ACIT, New Delhi V. M/s Sri Lankan Airlines Ltd., New Delhi

ITA 2756/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81857 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 21-10-2014
• Assessment Year: misc
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R KUMAR
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G: NEW DELHI BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNT ANT MEMBER ITA NOS. 2755,2756/DEL/2013 ASSESSMENT YEARS 2009-10,2010-11 ACIT, VS. SRI LAN KAN AIRLINES LTD. CIRCLE 51 (1), 3 RD FLOOR NO. 312, NEW DELHI. WORLD TRADE CENTRE, BARAKHAMBA AVENUE, NEW DELHI. (PAN DELS21764B) (APPELLANT) (RE SPONDENT) APPELLANT BY : S HRI B.R. KUMAR, SR. DR RESPONDENT BY : SHRI ATUL PURI, CA ORDER PER GEORGE GEORGE K, JUDICIAL MEMBER THESE TWO APPEALS AT THE INSTANCE OF THE REVENUE AR E DIRECTED AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) DATED 22.2.2013. T HE RELEVANT ASSESSMENT YEAR IS 2009-10 AND 2010-11. 2. THE GROUNDS RAISED FOR THESE APPEALS ARE ID ENTICAL AND THEY READ AS FOLLOWS :- (1) THE LD. CIT(A) HAS ERRED IN DELETING THE DEMAND OF RS. 4,90,354/- AND RS. 53,21,444/- FOR F.Y. 2008-09 AND 2009-10 RE SPECTIVELY RAISED BY THE AO ON ACCOUNT OF TDS LIABILITY U/S 194J OF T HE IT ACT TOWARDS THE PAYMENT OF PSF WITHOUT APPRECIATING THE FACT TH AT THE ASSESSEE FAILED TO PRODUCE THE CERTIFICATE ISSUED U/S 197 OF THE I.T. ACT DURING THE COURSE OF PROCEEDINGS U/S 201 OF THE I.T. ACT B EFORE THE AO. (2) THE LD. CIT(A) HAS ERRED IN ACCEPTING THE ADDITIONA L EVIDENCE PRODUCED BY THE ASSESSEE WITHOUT GIVING OPPORTUNITY TO THE AO AS ITA NOS. 2755,2756/DEL/13 2 REQUIRED UNDER RULE 46A OF THE I.T. RULES 1962, BEF ORE ADJUDICATING THE APPEAL. 3. FOR THE ASSESSMENT YEAR 2009-10 THE ASS ISTANT COMMISSIONER OF INCOME TAX PASSED AN ORDER U/S 201 (1) R.W.S. 201(1A) DATE D 13 TH MARCH, 2012 FOR THE 4 TH QUARTER OF THE FINANCIAL YEAR 2008-09 RAISING A DE MAND OF RS. 4,90,354/- ON THE ASSESSEE AS PER THE DETAILS BELOW : NON DEDUCTION OF TAX TO THE TUNE OF RS. 3,21,668/- ON PAYMENTS TO DELHI INTERNATIONAL AIRPORT (P) LTD. ON ACCOUNT OF PASSENGER SERVICE FEE AND INTEREST U/S 201 (1A ) ON THE SAME AMOUNTING TO RS. 1,65,482/-. RS. 3,204/- ON ACCOUNT OF DEFAULTS AS PER THE TDS M ODULE OF THE INCOME TAX DEPARTMENTS SOFTWARE. 3.1 SIMILARLY FOR ASSTT. YEAR 2010-11 THE ASSIST ANT COMMISSIONER OF INCOME TAX PASSED AN ORDER U/S 201(1) R.W.S 201(1A) DATED 13 TH MARCH, 2012 FOR THE FINANCIAL YEAR 2009-10 RAISING A DEMAND OF RS. 53,2 1,444/- ON THE ASSESSEE AS PER THE DETAILS BELOW : NON DEDUCTION OF TAX TO THE TUNE OF RS. 11,81,156/- ON PAYMENTS TO DELHI INTERNATIONAL AIRPORT (P) LTD. ON ACCOUNT OF PASSENGER SERVICE FEE AND INTEREST U/S 201 (1A ) ON THE SAME AMOUNTING TO RS. 4,58,699/- RS. 36,81,590/- ON ACCOUNT OF DEFAULTS AS PER THE T DS MODULE OF THE INCOME TAX DEPARTMENTS SOFTWARE 4. AGGRIEVED BY THE ORDERS OF THE ACIT(A) PASSE D U/S 201 AND 201(1A) OF THE ACT, FOR THE ASSESSMENT YEARS 2009-10 AND 2010-11, THE ASSESSEE FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT (A) A LLOWED THE APPEALS OF THE ITA NOS. 2755,2756/DEL/13 3 ASSESSEE AND THE DEMANDS RAISED U/S 201(1) AND 201( 1A) WAS CANCELLED. THE RELEVANT FINDING OF THE CIT (A) READ AS FOLLOWS :- 4. I HAVE PERUSED THE ASSESSMENT ORDER, GROUNDS O F APPEAL, WRITTEN SUBMISSION, REMAND REPORT OF THE AO AND DISCUSSED T HE MATTER WITH THE APPELLANT VERY CAREFULLY. THE APPELLANT HAD GOT TDS CERTIFICATE U/S 197(1) FROM ACIT, CIR. 49(1), NEW DELHI ON 9.2.2008 VIDE N O. 674 & 6.4.2009 WITH NO TDS IS REQUIRED TO BE MADE IN RESPECT OF PAYMEN TS MADE BY THE APPELLANT U/S 194C & 194J OF THE I.T. ACT TO THESE DEDUCTEES. HENCE, THE DEMANDS RAISED BY THE AO (TDS) CIR. 51(1) IS VOID & ILLEGAL, THE CASE WAS REFERRED TO THE AO FOR GIVING A REMAND REPORT ON 15 .6.2012 BUT TILL DATE HE HAS NOT COMPLIED WITH THE REMAND REPORT. THEREFORE, ON THE BASIS OF TDS CERTIFICATE THE ACTION OF THE APPELLANT STANDS JUST IFIED AND DEMAND IS REDUCED TO NIL. 5. THE REVENUE IS BEING AGGRIEVED IS IN APPEAL B EFORE US. THE LD. DR SUPPORTED THE ORDERS PASSED U/S 201 (1) AND 201(1A) OF THE ACT. ON THE OTHER HAND THE LD. AR REITERATED THE SUBMISSIONS MADE BEF ORE THE INCOME TAX AUTHORITIES AND RELIED ON THE FINDINGS OF THE CIT(A ) 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD. THE CIT(A) ALLOWED THE APPEALS OF THE ASSESSEE BASE D ON THE CERTIFICATES ISSUED BY THE AO U/S 197 OF THE ACT. IN VIEW OF THE CERTIF ICATE ISSUED BY THE AO U/S 197 OF THE ACT, THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TAX AT SOURCE AS PER PROVISIONS OF SECTION 194C AND 194J IN RESPECT OF I MPUGNED PAYMENTS. THE CIT(A), IN ORDER TO VERIFY THE AUTHENTICITY OF CERT IFICATE ISSUED U/S 197 OF THE ACT CALLED FOR A REMAND REPORT FROM THE AO. SINCE THE R EMAND REPORT WAS NOT RECEIVED, THE CIT(A) ALLOWED THE CASE OF THE ASSESS EE. EVEN BEFORE US THE REVENUE HAS NOT CALLED IN QUESTION THE AUTHENTICITY OF THE CERTIFICATE ISSUED U/S ITA NOS. 2755,2756/DEL/13 4 197 OF THE ACT BY THE CONCERNED AO. HENCE WE SEE N O REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). THEREFORE WE UPHOLD THE OR DER OF CIT (A) AS CORRECT AND IN ACCORDANCE WITH LAW. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 22 ND OCTOBER, 2014. SD/- SD/- (B.C. MEENA) ( GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 22 ND OCTOBER, 2014 *VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR, ITAT