THE TATA POWER CO. LTD, MUMBAI V. ITO (OSD) (TDS) 3(2), MUMBAI

ITA 2912/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56139 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2011
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 20-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2010
• Court: TRIBUNAL
• Department Lawyers: PRABHAKAR REDDY
• Assessee Lawyers: DINESH VYAS
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J BEFORE HON'BLE SHRI D. MANMOHAN (VP) & SHRI R.K. PA NDA (AM) I.T.A.NO. 2912/MUM/2010 (ASSESSMENT YEAR 2005-06) I.T.A.NO. 2913/MUM/2010 (ASSESSMENT YEAR 2006-07) THE TATA POWER CO. LTD. CORPORATE CENTER BLOCK B, 5 TH FLOOR 34, SANT TUKARAM ROAD CARNAC BUNDER MUMBAI-400 009. VS. ITO(OSD)(TDS) 3(2) 9 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BUILDING NETAJI SUBHASH ROAD CHARNI ROAD WEST MUMBAI-400 002. PAN/GIR NO. : AAACT0054A ASSESSEE BY : SHRI DINESH VYAS DEPARTMENT BY : SHRI PRABHAKAR REDDY DATE OF HEARING : 20.12.2011 DATE OF PRONOUNCEMENT : 20.12.2011 ORDER PER D. MANMOHAN, (VP) :- THESE APPEALS ARE FILED AT THE INSTANCE OF THE A SSESSEE-COMPANY AND THEY PERTAIN TO A.Y. 2005-06 AND 2006-07. 2. FACTS IN SHORT ARE THAT THE ASSESSING OFFICER DE EMED THE APPELLANT AS AN ASSESSEE IN DEFAULT U/S. 201(1) OF THE I.T. A CT FOR NOT DEDUCTING TAX AT SOURCE ON WHEELING CHARGES. THE PLEA OF THE ASSE SSEE THAT NEITHER PROVISIONS OF SECTION 194-I NOR 194-J ARE ATTRACTED WAS NOT ACCEPTED BY THE ASSESSING OFFICER. THE APPEALS FILED BY THE ASS ESSEE IN RESPECT OF THE ABOVE MENTIONED ASSESSMENT YEARS WAS DISMISSED BY L EARNED CIT(A) VIDE ITS SEPARATE ORDERS DATED 28.1.2010. THUS THE ASSES SEE PREFERRED APPEALS BEFORE US. 3. AS THE MATTER STOOD THUS, THE ASSESSEE, VIDE LET TER DATED 29.4.2010, FILED A PETITION U/S. 154 OF THE ACT BEF ORE LEARNED CIT(A) CONTENDING, INTER-ALIA, THAT THE AMENDMENT TO SECTI ON 194-I WAS EFFECTIVE FROM 13.7.2006 AND THUS TRANSMISSION CHARGES PAID B Y THE ASSESSEE THE TATA POWER CO. LTD. 2 PRIOR TO CUTOFF DATE WOULD NOT FALL FOR CONSIDERATI ON UNDER CAPTION RENT IN WHICH EVENT THERE IS NO QUESTION OF LEVY OF INTE REST U/S. 201(1) OF THE ACT. 4. LEARNED COUNSEL APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED THAT LEARNED CIT(A) ACCEPTED THE PLEA OF THE ASSESS EE-COMPANY AND HELD THAT THERE IS NO CASE FOR LEVY OF INTEREST U/S. 201 (1) OF THE ACT, VIDE ORDERS DATED 18.8.2010. HE SUBMITTED THAT IN THE LIGHT OF THE ORDERS PASSED BY LEARNED CIT(A) U/S. 154 OF THE ACT, THE ORDER OF TH E ASSESSING OFFICER U/S. 201(1) OF THE ACT DO NOT STAND AND THUS DECISION OF THE TRIBUNAL WOULD BE OF ACADEMIC IMPORTANCE. NEVERTHELESS HE SOUGHT TO A RGUE THE APPEAL INDEPENDENTLY ON THE GROUND THAT BY VIRTUE OF SECTI ON 194-I OF THE ACT PROCEEDINGS U/S. 201(1) OF THE ACT INITIATED BY THE ASSESSING OFFICER ARE NOT IN ACCORDANCE WITH LAW AND, IN THE ALTERNATIVE, EVEN PROVISIONS OF SECTION 194-J ARE NOT APPLICABLE. IT MAY BE NOTICED THAT THE ISSUE CONCERNING PROVISIONS OF SECTION 194-J WAS NOT RAIS ED IN THE GROUNDS OF APPEAL SINCE DECISION WAS RENDERED BY THE ASSESSING OFFICER MAINLY ON INTERPRETATION OF PROVISIONS OF SECTION 194-I OF TH E ACT. 5. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENT ATIVE SOUGHT TO CANVASS BEFORE US THAT THE ORDER PASSED U/S. 154 OF THE ACT BY LEARNED CIT(A) INDICATE THAT THE APPEAL FILED BY THE ASSESS EE IS PARTLY ALLOWED WHICH IMPLY THAT THE OTHER ASPECTS CANVASSED WERE N OT ACCEPTED BY HIM AND THUS ASSESSEE HAS TO INDEPENDENTLY ARGUE THOSE ASPECTS. 6. WE HAVE CAREFULLY PERUSED THE RECORD. THE ONLY G ROUND URGED BEFORE US IS THAT LEARNED CIT(A) FAILED TO APPRECIA TE THAT SECTION 194-I IS APPLICABLE W.E.F. 13.7.2006 AND NOT FOR THE YEARS O F CONSIDERATION IN WHICH EVENT TAX AUTHORITIES ARE NOT JUSTIFIED IN HO LDING THAT THE TAX IS DEDUCTIBLE AT SOURCE U/S. 194-I OF THE ACT. SINCE T HIS SPECIFIC ISSUE WAS CONSIDERED BY LEARNED CIT(A) AND DECIDED IN FAVOUR OF THE ASSESSEE IN THE ORDERS PASSED BY HIM U/S. 201(1) READ WITH SECTION 154 OF THE ACT, IN OUR CONSIDERED OPINION DECISION ON THE GROUNDS URGED BE FORE US WOULD BE OF THE TATA POWER CO. LTD. 3 MERE ACADEMIC IMPORTANCE. ACCORDINGLY, AS PRONOUNC ED IN THE OPEN COURT APPEALS FILED BY THE ASSESSEE ARE DISMISSED A S INFRUCTUOUS. SD/- (R.K. PANDA) ACCOUNTANT MEMBER SD/- (D. MANMOHAN) VICE-PRESIDENT DATED : 20 TH DECEMBER, 2011. COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS