ITO (TDS) (OSD) RG 2, MUMBAI V. INDIAN OIL CORPORATION LTD, MUMBAI

ITA 2820/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3751 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Department
• Bench Allotted: I
• Next Hearing Date: 02-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 25-04-2014
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAV
• Assessee Lawyers: R MURLIDHAR
• Keywords: Maximum Marginal Rate
• Section: 201(1); 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL I , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI MAHAVIR SINGH , JM ./ ITA NO. 2820 / MUM/20 1 4 ( / ASSESSMENT YEAR S : 20 10 - 2011 ) ITO(TDS )(OSD), RG.2, CHARNI ROAD , MUMBAI - 400002 VS. M/S INDIAN OIL CORPORATION LTD., INDIAN OIL BHAVAN, G - 9, ALI YAVA JUNG MARG, BANDRA (EAST), MUMBAI - 51 ./ ./ PAN/GIR NO. : A AACI 1681 F ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI VISHWAS JADHAV /ASSESSEE BY : SHRI R.MURLIDHAR / DATE OF HEARING : 29 /03/2016 AND ./ ITA NO. 5162/ MUM/20 14 ( / ASSESSMENT YEARS : 2011 - 2012 ) ITO(TDS)( OSD), RG.2, CHARNI ROAD, MUMBAI - 400002 VS. M/S INDIAN OIL CORPORATION LTD., INDIAN OIL BHAVAN, G - 9, ALI YAVA JUNG MARG, BANDRA (EAST), MUMBAI - 51 ./ ./ PAN/GIR NO. : A AACI 1681 F ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI VISHWAS JADHAV /ASSESSEE BY : SHRI JASON SANCTIS / DATE OF HEARING : 3 0 / 0 3 /201 6 / DATE OF PRONOUNCEMENT 11/05 /201 6 / O R D E R PER R.C.SHARMA ( A.M) : TH ESE ARE THE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - MUMBAI, FOR THE ASSESSMENT YEAR 20 10 - 2011 & 2011 - 2012 , IN THE MATTER OF ORDER PASSED U/S.201(1) & 201(1A) OF THE I.T.ACT. ITA NO. 2820&5162 /1 4 2 2 . COMMON GRIEVANCE OF THE ASSESSEE IN BOTH THE YEARS P ERTAINS TO HOLDING THE ASSESSEE LIABLE FOR DEFAULT U/S.201(1) & 201(1A) IN RESPECT OF LEASE RENT PAID TO LESSER MMRDA AS PER EXPLANATION (1) TO SECTION 194I OF THE ACT. 3. AT THE OUTSET, LD. AR PLACED ON RECORD ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE F OR THE ASSESSMENT YEAR 2009 - 2010, WHEREIN EXACTLY SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 17 - 2 - 2016. 4. WE HAVE CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, WHEREIN THE TRIBUNAL HELD THAT ASSESSEE WA S NOT IN DEFAULT U/S.201(1) & 201(1A). PRECISE OBSERVATION OF THE TRIBUNAL ARE AS UNDER : - 2. IN THIS APPEAL, ALTHOUGH REVENUE HAS RAISED MULTIPLE GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE IS AGAINST THE ACTION OF THE CIT(A) IN HOLDING THAT THE PROVISIONS O F SEC. 194I OF THE ACT ARE NOT APPLICABLE IN CONNECTION WITH PAYMENT OF RS.1,07,46,381/ - MADE BY THE RESPONDENT - ASSESSEE TO MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY (MMRDA) 3. IN BRIEF, THE RELEVANT FACTS ARE THAT IT WAS NOTICED BY THE ASSESSING O FFICER THAT THE ASSESSEE HAD PAID SUM OF RS.1,07,46,381/ - TO MMRDA IN CONNECTION WITH PLOT ALLOTTED TO IT ON LEASE. ACCORDING TO THE ASSESSING OFFICER, SUCH PAYMENT CONSTITUTED LEASE PREMIUM WHICH WAS LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S. 194I OF THE ACT. CONSEQUENTLY, THE ASSESSEE WAS HELD TO BE AN ASSESSEE IN DEFAULT U/S. 201(1) OF THE ACT FOR NON - DEDUCTION OF TAX AT SOURCE AND ALSO LIABLE FOR PAYMENT OF INTEREST U/S. 201(1 A) OF THE ACT . AS A RESU LT THE TOTAL DEMAND OF RS.33,17,169/ - WAS RAISED IN TERMS OF SEC. 201(1) AND 201(1 A) OF THE ACT . BEFORE CIT(A), ONE OF THE POINTS CANVASSED BY THE ASSESSEE WAS THAT THE IMPUGNED PAYMENT WAS MADE FOR SEE KING EXTENSION OF TIME TO CONSTRUCT THE BUILDING ON THE LEASEHOLD PLOT OF LAND ALLOTTED BY MMRDA, AND THEREFORE, IT COULD NOT BE CONSTRUED AS PAYMENT OF RENT WITHIN THE MEANING OF SEC. 194I OF THE ACT. THE CIT(A) FOLLOWED THE DECISION OF HIS PREDECESSOR IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11 AND HELD THAT THERE WAS NO JUSTIFICATION FOR INVOKING SEC. 194I OF THE ACT IN CONTEXT OF THE IMPUGNED PAYMENT. ACCORDINGLY, THE ACTION OF THE ASSESSING OFFICER HAS BEEN SET - ASIDE. 4. IN THIS BACKGROUN D, REVENUE IS IN APPEAL BEFORE US. AT THE TIME OF HEARING, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE DECISION OF CIT(A) IS IN LINE WITH THE EARLIER DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL ON SIMILAR ISSUE VIZ. M/S. WADHWA ASSOCIATES REALTORS (P) LTD., 36 TAXMAN 526 (MUM) AND NAVI MUMBAI SEZ (P) LTD., 147 ITD 261 (MUM). THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ORDER BY THE CIT(A) IN ASSESSEES ITA NO. 2820&5162 /1 4 3 OWN CASE FOR ASSESSMENT YEAR 2010 - 11, WHICH HAS BEEN FOLLOWED BY THE CIT(A) IN THE INSTANT YEAR, WAS BASED ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. WADHWA ASSOCIATES REALTORS (P) LTD. (SUPRA ), AND THEREFORE, THE ORDER OF THE CIT(A) DOES NOT REQUIRE ANY INTERFERENCE. IT HAS ALSO BEEN POINTED OUT THAT SUCH PRECEDENTS CONTINUE TO HOLD THE FIELD. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE APPEARING FOR THE REVENUE HAS NOT BROUGHT OUT ANY COGENT MATERIAL WHICH WOULD REQUIRE US TO INTERFERE WITH THE CONCLUSION OF THE CIT(A), WHICH IS HEREBY AFFIRMED. NOTABLY, THE DECISION OF THE CIT(A) IS BASED ON THE DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL ITSELF AND IT HA S NOT BEEN SHOWN BY THE DEPARTMENT THAT ANY OF SUCH DECISIONS HAVE BEEN ALTERED BY ANY HIGHER AUTHORITY. 6. IN THE RESULT, THE ORDER OF THE CIT(A) IS AFFIRMED AND APPEAL OF THE REVENUE IS DISMISSED. 5 . WE HAVE GONE THROUGH THE ORDER OF THE TRIBUNAL IN T HE ASSESSEES OWN CASE. AS THE FACTS AND CIRCUMSTANCES ARE PARI MATERIA WITH THE FACTS FOR THE ASSESSMENT YEAR 2010 - 2011 & 2011 - 2012 UNDER CONSIDERATION, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR HOLDING THAT ASSESSEE WAS NOT LIABLE U/S.201(1) & 201(1A) OF THE I.T.ACT. 6. IN THE RESULT, BOTH APPEAL S OF REVENUE ARE DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 11/05 / 201 6 . SD/ - ( MAHAVIR SINGH ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 11/05 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPOND ENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//