DCIT, New Delhi V. M/s. Andritz AG, New Delhi

ITA 3413/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5921 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 28-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G K DHALL
• Assessee Lawyers: RITU TANEJA
• Section: 234B

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH F, NEW DELHI BEFORE : SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3413/DEL/2015 ASSESSMENT YEAR: 2010-11 DCIT CIRCLE 1(1)(1), INTL. TAXATION, NEW DELHI (APPELLANT) VS. ANDRITZ AG, C/O MAHINDER PURI & CO. CAS, 1-A-D VANDHNA-11, TOLSTOY MARG, NEW DELHI (PAN: AAFCA6700M) (RESPONDENT) A PPELLANT BY SH. G.K. DHALL, CIT/DR RE SPONDENT BY MS RITU TANEJA, CA ORDER PER L.P. SAHU, A.M.: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)-42, NEW DELHI DATED 09.03.2015 FOR THE ASSES SMENT YEAR 2010-11 ON THE FOLLOWING GROUND : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING INTEREST U/S. 234B. 2. IN THIS CASE THE SOLITARY ISSUE INVOLVED IS RELA TING TO THE DELETING OF INTEREST U/S. 234B BY THE LD.CIT(A). IN THE ASSESSM ENT PROCEEDINGS, THE ASSESSING OFFICER CHARGED INTEREST U/S. 234B AS APP LICATION, WHICH WAS CHALLENGED BY ASSESSEE BEFORE THE LD. CIT(A) WHO FO LLOWING THE DECISION OF DATE OF HEARING 19.06.2018 DATE OF PRONOUNCEMENT 21 .06.2018 ITA NO. 3413/DEL/2015 2 JURISDICTIONAL HIGH COURT, CONCLUDED THAT THE INTER EST U/S. 234B IS NOT LEVIABLE ON THE ASSESSEE. THE FINDING OF THE LD. CIT(A) IS A S UNDER : 15.1. THE APPELLANT HAS SUBMITTED THAT SINCE PAYMEN TS TO NON-RESIDENT ARE SUBJECT TO WITHHOLDING TAX U/S. 195 OF THE ACT, THE APPELLANT IS NOT LIABLE TO PAY ADVANCE TAX AND HENCE, INTEREST U/S. 234B IN TERMS OF PROVISIONS OF SECTION 209(1)(D). RELIANCE HAS BEEN PLACED ON FOLLOWING RULINGS: DIT VS NGC NETWORK ASIA LLC 222 CTR 86 (BOM) DIT VS JACABS CIVIL INCORPORATED, 235 ITR 123 (DEL). CIT VS HALLIBURTON OFFSHORE SERVICES INC. 271 ITR 395 (UTTRAKHAND) 15.2 I HAVE DULY CONSIDERED SUBMISSIONS OF THE APPE LLANT. RESPECTFULLY FOLLOWING JURISDICTIONAL HONBLE DELHI HIGH COURT D ECISION REFERRED TO SUPRA, I HOLD THAT INTEREST U/S. 234B IS NOT LEVIAB LE BECAUSE PAYMENTS MADE TO NON-RESIDENT APPELLANT ARE SUBJECT TO TAX D EDUCTION U/S. 195 OF THE ACT. THE A.O. IS DIRECTED TO GRANT THE RELIEF AC CORDINGLY. 3. THE LD. DR CHALLENGING THE FINDINGS OF THE LD. C IT(A) CONTENDED THAT THE CHARGE OF INTEREST MADE BY THE ASSESSING OFFICER HA S WRONGLY BEEN DELETED BY THE LD. CIT(A). HE, THEREFORE, URGED THAT THE IMPUG NED ORDER IS LIABLE TO BE SET ASIDE AND THE ORDER OF ASSESSMENT DESERVES TO BE RE STORED. 4. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE SU BMITTED THAT THE ASSESSEE BEING A NON-RESIDENT IS NOT LIABLE TO PAY INTEREST U/S. 234B OF THE ACT AND THE LD. CIT(A) HAS RIGHTLY DELETED THE SAME AFTER FOLLO WING THE DECISION OF JURISDICTIONAL HIGH COURT. ITA NO. 3413/DEL/2015 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD AND THE CASE LA WS RELIED BY THE LD. CIT(A). WE FIND THAT THE CONCLUSION REACHED BY THE LD. CIT( A) IS BASED ON THE DECISION RENDERED BY HONBLE JURISDICTIONAL HIGH COURT ON TH E ISSUE OF INTEREST WHETHER LEVIABLE ON THE NON-RESIDENT ASSESSEE OR NO T, AS PER PROVISIONS OF SECTION 234B OF THE ACT, AS THE ASSESSEE WAS SUBJEC T TO WITHHOLDING TAX U/S. 195 OF THE ACT. NO COUNTER DECISION IS PLACED ON RE CORD ON BEHALF OF THE REVENUE. WE, THEREFORE, FINDING NO INFIRMITY IN THE IMPUGNED ORDER, ARE NOT INCLINED TO INTERFERE WITH THE SAME. ACCORDINGLY, T HE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE, 2018. SD/- SD/- (H.S. SIDHU) (L.P . SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21 ST JUNE, 2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI