H- One India Pvt. Ltd., Uttar Pradesh V. ACIT (TDS), Noida

ITA 4466/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2335 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 19-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S N MEENA
• Assessee Lawyers: D D BANSAL
• Keywords: Principle of natural justice; Non passing of speaking order; TDS
• Section: 194C

Judgement Text

1 I.T.A NO. 4466/DEL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A NO. 4466/DEL/2016 (ASSESSMENT YEAR : 2014-15) H - ONE INDIA PVT. LTD., 12, UDYOG VIHAR, SURAJPUR, GREATER NOIDA, UTTAR PRADESH (PAN : AAACH 3032 L) (APPELLANT) VS ACIT(TDS), NOIDA (RESPONDENT) APPELLANT BY SHRI D. D. BANSAL, C.A. RESPONDENT BY SHRI S. N. MEENA, SR. D.R. ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30.06.2016 PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) I, NOIDA FOR ASSESSMENT YEAR 2014-15. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. FOR THAT THE CIT (A) ERRED ON FACTS AS WELL AS IN LAW IN PASSING THE IMPUGNED ORDER. DATE OF HEARING 04.12.2019 DATE OF PRONOUNCEMENT 06.12.2019 2 I.T.A NO. 4466/DEL/2016 2. FOR THAT THE CIT(A) DID NOT TAKE INTO ACCOUNT THE FACT THAT THE HON'BLE CIT(A), NOIDA HAS ALREADY DECIDED THE SAME ISSUE IN OUR FAVOUR IN OUR OWN TDS CASES OF ASSESSMENT YEARS 2008- 09, 2009-10 AND 2010-11. 3. FOR THAT EVEN THOUGH THE CIT (A) HAS DISAGREED WITH HIS PREDECESSOR IN DECIDING THE APPEALS, HE HAS PASSED A NON SPEAKING ORDER, IN CONTRAVENTION OF THE CLEAR ORDERS OF THE APEX COURT IN THIS REGARD. 4. FOR THAT THE CIT (A) ALSO DID NOT TAKE INTO ACCOUNT THE ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT (TDS), NOIDA VS. LOTUS VALLEY EDUCATION SOCIETY. [2014] 45 TAXMANN.COM 37 (ALL.), DESPITE THAT THE SAME WAS DULY BROUGHT TO HIS NOTICE DURING THE COURSE OF HEARING OF THE APPEALS. 5. FOR THAT THE CIT (A) ERRED ON FACTS AS WELL AS IN LAW IN AFFIRMING THE AO'S ORDER IMPOSING TDS ON VEHICLE HIRE CHARGES AND TRUCK HIRE CHARGES U/S 194I INSTEAD OF U/S 194C, DESPITE THAT THE PROVISIONS OF SECTION 194C CLEARLY APPLY TO SUCH PAYMENTS IN VIEW OF THE DEFINITION OF WORK UNDER EXPLANATION (IV) (C) TO SECTION 194C. 6. FOR THAT THE CIT (A) ERRED ON FACTS AS WELL AS IN LAW IN AFFIRMING THE AO'S ORDER, COMPLETELY OVERLOOKING THE CLARIFICATION GIVEN BY CBDT VIDE ITS CIRCULAR NO. 715 DT. 08-08-1995 (VIDE ANSWER TO QUESTION NO. 8) 7. FOR THAT THE CIT (A) ALSO DID NOT TAKE IN TO A/C THE CLARIFICATION GIVEN BY CBDT VIDE ITS CIRCULAR NO. 720 DT. 30-08-1995. THIS CLARIFICATION ASSERTS THAT: IT IS HEREBY CLARIFIED THAT EACH SECTION, REGARDIN'! TDS UNDER CHAPTER XVII. DEALS WITH A PARTICULAR KIND OF PAYMENT TO THE EXCLUSION OF ALL OTHER SECTIONS IN THIS CHAPTER. THUS, PAYMENT OF ANY SUM SHALL BE LIABLE FOR DEDUCTION OF TAX ONLY UNDER ONE SECTION. 8. FOR THAT THE ASSESSING OFFICERS ASSERTION THAT AS THE SECTION 194I HAS BEEN SUBSTITUTED BY THE FINANCE ACT, 2007 AFTER THE DATE OF INSERTION LE. 1.7.1995 OF WORK IN EXPLANATION - III, HENCE THE PROVISION OF SECTION 194-I READ WITH SECTION 43(3) OF THE INCOME TAX ACT BECOMES OPERATIVE IN RESPECT OF RENT (HIRING OF VEHICLE) INSTEAD OF PROVISIONS OF SECTION 194C IS 3 I.T.A NO. 4466/DEL/2016 NOT RELEVANT BECAUSE THE DEFINITION OF WORK U/S 194C HAS NOT BEEN CHANGED. IT IS OBVIOUS THAT THE PARLIAMENT NEVER INTENDED TO DISTURB THE IMPORT AND SCOPE OF WORK AS DEFINED IN SECTION 194C. 9. FOR THAT THE CIT (A) HAS COMPLETELY OVERLOOKED THE FACT THAT W. E. F. 1.10. 2009, THE APPLICABLE TPS RATE U/S!94-I WAS REDUCED TO 2%. INSTEAD OF 10%. DESPITE THAT THE SAME WAS DULY BROUGHT TO HIS NOTICE DURING THE COURSE OF HEARING OF THE APPEALS. 10. FOR THAT THE CIT(A) ALSO DID NOT TAKE IN TO A/C THE UNIVERSAL RULE OF INTERPRETATION OF TAX LAWS THAT WHERE 02 SEPARATE PROVISIONS COULD BE APPLIED IN A PARTICULAR CASE, THE MORE SPECIFIC ONE MUST BE APPLIED; AND ALSO THAT WHERE 02 SEPARATE PROVISIONS COULD BE APPLIED IN A PARTICULAR CASE, THE ONE MORE BENEFICIAL TO THE ASSESSEE MUST BE APPLIED. THIS RESULTED IN THE HUGE DEMAND IN THE PRESENT CASE. 11. THE ASSESSEE CRAVES LEAVE TO PUT, ALTER AND/OR AMEND THE GROUND(S) AT THE TIME OF HEARING. 3. THE ASSESSEE MADE PAYMENT TO THE TRANSPORTERS AND DID NOT DEDUCT TAX AS WAS CONSIDERED NECESSARY BY THE ASSESSING OFFICER U/S. 194C OF INCOME TAX ACT, 1961. THE ASSESSEE CLAIMED THAT THE VEHICLE HIRING CHARGES WAS COVERED UNDER THE PROVISIONS OF SECTION 194C AND NOT U/S. 194-I OF INCOME TAX ACT, 1961. THE ASSESSING OFFICER REJECTED THIS CLAIM AND HELD THAT THE PROVISIONS OF SECTION 194-I OF THE ACT, 1961 ARE APPLICABLE IN THE INSTANT CASE AND PASSED ASSESSMENT ORDER U/S 201(1)/201(1A) OF THE ACT RAISING DEMAND OF RS.10,54,097/- FOR A.Y. 2014-15. 4. BEING AGGRIEVED BY THE ORDER U/S 201(1)/201(1A) OF THE ACT, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 4 I.T.A NO. 4466/DEL/2016 5. THE LD. AR SUBMITTED THAT THE ORDER OF THE CIT(A) IS CONSOLIDATED ORDER FOR A.Y. 2012-13 & 2013-14 AS WELL AS 2014-15. THE TRIBUNAL IN A.Y. 2012-13 & 2013-14 REMANDED BACK THIS ISSUE TO THE FILE OF THE CIT(A). THE LD. AR SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE HONBLE ALLAHABAD HIGH COURT DECISION IN CASE OF ACIT(TDS), NOIDA VS. LOTUS VALLEY EDUCATION SOCIETY 223 TAXMAN 82. THEREFORE, THE LD. AR SUBMITTED THAT SINCE FOR A.Y. 2012-13 & 2013-14 THE ASSESSEE DID NOT APPEAR THE MATTER MAY BE DECIDED ON MERIT FOR A.Y. 2014-15 AND WE ALLOWED IN ASSESSEES FAVOUR AS PER THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT. 6. THE LD. DR SUBMITTED THAT THE ASSESSING OFFICER HAS RIGHTLY REJECTED THE CLAIM OF THE ASSESSEE THAT THE VEHICLE HIRING CHARGES WAS COVERED UNDER THE PROVISIONS OF SECTION 194C AND NOT U/S. 194-I OF INCOME TAX ACT, 1961. THE CIT(A) HAS ALSO TAKEN INTO ACCOUNT THE STATUTORY PROVISION AS WELL AS THE CBDT CIRCULAR NO.715 DATED 08.08.1995 AND CIRCULAR NO.720 DATED 30.08.1995. THE LD. DR RELIED UPON THE ORDER U/S 201(1)/201(1A) OF THE ACT AS WELL AS ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIALS AVAILABLE ON RECORD. THE CIT(A) HAS PASSED EX-PARTE ORDER WHICH IS A CONSOLIDATED ORDER FOR A.Y. 2012-13, 2013-14 & 2014-15. THE TRIBUNAL HAS ALREADY DECIDED THE ISSUE FOR A.Y. 2012-13 & 2013-14 AND RESTORED THE MATTER TO THE FILE OF THE CIT(A) FOR TAKING INTO COGNIZANCE OF THE RELEVANT FACTS (ITA NOS. 4464 AND 4465/DEL/2016 ORDER DATED 22.12.2017). SINCE THE SAME REASONING IS APPLICABLE IN THE PRESENT ASSESSMENT YEAR AS WELL, BECAUSE IT IS ALSO THE PART OF CONSOLIDATED ORDER OF THE CIT(A). THE OBSERVATION OF THE TRIBUNAL FOR A.Y. 2012-13 IS THAT THE ORDER OF THE CIT(A) IS A CRYPTIC ORDER AND IS WITHOUT ANY PROPER REASONING. THEREFORE, WE ARE ALSO OF THE CONSIDERED VIEW THAT THE ORDER OF THE CIT(A) IS NON-SPEAKING ORDER AND DEVOID OF ANY REASONS. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK ALL THE ISSUES CONTESTED THEREIN TO THE FILE OF THE 5 I.T.A NO. 4466/DEL/2016 CIT(A) FOR FRESH ADJUDICATION. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THEREFORE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 6 TH DAY OF DECEMBER, 2019 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 06/12/2019 PRITI YADAV, SR. PS * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI