M/s CGI Information Systems and Management Consultants Private Limited , Bangalore V. Deputy Commissioner of Income Tax (International Taxation) Circle-1(1), Bangalore

ITA 2836/BANG/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7266 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 25-04-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 12-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bonafide belief; Non-deduction of tax; TDS
• Section: 195; 12; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER I TA NO S . 2834 TO 2836 / BANG/201 8 ASSESSMENT YEAR S : 20 1 2 - 13 TO 2014 - 15 M/S. CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS PVT. LTD., E-CITY TOWER, NO. 95/1 & 95/2, ELECTRONIC CITY PHASE-1 (WEST), BANGALORE 560 100. PAN: AAACI1994C VS. THE DEPUTY COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION), CIRCLE 1 (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : MS. TANMAYEE RAJKUMAR, ADVOCATE REVENUE BY : SHRI PRADEEP KUMAR, CIT (DR) DATE OF HEARING : 1 0 .0 7 .2019 DATE OF PRONOUNCEMENT : 25. 0 7 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THESE THREE APPEALS ARE FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST THREE SEPARATE ORDERS OF LD. CIT(A)-12, BANGALORE ALL DATED 31.07.2018 FOR ASSESSMENT YEARS 2012-13 TO 2014-15. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2012-13 IN ITA NO. 2834/BANG/2018 ARE AS UNDER. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS PRIVATE LIMITED ['THE APPELLANT] RESPECTFULLY PREFERS AN APPEAL UNDER SECTION 253 OF THE INCOME-TAX ACT, 1961 ['THE ACT'], AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) - 12, BANGALORE ['LEARNED CIT(A)'] DATED 31 JULY 2018 (RECEIVED BY THE APPELLANT ON 14 AUGUST 2018), ON THE FOLLOWING GROUNDS: GROUND 1: GENERAL 1.1 THE IMPUGNED ORDER OF THE LEARNED CIT(A) IS BASED ON INCORRECT APPRECIATION OF FACTS AND INCORRECT INTERPRETATION OF LAW AND THEREFORE ITA NOS. 2834 TO 2836/BANG/2018 PAGE 2 OF 6 IS BAD IN LAW. 1.2 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME-TAX (INTERNATIONAL TAXATION). CIRCLE 1(1) ('LEARNED AO') IN TREATING THE APPELLANT TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201 OF THE ACT FOR FAILURE TO DEDUCT TAX AT SOURCE FROM PAYMENT MADE TO CGI GROUP INC ('CGI CANADA'). GROUND 2: HOLDING THE APPELLANT AS AN ASSESSEE IN DEFAULT 2.1 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS BY ERRONEOUSLY HOLDING THAT THE APPELLANT WAS UNDER AN OBLIGATION TO DEDUCT TAX AT SOURCE UNDER SECTION 195 OF THE ACT, ON THE PAYMENTS MADE BY THE APPELLANT TO CGI CANADA TOWARDS CGI NET CHARGES. 2.2 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN HOLDING THAT THE PAYMENTS MADE BY CGI INDIA TO CGI CANADA ARE NOT IN THE NATURE OF MERE REIMBURSEMENT OF COST WITHOUT ANY INCOME ELEMENT EMBEDDED IN IT. 2.3 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND IN FACTS IN HOLDING THAT THE REIMBURSEMENT OF EXPENSES TOWARDS CGI NET CHARGES BY THE APPELLANT TO CGI CANADA IS ROYALTY IN NATURE, WITHOUT EXAMINING THE FACTS OF THE CASE AND THE SUBMISSION MADE BY THE APPELLANT IN THIS REGARD. 2.4 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACT THE HIGH COURT ORDER IN THE CASE OF THE APPELLANT IS NOT A BINDING PRECEDENT AS THE ORDER DOES NOT CONSIDER THE TAXABILITY AS PER THE PROVISION OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT. 2.5 THE LEARNED AO HAS ERRED IN LAW BY NOT PROVIDING REASONS AS TO WHY THE PAYMENTS MADE TO CGI CANADA SHOULD BE TREATED AS 'ROYALTY' OR 'FEES FOR TECHNICAL SERVICES' UNDER THE INDIA-CANADA DOUBLE TAXATION AVOIDANCE AGREEMENT 2.6 WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW BY IGNORING THE SUBMISSIONS MADE BY THE APPELLANT ON NON- TAXABILITY OF THE AFORESAID PAYMENTS UNDER THE PROVISIONS OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT. 2.7 WITHOUT PREJUDICE TO THE ABOVE GROUND, THE LEARNED AO AND THE CIT(A) HAVE ALSO ERRED IN LAW BY IGNORING THE SUBMISSION MADE BY THE APPELLANT THAT IT WAS UNDER THE BONAFIDE BELIEF THAT PAYMENTS TO CGI CANADA TOWARDS CGI NET CHARGES WERE NOT TAXABLE IN INDIA IN LIGHT OF THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. 2.8 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE SUBMISSIONS FILED AND THE JUDICIAL PRECEDENTS RELIED ITA NOS. 2834 TO 2836/BANG/2018 PAGE 3 OF 6 ON BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE APPELLANT SUBMITS THAT EACH OF THE ABOVE GROUNDS IS INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. FURTHER, THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL, AT ANY TIME BEFORE, OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2013-14 IN ITA NO. 2835/BANG/2018 ARE AS UNDER. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS PRIVATE LIMITED ['THE APPELLANT'] RESPECTFULLY PREFERS AN APPEAL UNDER SECTION 253 OF THE INCOME-TAX ACT, 1961 ['THE ACT'], AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) - 12. BANGALORE ['LEARNED CIT(A)-] DATED 31 JULY 2018 (RECEIVED BY THE APPELLANT ON 14 AUGUST 2018), ON THE FOLLOWING GROUNDS: GROUND 1: GENERAL 1.1 THE IMPUGNED ORDER OF THE LEARNED CIT(A) IS BASED ON INCORRECT APPRECIATION OF FACTS AND INCORRECT INTERPRETATION OF LAW AND THEREFORE IS BAD IN LAW. 1.2 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME-TAX (INTERNATIONAL TAXATION), CIRCLE 1(1) ('LEARNED AO) IN TREATING THE APPELLANT TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201 OF THE ACT FOR FAILURE TO DEDUCT TAX AT SOURCE FROM PAYMENT MADE TO CGI GROUP INC ('CGI CANADA'). GROUND 2: HOLDING THE APPELLANT AS AN ASSESSEE IN DEFAULT 2.1 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS BY ERRONEOUSLY HOLDING THAT THE APPELLANT WAS UNDER AN OBLIGATION TO DEDUCT TAX AT SOURCE UNDER SECTION 195 OF THE ACT, ON THE PAYMENTS MADE BY THE APPELLANT TO CGI CANADA TOWARDS CGI NET CHARGES. 2.2 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN HOLDING THAT THE PAYMENTS MADE BY CGI INDIA TO CGI CANADA ARE NOT IN THE NATURE OF MERE REIMBURSEMENT OF COST WITHOUT ANY INCOME ELEMENT EMBEDDED IN IT. 2.3 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND IN FACTS IN HOLDING THAT THE REIMBURSEMENT OF EXPENSES TOWARDS CGI NET CHARGES BY THE APPELLANT TO CGI CANADA IS ROYALTY IN NATURE, WITHOUT EXAMINING THE FACTS OF THE CASE AND THE SUBMISSION MADE BY THE APPELLANT IN THIS REGARD. 2.4 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACT THE HIGH COURT ORDER IN THE CASE OF THE APPELLANT IS NOT A BINDING PRECEDENT AS THE ORDER DOES NOT CONSIDER THE ITA NOS. 2834 TO 2836/BANG/2018 PAGE 4 OF 6 TAXABILITY AS PER THE PROVISION OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT. 2.5 THE LEARNED AO HAS ERRED IN LAW BY NOT PROVIDING REASONS AS TO WHY THE PAYMENTS MADE TO CGI CANADA SHOULD BE TREATED AS 'ROYALTY' OR 'FEES FOR TECHNICAL SERVICES' UNDER THE INDIA-CANADA DOUBLE TAXATION AVOIDANCE AGREEMENT 2.6 WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW BY IGNORING THE SUBMISSIONS MADE BY THE APPELLANT ON NON- TAXABILITY OF THE AFORESAID PAYMENTS UNDER THE PROVISIONS OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT. 2.7 WITHOUT PREJUDICE TO THE ABOVE GROUND, THE LEARNED AO AND THE CIT(A) HAVE ALSO ERRED IN LAW BY IGNORING THE SUBMISSION MADE BY THE APPELLANT THAT IT WAS UNDER THE BONAFIDE BELIEF THAT PAYMENTS TO CGI CANADA TOWARDS CGI NET CHARGES WERE NOT TAXABLE IN INDIA IN LIGHT OF THE ORDER OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL. 2.8 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE SUBMISSIONS FILED AND THE JUDICIAL PRECEDENTS RELIED ON BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE APPELLANT SUBMITS THAT EACH OF THE ABOVE GROUNDS IS INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. FURTHER, THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL. AT ANY TIME BEFORE, OR AT THE TIME OF, HEARING OF THE APPEAL. 4. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2014-15 IN ITA NO. 2836/BANG/2018 ARE AS UNDER. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CGI INFORMATION SYSTEMS AND MANAGEMENT CONSULTANTS PRIVATE LIMITED ['THE APPELLANT'] RESPECTFULLY PREFERS AN APPEAL UNDER SECTION 253 OF THE INCOME-TAX ACT, 1961 ['THE ACT'], AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) - 12. BANGALORE ['LEARNED CIT(A)-] DATED 31 JULY 2018 (RECEIVED BY THE APPELLANT ON 14 AUGUST 2018), ON THE FOLLOWING GROUNDS: GROUND 1: GENERAL 1.1 THE IMPUGNED ORDER OF THE LEARNED CIT(A) IS BASED ON INCORRECT APPRECIATION OF FACTS AND INCORRECT INTERPRETATION OF LAW AND THEREFORE IS BAD IN LAW. 1.2 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME-TAX (INTERNATIONAL TAXATION), CIRCLE 1(1) ('LEARNED AO) IN TREATING THE APPELLANT TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201 OF THE ACT FOR FAILURE TO DEDUCT ITA NOS. 2834 TO 2836/BANG/2018 PAGE 5 OF 6 TAX AT SOURCE FROM PAYMENT MADE TO CGI GROUP INC ('CGI CANADA'). GROUND 2: HOLDING THE APPELLANT AS AN ASSESSEE IN DEFAULT 2.1 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS BY ERRONEOUSLY HOLDING THAT THE APPELLANT WAS UNDER AN OBLIGATION TO DEDUCT TAX AT SOURCE UNDER SECTION 195 OF THE ACT, ON THE PAYMENTS MADE BY THE APPELLANT TO CGI CANADA TOWARDS CGI NET CHARGES. 2.2 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN HOLDING THAT THE PAYMENTS MADE BY CGI INDIA TO CGI CANADA ARE NOT IN THE NATURE OF MERE REIMBURSEMENT OF COST WITHOUT ANY INCOME ELEMENT EMBEDDED IN IT. 2.3 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND IN FACTS IN HOLDING THAT THE REIMBURSEMENT OF EXPENSES TOWARDS CGI NET CHARGES BY THE APPELLANT TO CGI CANADA IS ROYALTY IN NATURE, WITHOUT EXAMINING THE FACTS OF THE CASE AND THE SUBMISSION MADE BY THE APPELLANT IN THIS REGARD. 2.4 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACT THE HIGH COURT ORDER IN THE CASE OF THE APPELLANT IS NOT A BINDING PRECEDENT AS THE ORDER DOES NOT CONSIDER THE TAXABILITY AS PER THE PROVISION OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT. 2.5 THE LEARNED AO HAS ERRED IN LAW BY NOT PROVIDING REASONS AS TO WHY THE PAYMENTS MADE TO CGI CANADA SHOULD BE TREATED AS 'ROYALTY' OR 'FEES FOR TECHNICAL SERVICES' UNDER THE INDIA-CANADA DOUBLE TAXATION AVOIDANCE AGREEMENT 2.6 WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW BY IGNORING THE SUBMISSIONS MADE BY THE APPELLANT ON NON- TAXABILITY OF THE AFORESAID PAYMENTS UNDER THE PROVISIONS OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT. 2.7 WITHOUT PREJUDICE TO THE ABOVE GROUND, THE LEARNED AO AND THE CIT(A) HAVE ALSO ERRED IN LAW BY IGNORING THE SUBMISSION MADE BY THE APPELLANT THAT IT WAS UNDER THE BONAFIDE BELIEF THAT PAYMENTS TO CGI CANADA TOWARDS CGI NET CHARGES WERE NOT TAXABLE IN INDIA IN LIGHT OF THE ORDER OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL. 2.8 THE LEARNED AO AND THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE SUBMISSIONS FILED AND THE JUDICIAL PRECEDENTS RELIED ON BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE APPELLANT SUBMITS THAT EACH OF THE ABOVE GROUNDS IS INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. FURTHER, THE APPELLANT CRAVES LEAVE TO ADD, ALTER, VARY, OMIT, SUBSTITUTE OR AMEND THE ABOVE GROUNDS OF APPEAL. AT ANY TIME BEFORE, OR AT THE ITA NOS. 2834 TO 2836/BANG/2018 PAGE 6 OF 6 TIME OF, HEARING OF THE APPEAL. 5. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE ONLY ISSUE IN DISPUTE IN ALL THE THREE YEARS IS RAISED IN GROUND NOS. 2.1 TO 2.7 AND OTHER GROUNDS ARE GENERAL. HE SUBMITTED THAT THIS ISSUE IS REGARDING THIS ASPECT AS TO WHETHER THE ASSESSEE CAN BE SAID TO BE AN ASSESSEE IN DEFAULT FOR NOT DEDUCTING TDS U/S. 195 ON THE PAYMENTS MADE BY THE ASSESSEE TO CGI CANADA TOWARD CGI NET CHARGES. HE FAIRLY CONCEDED THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN ASSESSEES OWN CASE CIT VS. CGI INFORMATION SYSTEMS & MANAGEMENT CONSULTANTS (P.) LTD. AS REPORTED IN [2014] 48 TAXMANN.COM 264 (KARNATAKA). HE SUBMITTED A COPY OF THIS JUDGMENT OF HON'BLE KARNATAKA HIGH COURT WHICH IS FOR ASSESSMENT YEARS 2003-04 TO 2007-08. THE LD. DR OF REVENUE ALSO SUBMITTED THAT THE ISSUE SHOULD BE DECIDED AGAINST THE ASSESSEE BECAUSE THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN ASSESSEES OWN CASE. IN VIEW OF ABOVE DISCUSSION, WE FIND THAT THIS IS ADMITTED POSITION OF FACT THAT ISSUE IN DISPUTE IS COVERED AGAINST THE ASSESSEE BY THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT IN ASSESSEES OWN CASE AND HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A) IN ALL THE THREE YEARS. 6. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 25 TH JULY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.