ACIT, Nashik V. M/s Ashoka Buildcon Ltd, Nashik

ITA 2419/PUN/2012

• Counselvise Citation: 241924514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.2419/PN/2012 (ASSESSMENT YEAR : 2009-10) ASSTT. COMMISSIONER OF INCOME TAX, T.D.S. CIRCLE, NASHIK. . APPELLANT VS. M/S. ASHOKA BUILDCON LTD., ASHOKA HOUSE, ASHOKA MARG, WADALA, NASHIK PAN : AABCA9292J . RESPONDENT DEPARTMENT BY : SHRI P. L. PATHADE ASSESSEE BY : SHRI PRAMOD SHINGTE DATE OF HEARING : 10-01-2014 DATE OF PRONOUNCEMENT : 15-01-2014 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST AN O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, NASHIK DAT ED 28.09.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.03.2011 PAS SED BY THE ASSESSING OFFICER, U/S 201(1)/201(1A) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, THE ONLY ISSUE INVOLVED IS AS TO WHETHER THE PROVISIONS OF SECTION 194H OF THE ACT ARE APPLICABLE TO THE PAYME NTS MADE BY THE ASSESSEE TO ITS BANKERS TOWARDS BANK GUARANTEE COMMISSION AND LETTERS OF CREDIT CHARGES. AS PER THE REVENUE, THE IMPUGNED PAYMENTS ARE IN THE NATURE OF COMMISSION AS IT IS UNDERSTOOD FOR THE PURPOSES O F SECTION 194H OF THE ACT AND THEREFORE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE THEREON. THE ASSESSING OFFICER NOTICED THAT THE RECIPIENT-BANKER S HAD OFFERED THE IMPUGNED INCOME FOR TAXATION, THUS THE CORRESPONDING AMOUNT OF INCOME TAX WAS NOT RECOVERABLE FROM THE ASSESSEE U/S 201(1) OF THE ACT . HOWEVER, THE ASSESSEE ITA NO.2419/PN/2012 A.Y. 2009-10 WAS HELD LIABLE TO PAY INTEREST U/S 201(1A) OF THE ACT FOR THE DELAY IN RECOVERY OF SUCH TAXES BY THE CENTRAL GOVERNMENT. HE, THERE FORE, RAISED A DEMAND U/S 201(1A) OF THE ACT AMOUNTING TO RS.6,30,302/- WHICH HAS SINCE BEEN SET-ASIDE BY THE CIT(A). THE CIT(A) CAME TO CONCLU DE THAT THE IMPUGNED PAYMENTS WERE NOT IN THE NATURE OF COMMISSION AS IT IS UNDERSTOOD IN COMMON PARLANCE AND IN THE CONTEXT OF SECTION 194H OF THE ACT. IN COMING TO SUCH CONCLUSION, THE CIT(A) HAS FOLLOWED THE DECISI ON OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF KOTAK SECURITIES LIMITE D VS. DCIT IN ITA NO. 6657/MUM/2011 DATED 03.02.2012. AGAINST THE AFORES AID DECISION, REVENUE IS IN APPEAL BEFORE US. 3. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PAR TIES THAT THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF KOTAK SECURITIES LIMITED (SUPRA), WHICH HAS BEEN FOLLOWED BY THE CIT(A), CON TINUES TO HOLD THE FIELD AND IT HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. F URTHER, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT BROUGHT TO NOTI CE OF THE BENCH ANY CONTRARY DECISION OF A HIGHER AUTHORITY. 4. IN VIEW OF THE AFORESAID FACTUAL MATRIX AND FOLL OWING THE PRECEDENT IN THE CASE OF KOTAK SECURITIES LIMITED (SUPRA), WHICH HAS BEEN RENDERED ON AN IDENTICAL ISSUE, THE ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND THE REVENUE FAILS ON THIS ASPECT. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 15 TH JANUARY, 2014. SUJEET ITA NO.2419/PN/2012 A.Y. 2009-10 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE