELD THAT THE PROVISION SECTIONS 195(2), 195(3) AND 197 DEALT WITH TENTATIVE DEDUCTION OF INCOME TAX THEREON SUBJECT T O REGULAR ASSESSMENT AND BY THE DEDUCTION OF INCOME TAX, THE RIGHTS OF T HE PARTIES ARE NOT, IN ANY MANNER, ADVERSELY AFFECTED. THEREFORE, NOC U/S 197 WAS NOT BINDING IN THE REGULAR ASSESSMENT MORE SO, BECAUSE BASIC FACTS AND FIGURES OF THE CASE AND ALSO THE NEXUS BETWEEN HE S AID NOC AND THE TWO INVOICES RELATING TO RECEIPT OF PROFESSIONAL FE ES AMOUNTING TO RS.1,95,35,270/- WERE NOT ESTABLISHED. HE ALSO REJE CTED ASSESSEES PLEA THAT SERVICE RENDERED BY PE AS WELL AS PWCLLP WERE OF DIFFERENT NATURE. ACCORDINGLY, HE HELD THAT SUM OF RS.1,95,35,270/- W AS TAXABLE IN INDIA @ 30%. SINCE THE PAYMENT WAS RECEIVED NET OF TAX, T HE SAME WAS GROSSED UP U/S 195A AND ADDED AT RS.2,79,07,529/-. HE ALSO HELD THAT ASSESSEE WAS LIABLE FOR INTEREST U/S. 234B AND 234C OF THE ACT AS THE ASSESSEE WAS LIABLE TO PAY ADVANCE TAX. 2.2. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) UPHELD THE PROCEEDINGS U/S. 147 OF THE ACT A S REGARDS THE ADDITION MADE BY AO, ASSESSEE REITERATED THE SUBMIS SIONS MADE BEFORE AO. THE ASSESSEE, INTER ALIA, SUBMITTED THAT ARTICL E 7(1) OF THE INDIA-US DTAA IS APPLICABLE TO THE ASSESSEE FOR DECIDING TAX ABILITY OR NON- TAXABILITY OF ANY INCOME. LD. CIT(A) HELD THAT FOR DECIDING TAXABILITY OF THE ASSESSEE IN RESPECT OF PROFESSIONAL FEES RECEIVED B Y ASSESSEE FROM DIFFERENT CLIENTS IN INDIA ARTICLE 7 OF THE INDO US DTAA IS NOT THE RIGHT PROVISION. HE POINTED OUT THAT ARTICLE 7 IS APPLICA BLE IN RESPECT OF ENTERPRISES WHICH ARE CARRYING ON BUSINESS ACTIVITY . PROFESSIONAL SERVICES RENDERED BY ASSESSEE IN INDIA ARE COVERED BY ARTICLE 15(1)(B) GIVEN UNDER HEAD INDEPENDENT PERSONAL SERVICE OF THE DTAA. HE POINTED OUT THAT IT IS AN ADMITTED FACT THAT FOR SE RVICES RENDERED TO CLIENTS OTHER THAN RPL THE STAY OF ASSESSEE IN INDIA HAS EX CEEDED 90 DAYS ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 5 DURING THE RELEVANT PREVIOUS YEAR. THEREFORE, IT CO MES UNDER CLAUSE 1(B) OF ARTICLE 15 AND INCOME DERIVED BY IT IN INDIA FRO M PERFORMANCE OF PROFESSIONAL SERVICES BECOME TAXABLE IN INDIA. HE O BSERVED THAT AS PER THE ABOVE PROVISION OF ARTICLE 15 THE PERIOD OF STA Y IN INDIA HAS TO BE AGGREGATED FOR ALL TYPES OF SERVICES RENDERED BY AS SESSEE TO ALL ITS CLIENTS. HE, ACCORDINGLY, HELD THAT PROFESSIONAL FE ES OF RS.1,95,35,270/- RECEIVED BY THE ASSESSEE FROM RPL WILL BE TAXABLE I N THE HANDS OF THE ASSESSEE. HE DID NOT AGREE WITH THE AO'S CONTENTION REGARDING THE GROSS RECEIPT. AS REGARDS CHARGING OF INTEREST U/S. 234B AND 234C OF THE ACT, HE DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. 2.3 BEING AGGRIEVED, BOTH ASSESSEE AND DEPARTMENT A RE IN APPEAL BEFORE THE TRIBUNAL. 3. FIRST WE TAKE UP ASSESSEES APPEAL, ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) KOLKATA-XI, {LD.CIT(A)} ERRED IN APPLYING THE PRO VISIONS OF SECTION 148 OF THE ACT AND HOLDING THAT THE NOTICE DATED 06 .01.2005 ISSUED BY THE ASSESSING OFFICER UNDER SECTION 148 OF THE A CT AS VALID. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE INITIAL RE-ASSESSMENT ORDER DATED 27 TH MARCH, 2006 PASSED UNDER SECTION 147/144 OF THE ACT BY THE ASSESSING OFFICER IS BAD IN LAW, VOID AB INITIO AND IS LIABLE TO BE CANCELLED AND AC CORDINGLY THE ORDER U/S. 143(3)/147 RWS 254 OF THE ACT DATED 29.1 2.2010 WAS ALSO VOID AB INITIO. 3. THAT THE LD. CIT(A) FAILED TO APPRECIATE THE MER E FACT THAT SINCE THE NOC ISSUED BY THE INCOME TAX DEPARTMENT WAS NOT FOUND BY THE ASSESSING OFFICER, IT COULD NOT HAVE LEAD THE A SSESSING OFFICER TO HAVE A REASON TO BELIEVE THAT THE APPELLANT HAD ESCAPED INCOME. 4. THAT THE LD. CIT(A) FAILED TO APPRECIATE THE MER E FACT THAT THE EXEMPT INCOME FROM RELIANCE PETROLEUM LIMITED (RIL ) WHICH WAS ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 6 NOT DISCLOSED IN PART-V OF THE RETURN EVEN THOUGH T HE SAME WAS DISCLOSED IN THE COMPUTATION SHEET ATTACHED COULD N OT HAVE LEAD THE ASSESSING OFFICER TO HAVE A REASON TO BELIEVE T HAT THE APPELLANT HAD ESCAPED INCOME. 5. THAT THE LD.CIT(A) FAILED TO APPRECIATE THE FACT THAT SINCE THE INCOME TAX DEPARTMENT AFTER EXAMINATION OF AGREEMEN T/INVOICES HAD ALREADY CERTIFIED THAT THE SAID INCOME FROM RIL , IS NOT CHARGEABLE TO TAX IN INDIA, THERE WAS NO REASON FOR THE ASSESSING OFFICER TO BELIEVE THAT SUCH INCOME HAS ESCAPED ASS ESSMENT. 6. THAT THE LD.CIT(A) ERRED IN HOLDING THAT THE NOC OBTAINED FROM THE ASSESSING OFFICER IN JAMNAGAR WAS WITHOUT JURIS DICTION. 7. THAT THE LD. CIT(A) ERRED IN FACTS AS WELL AS IN LAW IN HOLDING THAT THE INCOME OF THE APE WAS NOT COVERED BY ARTIC LE 7 OF INDIA- USA TAX TREATY, THEREBY NOT CONSIDERING THE CONTENT ION OF THE APPELLANT THAT THE SERVICES RENDERED BY THE APPELLA NT TO RIL VIZ., FINANCIAL ACCOUNTING AND DEVELOPMENT OF FINANCIAL M ANUALS DID NOT HAVE DIRECT OR INDIRECT CO-RELATION WITH THE SCOPE OF SERVICE OFFERED BY THE PE OF THE APPELLANT IN INDIA IN CONNECTION W ITH US GAAP AND US LISTING AND HENCE NOT TAXABLE AS PER SAID AR TICLE 7 OF THE TAX TREATY 8. THAT THE LD. CIT(A) ERRED IN HOLDING THE ENTIRE INCOME FROM RJL AS TAXABLE AS PER ARTICLE 15 OF THE INDIA-USA TAX T REATY. 9. WITHOUT PREJUDICE TO GROUND 8 ABOVE, EVEN ASSUMI NG BUT NOT ADMITTING THAT IN THE EVENT THE HON'BLE TRIBUNAL CON FIRMS THAT THE INCOME OF THE APPELLANT IS TO BE TAXED IN INDIA AS PER THE PROVISIONS OF ARTICLE 15 OF THE INDIA-USA TAX TREATY, THE ASSE SSING OFFICER MAY BE DIRECTED TO COMPUTE THE TAX AT THE PRESCRIBED RA TE OF 20% SINCE THE APPELLANT DID NOT HAVE A FIXED BASE IN INDIA 4. AT THE TIME OF HEARING LD. COUNSEL FOR ASSESSEE DID NOT PRESS GROUND NOS. 1 TO 8, IMPLYING THAT THE ISSUE OF TAXA BILITY OF INCOME IS NOT DISPUTED. 5. NOW THE ONLY ISSUE REMAINS REGARDING RATE OF TA XATION OF THE INCOME. LD. CIT(A) HAS HELD THAT THE IMPUGNED AMOUN T IS TO BE TAXED AS ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 7 PER ARTICLE 15(1)(B) AND NOT UNDER ARTICLE 15(1)(A) . THE AO WILL, ACCORDINGLY, TAX THE AMOUNT. 6. IN VIEW OF THE ABOVE DISCUSSION, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. THE DEPARTMENT HAS TAKEN FOLLOWING GROUND OF APP EAL, WHICH REPRODUCED AS UNDER:- (A) THAT THE CIT(A) ERRED IN LAW BY NOT CONSIDERIN G THE DECISIONS OF THE JURISDICTIONAL CALCUTTA HIGH COURT IN BORHAT TEA COMPANY LTD CASE (193 ITR 134) WHEREIN THE HONBLE HIGH COU RT HELD THAT UNLESS TAX IS DEDUCTED AT SOURCE, THE PAYEE CANNOT CLAIM THE BENEFIT OF SUCH DEDUCTION WHILE FILING THE ESTIMATE OF ADVANCE TAX AND WHILE COMPUTING THE ADVANCE TAX PAYABLE, THE TA X DEDUCTIBLE AT SOURCE ON THE GROSS AMOUNT OF INCOME WHICH IS SU BJECT TO SUCH DEDUCTION AND WHICH HAS BEEN TAKEN INTO ACCOUNT IN COMPUTING THE TOTAL INCOME WILL BE SET OFF AGAINST THE TAX CALCUL ATED ON THE INCOME SUBJECT TO ADVANCE TAX AND THE BALANCE WILL BE ADVA NCE TAX PAYABLE. (B) THAT C.I.T.(A) WAS NOT JUSTIFIED ON LAW IN HOL DING THAT THE ASSESSEE WAS NOT LIABLE TO PAY ADVANCE TAX WHEN IT HAD PAID TAX OF RS.5,29,399/- UNDER SECTION 140A OF THE INCOME TAX ACT, 1961. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. C.I.T.(A) ERRED IN DIRECTIONS THE ASSESSING OFFICER NOT TO CHARGE INTEREST UNDER 234B AND 234C WITHOUT CONSIDERING ST ATUTORY PROVISION OF INCOME TAX, 1961. 8. THE ONLY DISPUTE IS REGARDING LEVY OF INTEREST U /S 234B AND 234C OF THE ACT. WE FIND THAT LD. CIT(A) HAS ALLOWED THIS I SSUE IN HIS ORDER, WHICH REPRODUCED AS UNDER:- I HAVE EXAMINED THE ORDER OF HONBLE ITAT, KOLKATA IN THE CASE OF THE ASSESSEE FOR ASSESSMENT WAS 2001-02 PASSED IN I TA NO. 2183/KOL/2004 DT. 20.1.2006. IN THIS DECISION HONB LE ITAT HAS HELD THAT SINCE THE ASSESSEE WAS A NON RESIDENT ENTITY WHICH RENDER ED CONSULTANCY SERVICES TO DIFFERENT COMPANIES WHO WERE REQUIRED TO DEDUCT TDS AS PER THE PROVISIONS ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 8 OF SECTION 195 BEFORE MAKING ANY REMITTANCE TO THE ASSESSEE THEREFORE THE ENTIRE INCOME OF THE ASSESSEE WAS SUBJECTED TO TDS. SINCE THE ENTIRE INCOME OF THE ASSESSEE WAS LIABLE FOR TDS THEREFORE THE AS SESSEE WAS NOT LIABLE TO PAY ADVANCE TAX UNDER THE PROVISIONS OF THE ACT AND HENCE, INTEREST U/S. 234B AND 234C WAS NOT CHARGEABLE IN THE CASE OF THE ASSE SSEE. I FIND THAT THE FACTS FOR THIS ASSESSMENT YEAR ARE ALSO SIMILAR AN THEREF ORE I HOLD THAT INTEREST U/S. 234B AND U/S 234C WILL NOT BE LEVIABE IN THE CASE O F THE ASSESSEE. 9. BEFORE US LD. COUNSEL FOR ASSESSEE FILED A COPY OF TRIBUNALS ORDER IN THE CASE OF DCIT V. MGB METRO GROUP BUYING HK LTD. (2014) 146 ITD 343 (DELHI TRIB.) WHEREIN THE TRIBUNAL HAS HELD THAT THE PROVISO IN S EC. 209(1) INSERTED BY FINANCE ACT 2012 WITH EFFECT FROM 1.4.2012 IS RETROSPECTIVE IN NATURE OBSERVING AS UNDER:- SO FAR AS THE CONTENTION OF THE LD. SENIOR DR REGA RDING AMENDMENT INSERTED BY THE FINANCE ACT, 2012, WE ARE REPRODUCING HEREUN DER THE PROVISO WHICH IS EFFECTIVE FROM 1.4.2012:- PROVIDED THAT FOR COMPUTING LIABILITY FOR ADVANCE TAX, INCOME-TAX CALCULATED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) SHALL NOT, IN EACH CASE, BE REDUCED BY THE AFORESAID AMOUNT OF INCOME- TAX WHICH WOULD BE DEDUCTIBLE OR COLLECTIBLE AT SOURCE DURING THE S AID FINANCIAL YEAR UNDER ANY PROVISION OF THIS ACT FROM ANY INCOME, IF THE PERSON RESPONSIBLE FOR DEDUCTING TAX HAS PAID OR CREDITED SUCH INCOME WITHOUT DEDUCTION OF TAX OR IT HAS BEEN RECEIVED OR DEBITED BY THE PERSON RESPONSIBLE FOR COLLECTING TAX WITHOUT COLLECTION O F SUCH TAX. WE ARE OF THE VIEW THAT THE AFORESAID PROVISO INSER TED BY THE FINANCE ACT, 2012 IS PROSPECTIVE IN NATURE AND NOTED WITH RETROS PECTIVE EFFECT. THE PROVISO WAS BROUGHT INTO OPERATION W.E.F. .4.2012 WHEREAS T HE ASSESSMENT YEARS INVOLVED ARE 2005-06 AND 2006-07, THEREFORE, WE ARE NOT IN AGREEMENT WITH THIS ASSERTION OF THE LD. SENIOR DR BECAUSE THE SAI D PROVISO IS NOT RETROSPECTIVE IN NATURE. EVEN OTHERWISE, THE LANGUA GE USED IN SECTION 209(1) IS REGARDING PAYMENT OF ADVANCE TAX IN THE FINANCIA L YEAR, THEREFORE, THE PROVISO IS NOT ATTRACTED FOR THE IMPUGNED ASSESSMEN T YEAR. SO FAR AS THE RELIANCE BY THE LD. SENIOR DR IN THE CASE OF ANJUM M.H. GHASWALA (SUPRA) IS CONCERNED, WE FIND THAT WHILE COMING TO A PARTICULA R CONCLUSION, THE HONBLE DELHI HIGH COURT ALSO CONSIDERED THE AFORESAID DECI SION AND THEN REACHED TO A PARTICULAR CONCLUSION, CONSEQUENTLY, THE ASSESSEE WAS HELD TO BE NOT REQUIRED TO DEPOSIT ANY ADVANCE TAX. IN VIEW OF THI S FACT, IT WAS HELD THAT INTEREST U/S. 234B IS NOT LEVIABLE. THE HONBLE DEL HI HIGH COURT IN THE CASE OF DIT V. JACABS CIVIL INCORPORATED MITSUBISHI CORPN [ 2011] 330 ITR 578 / [2010] 194 TAXMAN 495, ON IDENTICAL ISSUE, HELD THAT SINCE THE ASSESSEE IS NOT LIABLE FOR ADVANCE TAX. IDENTICAL VIEW WAS EXPRESSED BY HO NBLE UTTARANCHAL HIGH COURT IN THE CASE OF CIT V. SEDCO FOREX INTERNATION AL DRILLING CO. LTD. [2003] 264 ITR 320 / [2004] 134 TAXMAN 109. IN VIEW OF THE FACTS STATED IN THE IMPUGNED ORDER AND ALSO IN THE ABSENCE OF ANY ADVER SE MATERIAL BROUGHT ON RECORD, WE FIND NO INFIRMITY IN THE SAME, THEREFORE , THE STAND OF THE CIT(A) IS AFFIRMED. ITA NO.183 &235/KOL/2011 A.Y. 2000-01 M/S PRICEWATERHOUSE COOPERS LLP V. ADIT(IT)2(1), KOL PAGE 9 10. RESPECTFULLY FOLLOWING THE DECISION OF TRIBUNAL IN THE CASE OF MGB METRO GROUP BUYING HK LTD. (SUPRA) WHEREIN THE TRIBUNAL HAD CONSIDERED VARIOU S DECISION OF VARIOUS HONBLE HIGH COURTS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A), BECAUSE ASSESSMENT YEAR UNDER CONSIDERATION IS 2000 -01. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES AND THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 29/ 08/2015 SD/- SD/- (MAHAVIR SINGH) (S.V.MEHROTRA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, ORDER PRONOUNCED IN THE OPEN COURT 29/09/15 SD/- SD/- M.S W.A (J.M) (A.M) *DKP '- 29/09/2015 / COPY OF ORDER FORWARDED TO:- 1. / ASSESSEE-PRICEWATERHOUSECOOPERS L.L.P. PLOT NO Y -14, BLOCK EP, SECTOR-V, SALT LAKE, KOLKATA 700 091 2. / REVENUE-ADIT(INTERNATIONAL TAXATION-2(1), AAYAKA R BHAVAN,P-7, CHOWRINGHEE SQUARE, KOLKATA-1 3. / 1 / CONCERNED CIT KOLKATA 4. 1- / CIT (A) KOLKATA 5. 3 66/, /, / DR, ITAT, KOLKATA 6. : / GUARD FILE. BY ORDER/ , / /,