CASTROL INDIA LTD, MUMBAI V. DCIT (TDS) 1(1), MUMBAI

ITA 3578/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3536 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 20-05-2014
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA SINDHU
• Assessee Lawyers: APURVA R SHAH
• Section: 133A; 194C; 201(1)

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A. NO.3578/M/2014 (ASSESSMENT YEAR: 2007 - 2008 ) I.T.A. NO.3579/M/2014 (ASSESSMENT YEAR: 2008 - 2009 ) M/S. CASTROL INDIA LIMITED, TECHNOPOLIS KNOWLEDGE PARK, MAHAKALI CAVES ROAD, CHAKALA, MUMBAI 40 093. / VS. DCIT (TDS) - 1(1), R.NO.802, 8 TH FLOOR, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., CHARNI ROAD , MUMBAI 400 002. ./ PAN : AAACC4481E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI APURVA R. SHAH / RESPONDENT BY : SHRI RAVINDRA SINDHU, DR / DATE OF HEARING : 22.02.2016 / DATE OF PRONOUNCEMENT : 29.02.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2007 - 2008 AND 2008 - 2009. SINCE, THE ISSUES RAISED IN BOTH THESE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGE THER AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. 2. SINCE, THE GROUNDS RAISED BOTH THE APPEALS ARE IDENTICAL, THE ONLY DIFFERENCE IS IN FIGURES, THEREFORE, FOR THE SAKE OF REFERE NCE AND ADJUDICATION PURPOSE WE REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE FOR THE AY 2007 - 2008 AND THE SAME READ AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE CIT (A) ERRED IN CONFIRMING THE ORDER OF THE AO AS UNDER: - (1) IN CONFIRMING THE ORDER PASSED BY AO WITHOUT CONSIDERING THE SUBMISSIONS MADE AND THE NATURE OF PAYMENT. (2) IN NOT APPRECIATING THE FACT THAT TDS WAS CORRECTLY DONE U/S 194C ON AMOUNT PAID RS. 48, 10,667/ - TO M/S. OM WAREHOUSING PVT LTD. 2 (3) WITHOUT PREJUDICE TO ABOVE, IN NOT APPRECIATING THE FACT THAT TAX ON AMOUNT PAID BY APPELLANT IS ALREADY PAID BY THE RECIPIENT. 3. AT THE OUTSET, L D COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE WHICH INCLUDE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING & DISTRIBUTION OF LUBES, GREASES ETC . THERE WAS A SURVEY ACTION U/S 133A OF THE ACT AT THE PREMISES OF THE ASSESSEE FOR VERIFICATION OF PROPER TDS COMPLIANCE BY THE ASSESSEE. IN THIS CASE, ASSESSEE DONE THE TDS U/S 194C INSTEAD U/S 194I/J OF THE ACT. I N THIS REGARD, ASSESSEE EXPLAINED THAT WITH REGARD TO M/S. OM WAREHOUSING, TDS WAS DONE FOR TWO REASONS VIZ., (I) M/S. OM WAREHOUSING IS A C & F AGENT AND (II) TDS WAS DEDUCTED AS PER THE CBDT CIRCULAR NO.715, DATED 8.8.1995. PER CONTRA, AO IS OF THE OPIN ION THAT THE PROVISIONS OF SECTION 194I SHOULD BE APPLIED TO ALL THE PAYMENTS IN QUESTION. ACCORDINGLY, N OT SATISFIED WITH THE SAID REASONS OF THE ASSESSEE, AO PASSED AN ORDER U/S 201(1) / 201(1A) OF THE ACT, DATED 22.3.2011 RAISING A DEMAND OF RS. 15,49, 808/ - . AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, CIT (A) DISMISSED THE APPEAL. AGAIN AGGR IEVED, ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 5. DURING THE PROCEEDINGS BEFORE US, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO INVOKED THE PROVISIONS OF SECTION 201(1) AND 201(1A) OF THE ACT IN RESPE CT OF THE PAYMENTS TO C & F AGENT IE M/S. OM WAREHOUSING P. LTD. AO INVOKED THE PROVISION OF 194C AND MADE TDS IN RESPECT OF PAYMENTS BY WAY OF WAREHOUSING CHARGES AND OTHERS. ASSESSEE INVOKED THE PROVISIONS OF SECTION 194I IN RESPECT OF RENT. HE FURTH ER SUBMITTED THAT THE PAYEE (M/S. WARESHOUSING P LTD) PAID THE TAXES AND FILED ITS RETURN OF INCOME. IN THAT CASE, REVENUE CANNOT COLLECT TAXES FOR THE SECOND TIME BY WAY OF SECTION 201(1) OF THE ACT. IN THIS REGARD, HE RELIED ON THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P LTD VS. CIT [2007] 293 ITR 226 (SC), DATED 16.8.2007. 6. ON THE OTHER HAND, LD DR RELIED ON THE ORDERS OF THE AO AND THE CIT (A). 3 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF T HE REVENUE AUTHORITIES AS WELL AS THE CITED JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD (SUPRA) AND ALSO THE RELEVANT MATERIAL PLACED BEFORE US. ON PERUSAL OF THE SAID APEX COURT JUDGMENT IN THE CASE OF HINDUST AN COCA COLA BEVERAGE P LTD (SUPRA), WE FIND THE SAME IS RELEVANT FOR THE FOLLOWING PROPOSITION. HELD , (I)........ (II) WITHOUT DECIDING THE QUESTION WHETHER THE APPELLATE TRIBUNAL COULD HAVE REOPENED THE APPEAL FOR RECTIFYING AN ERROR APPARENT ON THE RECORD, THAT, IN VIEW OF CIRCULAR NO.275/201/95 - IT(B) DATED JANUARY 29, 1997, AND SINCE THE ASSESSEE HAD PAID THE INTEREST U NDER SECTION 201(1A) AND THERE WAS NO DISPUTE THAT THE TAX DUE HAD BEEN PAID BY THE DEDUCTEE (PRADEEP OIL), THE APPELLATE TRIBUNAL CAME TO THE RIGHT CONCLUSION THAT THE TAX COULD NOT BE RECOVERED ONCE AGAIN FROM THE ASSESSEE . 8. IN OUR OPINION, IT IS THE CASE OF COLLECTING TAXES TWO TIMES ON THE SAME INCOME. THEREFORE, WE, RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE SAID JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD (SUPRA), DELETE THE DEMAND RAISED IN THE ORDER PASSED U/S 201(1) OF THE ACT. ACCORDINGLY, RELEVANT GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED . 9. REGARDING THE INTEREST LEVIED U/S 201(1A) OF THE IN BOTH THE AYS UNDER CONSIDERATION, WE FIND, IT IS BINDING ON US TO CONFIRM THE ORDER OF THE CIT (A) CONSIDERING THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGE P. LTD (SUPRA). ACCORDINGLY, GROUND NO.2 , RAISED BY THE ASSESSEE IS DISMISSED AS THE AGREEMENT IS COMMON FOR BOTH RENT AND OTHER PAYMENTS. CONSIDERING THE GENERAL NATURE OF GROUND NO.1 , IT DEMANDS NO SPECIFIC ADJUDICATION. THEREFORE, THE SAME IS DISMISSED AS GENERAL. THE ORDERS U/S 201(1A) ARE CONFIRMED . 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 1 1 . SINCE, THE ISSUES INVOLVED IN BOTH THE APPEALS (AYS 2007 - 08 AND 2008 - 09) ARE IDENTICAL, THEREFORE, OUR DECISION GIVEN IN APPEAL FOR THE AY 2007 - 2008, SQUARELY APPLIES TO THE OTHER APPEAL ITA NO.3579/M/2014 FOR THE AY 2008 - 2009 TOO. CONSIDERING THE SAME, A PPEAL FOR THE AY 2008 - 2009 IS PARTLY ALLOWED. 11 . CONCLUSIVELY, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH FEBRUARY, 2016. S D / - S D / - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 29 .2.2016 4 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI