Shell Global Solutions International B.V., Ahmedabad V. The Dy.DIT(International Taxation)-I, Ahmedabad

ITA 2556/AHD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0082 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 18-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MEENA DATES OF HEARING AU
• Keywords: Rectification of order
• Section: 234B; 2

Judgement Text

I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD I BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] I.T.A. N OS: 2554, 2555 AND 2556 /AHD/2014 ASSESSMENT YEAR S: 2004 - 05, 05 - 06 AND 09 - 10 SHELL GLOBAL SOLUTIONS INTERNATIONAL BV . .. ....... AP PELLANT [PAN: AA IC S 3589H ] VS DEPUTY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) - 1, AHMEDABAD ......RESPONDENT APPEARANCES BY PRASHANT MAHESHWARI FOR THE APPELLANT S L MEENA FOR THE RESPONDENT DATES OF HEARING : AUGUST 10, 11 AND 18 , 2016 DATE OF PRONOUNCEMENT : NOVEMBER 09 , 2016 O R D E R PER PRAMOD KUMAR, AM: 1. THE SHORT AND PURE LEGAL ISSUE THAT REQUIRES OUR ADJUDICATION IN ALL THE THREE APPEALS IS WHETHER, GIVEN THE FACT THAT THE ASSES SEE WAS A NON RESIDENT ASSESSEE AND GIVEN THE FACT THAT ALL THE MONIES BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE WERE RECEIVED FROM INDIAN ASSESSEES WHO WERE OBLIGED TO DEDUCT APPLICABLE TAX AT SOURCE FROM THE RELATED PAYMENTS, THE ASSESSEE COULD BE HELD TO BE LIABLE FOR INTEREST, ON ACCOUNT OF DELAY AND DEFERMENT OF ADVANCE TAX LIABILITY, UNDER SECTION 234 B AND 234 C OF THE INCOME TAX ACT, 1961. ALL THESE APPEALS ARE AGAINST THE ORDERS PASSED BY THE CIT(A) UPHOLDING THE ORDER OF THE ASSESSING OFFICER DE CLINING TO DELETE, IN RESPONSE TO RECTIFICATION PETITIONS FILED BY THE ASSESSEE, LEVY OF INTEREST UNDER SECTION 234 B OR SECTION 234 C. WHILE THIS INTEREST WAS LEVIED, FOR THE ASSESSMENT YEARS 2004 - 05 AND 2005 - 06, DURING THE COURSE OF APPEAL EFFECT PROCEED INGS, THIS INTEREST WAS LEVIED, FOR THE ASSESSMENT YEAR 2009 - 10, DURING THE REGULAR ASSESSMENT PROCEEDINGS. 2. THIS ISSUE IS NO LONGER RES INTEGRA . AS FAR AS BACK AS IN 2003, A COORDINATE BENCH OF THIS TRIBUNAL, IN THE CASE OF FISONS PLC VS DCIT [(2004) 9 1 ITD 450 (MUM )], A COORDINATE BENCH OF THE TRIBUNAL HAS HELD AS FOLLOWS: I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 2 OF 7 8. SEC. 209(1)(D) OF THE ACT PROVIDES THAT WHILE COMPUTING ADVANCE - TAX PAYABLE BY THE ASSESSEE, THE INCOME - TAX CALCULATED ON THE ESTIMATED INCOME OF THE ASSESSEE IS TO BE REDUCED BY 'THE AMOUNT OF INCOME - TAX WHICH WOULD BE DEDUCTIBLE OR COLLECTIBLE AT SOURCE DURING THE SAID FINANCIAL YEAR UNDER ANY PROVISION OF THIS ACT FROM ANY INCOME (AS COMPUTED BEFORE ALLOWING ANY DEDUCTIONS ADMISSIBLE UNDER THIS ACT) WHICH HAS BEEN TAKEN INTO AC COUNT IN COMPUTING THE CURRENT INCOME OR, AS THE CASE MAY BE, THE TOTAL INCOME AFORESAID AND THE AMOUNT OF INCOME - TAX AS SO REDUCED SHALL BE THE ADVANCE - TAX PAYABLE'. IN PLAIN WORDS, THE AMOUNT OF TAX DEDUCTIBLE AT SOURCE IS TO BE REDUCED FROM THE ESTIMATE D TAX LIABILITY, FOR THE PURPOSE OF COMPUTING ADVANCE - TAX PAYABLE. 9. THE ASSESSEE BEFORE US IS A NON - RESIDENT, AND, THEREFORE, THE PROVISIONS OF S. 195 ARE APPLICABLE ON THE PAYMENTS MADE TO THE ASSESSEE. UNDER S. 195, ANY PERSON RESPONSIBLE FOR PAYING TO A NON - RESIDENT ANY OTHER SUM CHARGEABLE UNDER THE PROVISIONS OF THIS ACT SHALL, AT THE TIME OF CREDIT OF SUCH INCOME TO THE ACCOUNT OF THE PAYEE OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY THE ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEV ER IS EARLIER, DEDUCT INCOME - TAX THEREON AT THE RATES IN FORCE. THEREFORE, AS PER THE SCHEME OF S. 195 OF THE ACT, ENTIRE ESTIMATED TAX LIABILITY OF THE ASSESSEE SHOULD HAVE BEEN DEDUCTED AT SOURCE BY THE PERSONS MAKING PAYMENT TO THIS ASSESSEE. IN OTHER W ORDS, ENTIRE TAX LIABILITY OF THE ASSESSEE WAS TAX DEDUCTIBLE AT SOURCE IN THE RELEVANT PREVIOUS YEAR. ACCORDINGLY, THE ASSESSEE DID NOT HAVE ANY LIABILITY TO PAY ADVANCE - TAX IN THE RELEVANT PREVIOUS YEAR AND AS PER THE SCHEME OF S. 209 OF THE ACT. SINCE T HERE WAS NO ADVANCE - TAX LIABILITY ON THE ASSESSEE, THERE WAS NO QUESTION OF APPLICATION OF INTEREST UNDER SS. 234B AND 234C OF THE ACT . 3. THE VIEW SO TAKEN BY THE TRIBUNAL HAS SUBSEQUENTLY BEEN CONFIRMED BY VARIOUS DECISIONS OF HON BLE HIGH COURTS. H ON BLE BOMBAY HIGH COURT, IN THE CASE OF DIT VS NGC NETWORK ASIA LLC [(2009) 313 ITR 187 (BOM)] HAS HELD THAT THE PROVISIONS OF SECTION 234 B AND 234 C CANNOT BE PRESSED INTO SERVICE WHEN TAX WAS DEDUCTIBLE FROM ALL THE RECEIPTS IN THE HANDS OF THE NON RE SIDENT ASSESSEES. IN THE CASE OF DIT VS JACABS CIVIL INC [(2011) 330 ITR 578 (DEL )] , HON BLE DELHI HIGH COURT HAS, IN A DETAILED ANALYSIS, OBSERVED AS FOLLOWS: .. WE ARE NOT PERSUADED BY THIS SUBMISSION .. . IT IS STATED AT THE COST OF REPETITION THA T THE LIABILITY TO DEDUCT OR COLLECT THE TAX AT SOURCE IS THAT OF THE PAYER. THEREFORE, FOR THE PURPOSES OF S. 234B OF THE I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 3 OF 7 ACT, THE QUESTION WOULD BE AS TO WHETHER THE PAYEE, I.E. THE ASSESSEE IN THIS CASE, HAD ANY ROLE IN DEDUCTING OR COLLECTING THE TAX. ONCE THAT IS IN THE NEGATIVE, AND IT WAS NOT DUTY OF THE PAYEE/ASSESSEE, THE QUESTION OF PAYMENT OF ANY INTEREST WOULD NOT ARISE AS IT CANNOT BE SAID, IN SUCH CIRCUMSTANCES, THAT THE ASSESSEE IS IN DEFAULT FOR THE PURPOSES OF S. 234B OF THE ACT. NO DOUBT, AS PER THE JUDGMENT IN THE CASE OF ANJUM GHASWALA (SUPRA), IF THERE IS A DEFAULT IN MAKING THE PAYMENT OF ADVANCE TAX, THE CONSEQUENCE WHICH IS TO FOLLOW IS THAT THE INTEREST BECOMES PAYABLE UNDER S. 234B OF THE ACT. BUT IN THE INSTANT CASE, THE PROVISIONS OF S. 234B OF THE ACT WOULD NOT BE ATTRACTED AT ALL. 7. SEC. 2(1) OF THE ACT DEFINES 'ADVANCE TAX' TO MEAN THE ADVANCE TAX PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII - C OF THE ACT. THESE PROVISIONS ARE CONTAINED FROM S. 207 ONWARDS. SEC. 20 9 FALLS UNDER THIS CHAPTER. SUB - S. (1) THEREOF DEALS WITH FOUR SITUATIONS UNDER WHICH THE ADVANCE TAX PAYABLE BY THE ASSESSEE IS TO BE COMPUTED. ADMITTEDLY, THESE CASES DO NOT CONCERN WITH CLS. (A) TO (C). CLAUSE (D) OF SUB - S. (1) OF S. 209, WHICH IS RELEV ANT READS AS UNDER : '(D) THE INCOME - TAX CALCULATED UNDER CL. (A) OR CL. (B) OR CL. (C) SHALL, IN EACH CASE, BE REDUCED BY THE AMOUNT OF INCOME - TAX WHICH WOULD BE DEDUCTIBLE OR COLLECTIBLE AT SOURCE DURING THE SAID FINANCIAL YEAR UNDER ANY PROVISION OF TH IS ACT FROM ANY INCOME (AS COMPUTED BEFORE ALLOWING ANY DEDUCTIONS ADMISSIBLE UNDER THIS ACT) WHICH HAS BEEN TAKEN INTO ACCOUNT IN COMPUTING THE CURRENT INCOME OR, AS THE CASE MAY BE, THE TOTAL INCOME AFORESAID; AND THE AMOUNT OF INCOME - TAX AS SO REDUCED S HALL BE THE ADVANCE TAX PAYABLE.' 8. THIS CLAUSE CATEGORICALLY USES THE EXPRESSION 'DEDUCTIBLE OR COLLECTIBLE AT SOURCE' AND IT IS THIS CLAUSE WHICH IS INCORPORATED BY THE UTTARANCHAL HIGH COURT IN THE SAID JUDGMENT (SUPRA) IN THE MANNER ALREADY POINTED A BOVE. THE SCHEME OF THE ACT IN RESPECT OF NON - RESIDENTS IS CLEAR. SEC. 195 OF THE ACT PUTS AN OBLIGATION ON THE PAYER, I.E. ANY PERSON RESPONSIBLE FOR PAYING TO A NON - RESIDENT, TO DEDUCT INCOME - TAX AT SOURCE AT THE RATES IN FORCE FROM SUCH PAYMENTS EXCLUDI NG THOSE INCOMES WHICH ARE CHARGEABLE UNDER THE HEAD 'SALARIES'. THEREFORE, THE ENTIRE TAX IS TO BE DEDUCTED AT SOURCE WHICH IS PAYABLE ON SUCH PAYMENTS MADE BY THE PAYER TO THE NON - RESIDENT. SEC. 201 OF THE ACT LAYS DOWN THE CONSEQUENCES OF FAILURE TO DED UCT OR PAY. THESE CONSEQUENCES INCLUDE NOT ONLY THE LIABILITY TO PAY THE AMOUNT WHICH SUCH A PERSON WAS REQUIRED TO DEDUCT AT SOURCE FROM THE PAYMENTS MADE TO A NON - RESIDENT BUT ALSO PENALTIES ETC. ONCE IT IS FOUND THAT THE LIABILITY WAS THAT OF THE PAYER AND THE SAID PAYER HAS DEFAULTED IN DEDUCTING THE TAX AT SOURCE, THE DEPARTMENT IS NOT REMEDY LESS AND THEREFORE CAN TAKE ACTION AGAINST THE PAYER UNDER THE PROVISIONS OF S. 201 OF THE IT ACT AND COMPUTE THE AMOUNT ACCORDINGLY. NO DOUBT, IF THE PERSON (PAY ER) WHO HAD TO MAKE PAYMENTS TO THE NON - RESIDENT HAD DEFAULTED IN DEDUCTING THE TAX AT SOURCE FROM SUCH PAYMENTS, THE NON - RESIDENT IS NOT ABSOLVED FROM PAYMENT OF TAXES THEREUPON. HOWEVER, IN I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 4 OF 7 SUCH A CASE, THE NON - RESIDENT IS LIABLE TO PAY TAX AND THE QUEST ION OF PAYMENT OF ADVANCE TAX WOULD NOT ARISE. THIS WOULD BE CLEAR FROM THE READING OF S. 191 OF THE ACT ALONG WITH S. 209(1)(D) OF THE ACT. FOR THIS REASON, IT WOULD NOT BE PERMISSIBLE FOR THE REVENUE TO CHARGE ANY INTEREST UNDER S. 234B OF THE ACT. 4. L EARNED DEPARTMENTAL REPRESENTATIVE, HOWEVER, DOES NOT GIVE UP. HE PRIMARILY RELIES UPON HON BLE DELHI HIGH COURT S JUDGMENT IN THE CASE OF DIT VS ALCATEL LUCENT INC USA [(2004) 45 TAXMANN.COM 422 (DEL)] WHICH HOLDS THAT EVEN IN THE CASE OF NON RESIDENT ASS ESSEE, AND EVEN AS TAX WAS REQUIRED TO BE DEDUCTED AT SOURCE FROM THE PAYMENTS RECEIVED BY SUCH AN ASSESSEE, INTEREST UNDER SECTION 234 B CAN BE LEVIED. 5. THIS ARGUMENT, HOWEVER, DOES NOT HAVE LEGALLY SUSTAINABLE MERITS. IN THE CASE OF DIT VS G E PAC KAGED POWER INC [ (2015) 373 ITR 0065 (DELHI) ] HON BLE DELHI HIGH COURT HAD THE OCCASION TO DEAL WITH THE JUDICIAL PRECEDENT RELIED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, AND THEIR LORDSHIPS WERE PLEASED TO CLARIFY THAT THE DECISION IN THE CASE OF ALACTEL LUCENT (SUPRA) WAS ON ITS OWN PECULIAR FACTS AND IT CANNOT BE OF UNIVERSAL APPLICATION. THEIR LORDSHIPS, INTER ALIA, OBSERVED AS FOLLOWS: 19. ALCATEL LUCENT (SUPRA), IN ANY EVENT, CAN BE DISTINGUISHED ON THE GROUND THAT THE COURT WAS PERSUADED T O CONFIRM THE LEVY OF INTEREST UNDER SECTION 234B, ONLY ON ACCOUNT OF THE EQUITIES THAT NEEDED TO BE BALANCED IN THOSE PECULIAR FACTS, IN FAVOUR OF TAXABILITY. THIS IS EVIDENT FROM THE FOLLOWING WORDS OF THE COURT: '26. IT FURTHER SEEMS TO US INEQUITABLE THAT THE ASSESSEE, WHO ACCEPTED THE TAX LIABILITY AFTER INITIALLY DENYING IT, SHOULD BE PERMITTED TO SHIFT THE RESPONSIBILITY TO THE INDIAN PAYERS FOR NOT DEDUCTING THE TAX AT SOURCE FROM THE REMITTANCES, AFTER LEADING THEM TO BELIEVE THAT NO TAX WAS DEDU CTIBLE. THE ASSESSEE MUST TAKE RESPONSIBILITY FOR ITS VOLTE FACE. ONCE LIABILITY TO TAX IS ACCEPTED, ALL CONSEQUENCES FOLLOW; THEY CANNOT BE AVOIDED. AFTER HAVING ACCEPTED THE LIABILITY TO TAX AT THE FIRST APPELLATE STAGE, IT IS UNFAIR ON THE PART OF THE A SSESSEE TO INVOKE SECTION 201 AND POINT FINGERS AT THE INDIAN PAYERS. THE ARGUMENT ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE INDIAN PAYERS FAILED TO DEDUCT TAX AT THEIR OWN RISK SEEMS TO US TO BE ONLY AN ARGUMENT OF CONVENIENCE OR DESPAIR. AS WE HAVE POINTED OUT EARLIER, IT IS DIFFICULT TO IMAGINE THAT THE INDIAN TELECOM EQUIPMENT DEALERS OF THE ASSESSEE WOULD HAVE FAILED TO DEDUCT TAX AT SOURCE EXCEPT ON BEING PROMPTED BY THE ASSESSEE. IT MAY BE TRUE THAT THE GENERAL RULE IS THAT EQUITY HAS NO PLACE IN THE INTERPRETATION OF TAX LAWS. BUT WE ARE OF THE VIEW THAT WHEN THE FACTS OF A PARTICULAR CASE JUSTIFY IT, IT IS OPEN TO THE COURT TO INVOKE THE PRINCIPLES OF EQUITY I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 5 OF 7 EVEN IN THE INTERPRETATION OF TAX LAWS. TAX LAWS AND EQUITY NEED NOT BE SWOR N ENEMIES AT ALL TIMES. THE RULE OF STRICT INTERPRETATION MAY BE RELAXED WHERE MISCHIEF CAN RESULT BECAUSE OF THE INCONSISTENT OR CONTRADICTORY STANDS TAKEN BY THE ASSESSEE OR EVEN THE REVENUE. MOREOVER, INTEREST IS, INTER ALIA, COMPENSATION FOR THE USE OF THE MONEY. THE ASSESSEE HAS HAD THE USE OF THE MONEY, WHICH WOULD OTHERWISE HAVE BEEN PAID AS ADVANCE TAX, UNTIL IT ACCEPTED THE ASSESSMENTS AT THE FIRST APPELLATE STAGE. WHERE THE REVENUE HAS BEEN DEPRIVED OF THE USE OF THE MONIES AND THEREBY PUT TO LOSS FOR NO FAULT ON ITS PART AND WHERE THE LOSS AROSE AS A RESULT OF VACILLATING STANDS TAKEN BY THE ASSESSEE, IT IS NOT EXPECTED OF THE ASSESSEE TO SHIFT THE RESPONSIBILITY TO THE INDIAN PAYERS. WE ARE NOT TO BE UNDERSTOOD AS PASSING A VALUE - JUDGMENT ON THE ASSESSEE'S CONDUCT. WE ARE ONLY SAYING THAT THE ASSESSEE SHOULD TAKE RESPONSIBILITY FOR ITS ACTIONS. [EMPHASIS ADDED] THIS COURT FINDS THAT NO NEED IS MADE OUT IN THESE FACTS TO BALANCE ANY EQUITIES IN THESE FACTS, AS THE ASSESSEE HAS NOT VACILLATED IN I TS STAND AS TO THE EXISTENCE OF A PE IN INDIA OR OTHERWISE. IN ANY EVENT, AS OBSERVED EARLIER, THE POSITION OF LAW ITSELF REQUIRES THAT THE TAX BE DEDUCTED AT SOURCE, WHATEVER MAY BE THE ASSESSEE S STANCE, FAILING WHICH THE PAYER IS TREATED AS AN ASSESSEE - IN - DEFAULT UNDER SECTION 201, AND THE PAYEE IS REQUIRED TO DISCHARGE ITS LIABILITY TO PAY THE TAX THAT WAS NOT DEDUCTED UNDER SECTION 191. 6. HON BLE SUPREME COURT S DECISION IN THE CASE OF CIT VS ANJUM GHASWALA [(2001) 252 ITR 1 (SC)] , WHICH HAS ALSO BE EN REFERRED TO AND RELIED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AS ALSO IN THE IMPUGNED ORDERS OF THE CIT(A), WAS ALSO TAKE NOTE OF IN THE AFORESAID DECISION OF HON BLE DELHI HIGH COURT. YET, THEIR LORDSHIPS HELD THE ISSUE UNEQUIVOCALLY IN FAVOUR OF THE ASSESSEE, AND AGAINST APPLICATION OF INTEREST UNDER SECT ION 234 B. THE PRINCIPLE ON THE BASIS OF WHICH THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE, I.E. WORKING OF SECTION 209(1)(D), HAS NOTHING TO DO WITH THE RATIO OF DECISION IN THE CASE OF A NJUM GHASWALA (SUPRA) WHICH HOLDS THAT LEVY OF INTEREST IS MANDATORY. THE LEVY IN MANDATORY IN THE CASES IN WHICH THE LEVY OF INTEREST IS WORKABLE, BUT WHEN WE APPLY THE FORMULA IN SECTION 209(1)(D), THE AMOUNT ON WHICH INTEREST CAN BE LEVIED IS REDUCED TO NIL AS THE AMOUNTS ON WHICH TAXES ARE DEDUCTIBLE ARE TO BE REDUCED FROM THE TOTAL AMOUNTS AND THE TAXES ARE DEDUCTIBLE FROM ENTIRE AMOUNTS. NOTHING THUS SURVIVES FOR THE LEVY OF INTEREST UNDER SECTION 234 B OR, FOR THAT PURPOSE, UNDER SECTION 234 C. 7. THERE IS ONE MORE POINT RAISED BY THE LEARNED DEPARTMENTAL TO JUSTIFY THE UPHOLDING OF LEVY OF INTEREST UNDER SECTION 234B AND 234 C AND THAT POINT IS THAT THE DELETION OF THIS INTEREST IS SOUGHT BY WAY OF PETITION FOR RECTIFICATION OF MISTAKE, AND SINCE T HE MATTER OF CAPABLE OF TWO VIEWS BEING TAKEN, IT CANNOT BE SUBJECT MATTER OF I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 6 OF 7 RECTIFICATION UNDER SECTION 154. HE RELIES UPON HON BLE SUPREME COURT S JUDGMENT IN THE CASE OF ITO VS VOLKART BROTHERS [(1971) 82 ITR 50 (SC)] IN SUPPORT OF THE PROPOSITION THAT A MISTAKE APPARENT ON RECORD IS ONLY SUCH A MISTAKE WHICH IS NOT CAPABLE OF TWO VIEWS BEING TAKEN IN THIS REGARD. HE SUBMITS THAT SINCE HON BLE DELHI HIGH COURT HAS TAKEN A DIFFERENT VIEW, IN THE CASE OF ALCATEL LUCENT (SUPRA), SUCH A CONTENTIOUS ISSUE C ANNOT BE TAKEN UP IN THE 154 PROCEEDINGS. 8. THERE IS NO, AND THERE CANNOT BE ANYWAY, QUARREL WITH THE LEGAL PROPOSITION ADVANCED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. AS HE RIGHTLY POINTS OUT, AN ERROR WHICH HAS TO BE ESTABLISHED BY A LONG - DRAWN PROCESS OF REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RE CORD AND THAT A DECISION ON DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD . HOWEVER, THE FALLACY IN HIS LOGIC IS THAT THE MATTER IS, ACCORDING TO HIM, TWO VIEWS BEING TAKEN IN THIS REGARD. IN THE PRESENT CASE, UNLIKE IN THE CASE OF ALCATEL LUCENT (SUPRA), IT IS NOT EVEN THE CASE OF THE REVENUE THAT THERE IS ANY MALAFIDE OR INCONSISTENCY IN THE CONDUCT O F THE ASSESSEE, AND UNLESS THAT HAPPENS, THE RATIO OF ALCATEL LUCENT (SUPRA), AS EXPLAINED IN THE SUBSEQUENT JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF GE PACKAGED POWER INC (SUPRA), CANNOT BE APPLIED. THE JUDICIAL VIEWS ON THE PROPOSITION THAT SE CTION 234 B AND 234 C CANNOT BE INVOKED IN THE CASES OF NON RESIDENT ASSESSES WHERE TAXES ARE DEDUCTIBLE FROM ALL THE RECEIPTS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE , PARTICULARLY WHERE NO MALAFIDES ARE ALLEGED ON THE CONDUCT OF THE ASSESSEE, ARE CONS ISTENTLY IN FAVOUR OF THE ASSESSEE. THE PLAIN WORDS OF THE STATUE SUPPORT THIS INTERPRETATION AND HON BLE COURTS ABOVE HAVE UNANIMOUSLY HELD SO. SUCH BEING THE CIRCUMSTANCES, THERE IS NO SCOPE OF TWO VIEWS ON THIS ISSUE. THE PROVISO TO SECTION 209(1), BROU GHT ON THE STATUE WITH EFFECT FROM 1 ST APRIL 2012, DOES ALTER THE LEGAL POSITION BUT THEN RIGHT NOW WE ARE DEALING WITH THE PRE - AMENDMENT PERIOD. 9. IN VIEW OF THE ABOVE DISCUSSIONS, IN OUR CONSIDERED VIEW, THE INTEREST UNDER SECTION 234B AND 234 C CANN OT BE LEVIED AT ALL IN THE CASES IN WHICH THE ASSESSEE IS A NON RESIDENT ASSESSEE AND IN WHICH ALL THE MONIES BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE W ERE RECEIVED FROM INDIAN ASSESS ES WHO WERE OBLIGED TO DEDUCT APPLICABLE TAX AT SOURCE FROM THE RELATE D PAYMENTS . LEARNED REPRESENTATIVES FAIRLY AGREE THAT IN THE EVENT OF THIS ISSUE, IN PRINCIPLE, BEING DECIDED IN FAVOUR OF THE ASSESSEE, THE ASSESSEE SUCCEEDS IN THESE APPEALS. WE, THEREFORE, UPHOLD THE GRIEVANCE OF THE ASSESSEE AND DIRECT THE ASSESSING OF FICER TO DELETE THE IMPUGNED LEVIES OF INTEREST UNDER SECTION 234 B AND 234 C. 10. AS WE HAVE DECIDED THE APPEALS ON THE SHORT LEGAL ISSUE, AS DISCUSSED ABOVE, WE SEE NO NEED TO DEAL WITH THE FACTUAL ASPECTS OF THESE CASES AND OTHER I.T.A. NO: 2554, 2555 AND 2556 AHD/2014 ASSESSMENT YEAR: 2004 - 05 ,05 - 06 AND 9 - 10 PAGE 7 OF 7 PERIPHERAL ISSUES R AISED BY THE LEARNED REPRESENTATIVES. ALL THESE ASPECTS , GIVEN OUR DECISION EARLIER, ARE ACADEMIC. 11. IN THE RESULT, THE APPEALS ARE ALLOWED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 9 TH DAY OF NOVEMBER, 2016 SD/ - S D / - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 9 TH DAY OF NOVEMBER ,2016 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD