M/S EXCELL PRODUCTIONS AUDIO VISUALS PVT LTD., Mumbai V. CIT(A)-59, Mumbai

ITA 2411/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6453 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 16-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGHLD
• Assessee Lawyers: VIJAY MEHTALD
• Keywords: Additional evidence; TDS
• Section: 194C; 201(1)

Judgement Text

ITA NO.2411 TO 2413/MUM/2019 M/S. EXCEL PRODUCTIONS AUDIO VISUALS PVT. LTD. ASSESSMENT YEARS :2006-07,2008-09 & 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.2411/MUM/2019 ( / ASSESSMENT YEAR : 2006-07 ) & ./ I.T.A. NO.2412/MUM/2019 ( / ASSESSMENT YEAR : 2008-09 ) & ./ I.T.A. NO.2413/MUM/2019 ( / ASSESSMENT YEAR : 2009-10 ) M/S. EXCEL PRODUCTIONS AUDIO VISUALS PVT. LTD. POWAI PLAZA, 4 TH FLOOR HIRANANDANI, POWAI MUMBAI-400 076. / VS. CIT(A PPEALS ) - 59 ROOM NO. 1000B SMT. K.G. MITTAL AYURVEDIC HOSPITAL, CHARNI ROAD MUMBAI-400 002. PAN / TAN : AAACE - 7194 - G / MUME - 03715 - F ( &' /APPELLANT ) : ( ()&' / RESPONDENT ) ASSESSEE BY : SHRI VIJAY MEHTA -LD.AR REVENUE BY : SHRI AMIT PRATAP SINGH -LD. SR. DR / DATE OF HEARING : 17/09/2020 / DATE OF PRONOUNCEMENT : 17/09/2020 / O R D E R PER BENCH 1.1 AFORESAID APPEALS BY ASSESSEE FOR ASSESSMENT YE ARS [IN SHORT REFERRED TO AS AY] 2006-07, 2008-09 & 2009-10 ARI SES OUT OF COMMON ITA NO.2411 TO 2413/MUM/2019 M/S. EXCEL PRODUCTIONS AUDIO VISUALS PVT. LTD. ASSESSMENT YEARS :2006-07,2008-09 & 2009-10 2 ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-5 9, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NOS. CIT(A)- 59/IT-3(1)/IT-455 TO 457/2017-18 DATED 07/02/2019. THE FACTS AS WELL AS DISPUTE IS STATED TO BE PARI-MATERIA THE SAME IN ALL THE 3 YEARS. 1.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING DOCUMENTS PLACED IN THE PAPER-B OOK. OUR ADJUDICATION TO THE SUBJECT MATTER OF APPEALS WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. FIRST, WE TAKE UP APPEAL FOR AY 2006-07. ITA NO. 2411/MUM/2019, AY 2006-07 2.1 THE GROUNDS RAISED BY ASSESSEE ARE AS FOLLOWS: - THE LEARNED COMMISSIONER OF INCOME TAX APPEALS-59 D ISALLOWED GROUND NO.4 OF APPEALS WITHOUT CONSIDERING THE EXPLANATION SUBMITT ED FOR DETERMINATION OF CORRECT NATURE OF EXPENSE TO DETERMINE THE RATE OF TDS. THE LEARNED COMMISSIONER APPEALS TREATED THE EXPLANATION AND CLARIFICATIONS AS ADDIT IONAL EVIDENCE AND HAS REFUSED TO ALLOW IT UNDER RULE 46A OF THE ACT AND ALSO THE LEA RNED COMMISSIONER HAS FAILED TO TAKE INTO CONSIDERATION THE REMAND REPORT OF THE AS SESSING OFFICER. THE LEARNED CIT HAS OVER RIDDEN THE REMAND REPORT AND CONFIRMED THE ADDITION OF ORIGINAL ASSESSMENT ORDER. THE CIT HAS ALSO NOT CONSIDERED T HE ORDER PASSED FOR A.Y. 2007-08 WHERE THE SIMILAR GROUND WAS ACCEPTED AND W AS ALLOWED AND THE ADDITION WAS DELETED. 2.2 THE MATERIAL FACTS ARE THAT CONSEQUENT TO SURVE Y ACTION U/S 133A, A COMMON ORDER FOR AYS 2005-06 TO 2009-10 WAS PASSED AGAINST THE ASSESSEE U/S 201(1) & 201(1A) BY LD. ASSESSING OFFI CER (AO) ON 30/03/2011. THE ASSESSEE BEING RESIDENT CORPORATE A SSESSEE IS STATED TO BE ENGAGED IN THE MARKETING AND DISTRIBUTION OF HOME VIDEO VCDS & DVDS ETC. 2.3 UPON PERUSAL OF VARIOUS TDS RETURNS FILED BY TH E ASSESSEE FOR AY 2006-07, IT WAS ALLEGED THAT ON CERTAIN TRANSACTION S, THOUGH HIGHER RATE OF TAX WAS REQUIRED TO BE DEDUCTED U/S 194J, TAX WA S DEDUCTED AT LOWER RATES U/S 194C. THEREFORE, THE ASSESSEE COMMITTED A DEFAULT FOR NOT ITA NO.2411 TO 2413/MUM/2019 M/S. EXCEL PRODUCTIONS AUDIO VISUALS PVT. LTD. ASSESSMENT YEARS :2006-07,2008-09 & 2009-10 3 DEDUCTING TDS AT PROPER AND APPLICABLE RATES AND HE NCE TO BE TREATED AS ASSESSEE-IN-DEFAULT U/S 201(1) / 201(1A) OF THE ACT . 2.4 IN THE ABSENCE OF ANY SATISFACTORY DETAILS / EX PLANATION FORTHCOMING FROM ASSESSEE, THE DETAILS OF ALLEGED DEFAULT TRANS ACTIONS WERE TABULATED BY LD.AO IN PARA-4 OF THE ORDER. THE PARTIES AGAINS T WHICH SHORT-TDS WAS STATED TO BE DEDUCTED WERE - (I) VISUAL REALTY; (II) WEB SYNERGY; (III) SHRINAGAR FILMS PVT. LTD.; (IV) SHYAM FILM TRANSFER SERVICES & (V) SAGARIKA ACOUSTRONICS PVT. LTD. 2.5 THE WORKINGS OF SHORT-DEDUCTION OF TDS AS WORKE D OUT BY LD. AO AGGREGATED TO RS.61,317/- WHICH WOULD ATTRACT CONSE QUENTIAL INTEREST OF RS.49,317/- U/S 201(1A). THUS, A DEMAND OF RS.1,10, 634/- WAS RAISED AGAINST THE ASSESSEE. 3. BEFORE LD. CIT(A), THE ASSESSEE SUBMITTED PARTY- WISE DETAILS AND PLEADED NO DEFAULT. HOWEVER, LD.CIT(A) REFUSED TO A DMIT THE ADDITIONAL EVIDENCES FILED U/R 46A SINCE THE ASSESSEE, IN THE OPINION OF LD. CIT(A), FAILED TO DEMONSTRATE SUFFICIENT CAUSE FOR ADMISSIO N OF THE SAME. CONSEQUENTLY, THE DEMAND RAISED AGAINST THE ASSESSE E WAS UPHELD. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. UPON CAREFUL CONSIDERATION OF IMPUGNED ORDER AND MATERIAL ON RECORD, WE FIND THAT AS PER THE DIRECTIONS OF LD.CI T(A), REMAND PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE WHI CH WERE DULY RESPONDED TO BY LD. AO VIDE REMAND REPORT DATED 25/ 09/2017, A COPY OF WHICH IS ON RECORD. IN PARA-6 OF THE REMAND REPORT, A FINDING HAS BEEN RENDERED BY LD. AO THAT THE CHARGES PAID TO THE AFO RESAID PARTIES WOULD RIGHTLY FALL U/S 194C AND THEREFORE, THE TDS WAS CO RRECTLY DEDUCTED. ITA NO.2411 TO 2413/MUM/2019 M/S. EXCEL PRODUCTIONS AUDIO VISUALS PVT. LTD. ASSESSMENT YEARS :2006-07,2008-09 & 2009-10 4 FURTHER, THE FACT OF REMAND PROCEEDINGS WAS WELL EL ABORATED BY THE ASSESSEE BEFORE LD. CIT(A) IN ITS SUBMISSIONS DATED 24/01/2018 WHEREIN THE ATTENTION WAS BROUGHT TO THE FACT THAT ASSESSEE S SUBMISSIONS DURING REMAND PROCEEDINGS WERE CONSIDERED, DELIBERATED AND VERIFIED BY LD. AO AND A FINDING WAS RENDERED THAT TDS WAS DEDUCTED AT CORRECT RATES U/S 194C. LASTLY, THE FACT OF REMAND PROCEEDINGS WA S NOTED BY LD. CIT(A) ALSO AT PARA 2.3 OF THE IMPUGNED ORDER. THER EFORE, LD. CIT(A), IN OUR OPINION, HAS ERRED IN NOT CONSIDERING THE FINDI NGS RENDERED BY LD. AO IN THE REMAND PROCEEDINGS WHEREIN IT HAS BEEN CLEAR LY STATED THAT TAX WAS CORRECTLY DEDUCTED U/S 194C. IN THAT CASE, NOTH ING SURVIVES AGAINST THE ASSESSEE. THEREFORE, BY DELETING THE IMPUGNED D EMAND, WE ALLOW THE APPEAL. ITA NO. 2413/MUM/2019, AY 2009-10 5.1 FACTS ARE PARI-MATERIA THE SAME IN THIS AY. AN AGGREGATE DEMAND OF RS.4,10,113/- WAS RAISED AGAINST THE ASSESSEE IN SIMILAR MANNER. THE LD. CIT(A), FOLLOWING AY 2006-07, DISMISSED THE GRO UNDS RAISED BY THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN FURTHER APP EAL BEFORE US WITH SIMILAR GROUNDS OF APPEAL. 5.2 WE FIND THAT IN PARA-2 OF REMAND REPORT FOR THI S ASSESSMENT YEAR, LD. AO HAS RENDERED SIMILAR FINDINGS THAT CONSIDERI NG THE NATURE OF SERVICES RENDERED BY VARIOUS PAYEES, TDS WAS CORREC TLY DEDUCTED U/S 194C. THEREFORE, NOTHING WOULD SURVIVE AGAINST THE ASSESSEE AND THEREFORE, WE ARE INCLINED TO DELETE THE DEMAND RAI SED AGAINST THE ASSESSEE. THE APPEAL STANDS ALLOWED. ITA NO.2411 TO 2413/MUM/2019 M/S. EXCEL PRODUCTIONS AUDIO VISUALS PVT. LTD. ASSESSMENT YEARS :2006-07,2008-09 & 2009-10 5 ITA NO. 2412/MUM/2019, AY 2008-09 6.1 FACTS ARE PARI-MATERIA THE SAME IN THIS ASSESSM ENT YEAR ALSO. AN AGGREGATE DEMAND OF RS.13,19,491/- HAS BEEN RAISED AGAINST THE ASSESSEE IN SIMILAR MANNER. THE LD. CIT(A), FOLLOWI NG AY 2006-07, DISMISSED THE GROUNDS RAISED BY THE ASSESSEE. AGGRI EVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US WITH SIMILAR GROUNDS OF APPEAL. 6.2 WE FIND THAT ALTHOUGH THERE IS NO REMAND REPORT FOR THIS YEAR BY LD. AO BUT THE PAYEES ARE MORE OR LESS THE SAME AS IN A Y 2006-07 & 2009- 10. THEREFORE, THE NATURE OF SERVICES REMAINING THE SAME, WE HOLD THAT TDS WAS RIGHTLY DEDUCTED U/S 194C AND THEREFORE, TH E IMPUGNED DEMAND WOULD NOT SURVIVE. THE APPEAL STANDS ALLOWED . CONCLUSION 7. ALL THE APPEAL STANDS ALLOWED IN TERMS OF OUR AB OVE ORDER. ORDER PRONOUNCED ON 17 TH SEPTEMBER, 2020. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 17/09/2020 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. ()&' / THE RESPONDENT 3. 0 ( ) / THE CIT(A) 4. 0 / CIT CONCERNED 5. 12(+3 , 3 , / DR, ITAT, MUMBAI 6. 2456 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.