DCIT (TDS), Dehradun V. The Joint Secretary, Organising Committee for Winter Games 2009, Dehradun

ITA 3097/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6649 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: misc
• Appeal Filed On: 15-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 195

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBE R & SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO. 3097/DEL/2015 ASSESSMENT YEAR: 2011-12 DCIT (TDS) 13-A, SUBHASH ROAD, DEHRADUN. VS THE JOINT SECRETARY, ORGANISING COMMITTEE FOR WINTER GAMES 2009, IHM CAMPUS, GARHI CANTT., DEHRADUN MRTO00485C APPELLANT RESPONDENT REVENUE BY SH. N.K. BANSAL, SR. DR ASSESSEE BY SH. ASHWANI TANEJA, CA SH. SAURABH GOYAL, CA ORDER PER SHRI BHAVNESH SAINI, J.M. THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST TH E ORDER OF LD. CIT(APPEALS)-DEHRADUN DATED 25/02/2015 FOR A Y 2011-12 ON THE FOLLOWING GROUND: LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SETTIN G ASIDE THE MATTER TO THE FILE OF AO AND DIRECTING THE AO T O RE- COMPUTE THE DEMAND AFTER ACCEPTING FRESH EVIDENCE A ND ITS VERIFICATION OF DOCUMENTS PRODUCED BY THE ASSESSEE, INSTEAD OF DECIDING THE ISSUE UNDER RULE 46A, WHICH IS NOT PERMISSIBLE AS PER PROVISIONS OF THE IT ACT, 1961. DATE OF HEARING 22.01.2019 DATE OF PRONOUNCEMENT 23.01.2019 2 ITA NO. 3097/DEL /2015 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE DEDUC TOR IS THE JOINT SECRETARY, ORGANIZING COMMITTEE FOR WINTER GAMES FO R 2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESS EE WAS ASKED TO PROVIDE DETAILS OF TOTAL PAYMENTS MADE TO VARIOU S PARTIES/ORGANIZATIONS FOR VARIOUS JOBS UNDERTAKEN I N CONNECTION WITH ORGANIZING THE WINTER GAMES AND TO FURNISH DET AILS OF DEDUCTION OF TAX AT SOURCE AND PAYMENT INTO CENTRAL GOVERNMENT ACCOUNT OF THE SAME. IT WAS OBSERVED THAT PAYMENTS WERE ALSO BEING MADE TO CERTAIN FOREIGN COMPANIES FOR EPC CON TRACT AND TECHNICAL CONSULTANCY CONTRACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT NO TDS WAS DEDUCT ED BY THE ASSESSEE AGAINST SUCH PAYMENTS. SHOW CAUSE NOTICE WAS ISSUED TO ASSESSEE AS TO WHY ASSESSEE SHOULD NOT BE HELD A S THE ASSESSEE IN DEFAULT U/S 201 OF THE ACT AND WHY SHORT DEDUCTI ON SHOULD NOT BE CHARGED ALONGWITH INTEREST U/S 201(1A). IN RESP ONSE IT WAS SUBMITTED BY THE ASSESSEE THAT GROSS CONTRACTUAL PA YMENTS HAD BEEN MADE TO THE FOLLOWING COMPANIES AS UNDER: I. M/S POMAGALSKI S.A. FRANCE - RS. 8,54,550/- II. M/S SNOW STAR SPA - RS. 85,88,220/- III. M/S SPACE AGE PVT. LTD. - RS. 75,12,309/- 3. THE AO PASSED THE ORDER CONSIDERING SHORT DEDUCT ION AND INTEREST ON SHORT DEDUCTION AND PASSED THE ORDER U/ S 201(1)/201(1A) OF THE ACT WHICH WAS CHALLENGED BEFO RE LD. CIT(A). THE LD. CIT(A) NOTED THE SUBMISSIONS OF THE ASSESSE E IN DETAIL AND NOTED PLEA OF ASSESSEE THAT CONCERNED AGENCIES HAVE INCLUDED THE 3 ITA NO. 3097/DEL /2015 AMOUNT IN THEIR RETURN AND PAID TAX. THE LD. CIT(A ) AFTER CONSIDERING THE SAME, AO WAS DIRECTED TO RECOMPUTE THE SHORT DEDUCTION AND ASSESSEE WAS ALSO DIRECTED TO PRESENT THE EVIDENCE BEFORE AO AND IF AO SATISFIED THAT PAYMENTS HAVE DU LY BEEN ACCOUNTED FOR BY THE ORGANIZATION IN THEIR RETURN O F INCOME, WILL GRANT RELIEF TO THE ASSESSEE. 4. LD. DR CONTENDED THAT CIT(A) HAS NO POWER TO SET ASIDE THE MATTER TO THE AO AND TO DIRECT TO RECOMPUTE THE DEM AND AFTER ACCEPTING FRESH EVIDENCE AND ITS VERIFICATION OF TH E DOCUMENTS PRODUCED BY THE ASSESSEE, INSTEAD OF DECIDING THE I SSUE UNDER RULE 46A OF THE IT RULES. LD. COUNSEL FOR THE ASSE SSEE, HOWEVER, SUBMITTED THAT APPEAL OF THE ASSESSEE FOR SAME AY 2 011-12 HAVE BEEN DECIDED BY THE TRIBUNAL IN ITA NO. 2941/ 2015 VIDE ORDER DATED 10/12/2018, WHEREBY THE SIMILAR MATTERS HAVE BEEN RESTORED TO THE FILE OF AO WITH DIRECTION TO ASSESS EE TO PRODUCE THE BILLS ETC. BEFORE AO WHO WILL EXAMINE THE SAME. LD . COUNSEL FOR ASSESSEE SUBMITTED THAT HOWEVER IN CASES OF THE PAY MENTS MADE TO M/S SNOW STAR SPA AND M/S POMAGALSKI S.A. FRANCE (SUPRA) DIRECTED TO DELETE THE ADDITION MADE U/S 195 OF THE ACT AND FOR OTHERS IT WAS DIRECTED TO FOLLOW ORDER OF THE TRIBU NAL IN OTHER APPEALS. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT S INCE THE APPEAL OF THE ASSESSEE ON THE SAME MATTER IS ALREADY RESTO RED THE AO, THEREFORE, DEPARTMENTAL APPEAL MAY BE DISMISSED. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE MATTER. THOUGH IT IS WELL 4 ITA NO. 3097/DEL /2015 SETTLED THAT LD. CIT(A) SHOULD NOT SET ASIDE THE IS SUE TO THE AO AS PER LAW BUT IN THE PRESENT CASE THE TRIBUNAL WHILE DECIDING THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 10/12/2018 HAS ALREADY RESTORED THE ISSUE TO THE FILE OF AO FOR DECIDING T HE ISSUE AFRESH, THEREFORE, FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE SAME ASSESSEE FOR SAME ASSESSMENT YEAR, NO FURTHER DIRECTIONS ARE REQUIRED IN THE MATTER. THE DEPARTMENTAL APPEAL HAS BECOME INF RUCTUOUS ON DECIDING THE APPEAL OF THE ASSESSEE SEPARATELY. 6. IN THE RESULT, DEPARTMENTAL APPEAL FAILS AND IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (O.P. KANT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23.01.2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 3097/DEL /2015 DATE OF DICTATION 22/01/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22/01/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 23/01 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 23/01 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23/0 1 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER