ACIT (TDS) 3(2), MUMBAI V. JET LITE (INDIA ) LTD, MUMBAI

ITA 4634/MUM/2012

• Counselvise Citation: 463419914 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 21-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDRA KUMAR
• Assessee Lawyers: VIJAY MEHTA
• Keywords: Non-deduction of tax
• Section: 133A; 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI . .. . . . . . , ,, , !'# !'# !'# !'# $ $ $ $ %$$ $& %$$ $& %$$ $& %$$ $&, ,, , ' !'# ' !'# ' !'# ' !'# !( !( !( !( BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA , JM !./ I.T.A. NO. 4634/MUM/2012 ( '* & $+& '* & $+& '* & $+& '* & $+& / / / / ASSESSMENT YEAR:2008-09) ACIT (TDS)-3(2), MUMBAI, 1012, 10 TH FLOOR, SMT. K.G.MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD(W), MUMBAI-400002 * * * * / VS. M/S JET LITE (INDIA) LTD. S.M. CENTRE ANDHERI KURLA ROAD, MUMBAI #, ! ./ PAN : AADCS4480L ( #$ / // / REVENUE ) .. ( '* &- / ASSESSEE ) #$ . / ! / REVENUE BY : SHRI SURENDRA KUMAR '* &- . / ! / ASSESSEE BY : SHRI VIJAY MEHTA ! *$ . / // / DATE OF HEARING : 23/12/2013 01+ . / DATE OF PRONOUNCEMENT :03/01/2014 '2 / O R D E R PER P.M. JAGTAP, A.M . .. , !'# : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)-14, MUMBAI, DATED 30.04.2012 AND THE SOL ITARY ISSUE RELATING TO DELETION BY THE LD. CIT(A) OF INTEREST CHARGED BY THE AO U/S 201(1A) IS RAISED THEREIN BY WAY OF THE FOLLOWING G ROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT(A) ERRED IN DELETING THE INTEREST CHARGES U/S. 201(1A) ON SHORT DEDUCTION OF TAX ON PASSENGER SERVICE FEES AND CARGO HANDLING CHARGE WITHOUT APPRECIATING THE FACT THAT INTEREST U/S. 201(1A) WA S MANDATORY AS THE ASSESSEE DID NOT DEDUCT TDS U/S 194I ON PASSENGER SERVICE FEES AND U/S 194J ON CARGO HANDLING CHARGES. THE LD. CIT(A) HAS ERRED IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY ALLOWING RELIEF OF INTEREST U/S 201(1A) OF R S.1,93,00,213/- WHICH IS LEVIED FOR DELAY OF DEDUCTION OF TDS ON PA SSENGER SERVICE 2 ITA NO.4634/MUM/2012 M/S JET LITE (INDIA) LTD. FEES (PSF) & CARGO HANDLING CHARGES U/S. 194I & 194 J, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FAILED TO DEDUCT THE TAX & THE SUBSEQUENT PAYMENT OF TAX BY THE RESPECTIVE PAY EES DOES NOT ABSOLVE THE ASSESSEE FROM THE DEFAULT COMMITTED U/S 201(1A) FOR DELAY OF PAYMENT OF TAX LIABILITY. THE LD. CIT(A) HAS ERRED IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IN DELETING THE DEMAND OF INTEREST OF RS.1,93,0 0,213/- WITHOUT PROPERLY APPRECIATING THE FACTUAL & LEGAL MATRIX OF THE CASE AS CLEARLY BROUGHT OUT BY THE LEARNED A.O. IN ORDER U/S 201(1A ) OF THE I.T. ACT, 1961. THE LD. CIT(A) ON THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW ERRED IN NOT APPRECIATING THE FACT THAT ASSESSEE CO MPANY IS CHARGING @ 2.5% FOR COLLECTING PSF AND NOT MERELY ACTING AS A COLLECTING AGENCY WITHOUT ANY OBLIGATION, IN OTHER WORDS, WITHOUT DER IVING ANY MONETARY BENEFITS. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY. A SURVEY U/S 133A OF THE INCOME-TAX ACT 1961 WAS CARRIED OUT IN ITS CASE ON 21 ST JANUARY 2011. PURSUANT TO THE SURVEY, PROCEEDINGS U/S 201(1) OF THE ACT WERE INITIATED BY THE AO AND VIDE AN ORDER DATE D 31.03.2011 PASSED U/S 201(1), THE ASSESSEE WAS TREATED BY THE AO AS IN DEFAULT ON ACCOUNT OF NON-DEDUCTION OF TAX FROM THE PAYMENT MADE ON ACCOUNT OF PASSENGER SERVICE FEES (IN SHORT PSF) AND DEDUCTION OF TAX AT LOWER RATE U/S 194C INSTEAD OF THE SECTION 194J FROM THE PAYMENT MADE ON ACCOUNT OF CARGO HANDLING CHARGES. ACCORDI NGLY, A DEMAND OF RS.15,86,47,906/- WAS RAISED AGAINST THE ASSESSE E. INTEREST U/S 201(1A) HOWEVER WAS NOT CHARGED BY THE AO IN THE OR DER PASSED U/S 201(1). HE THEREFORE ISSUED A FRESH NOTICE ON 23.0 9.2011 AND PASSED A SEPARATE ORDER U/S 201(1A) ON 23.02.2012 CHARGING INTEREST OF RS.1,93,00,213/-. MEANWHILE THE APPEAL FILED BY TH E ASSESSEE AGAINST THE ORDER PASSED BY THE AO U/S 201(1) WAS DISPOSED OF BY THE LD. CIT(A) HOLDING THAT THE PSF PAYMENTS WERE NOT IN TH E NATURE OF RENT AND THE ASSESSEE THEREFORE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE FROM THE SAID PAYMENTS MADE TO AIRPORT OPERATORS WHICH W ERE ACTUALLY COLLECTED BY THE ASSESSEE FROM THE PASSENGERS ON BE HALF OF THE AIRPORT OPERATORS. IT WAS ALSO HELD BY THE LD. CIT(A) THAT THE PROVISIONS OF SECTION 194J WERE NOT ATTRACTED TO THE CARGO HANDLI NG CHARGES PAID BY 3 ITA NO.4634/MUM/2012 M/S JET LITE (INDIA) LTD. THE ASSESSEE AND THE SAID PAYMENTS WERE ACTUALLY CO VERED BY THE PROVISIONS OF SECTIONS 194C. ACCORDINGLY, THE DEMA ND OF RS. 15,86,47,906/- RAISED AGAINST THE ASSESSEE, AS A RE SULT OF ORDER PASSED BY THE AO U/S 201(1) WAS CANCELLED BY THE LD . CIT(A) AND THE INTEREST CHARGED U/S 201(1A) ON THE SAID DEMAND WAS ALSO DELETED BY HIM. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) DELE TING THE INTEREST CHARGED U/S 201(1A), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE LD. COUNSEL F OR THE ASSESSEE HAS SUBMITTED THAT NO APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LD. CIT(A) CANCELLING DEMAN D OF RS.15.86 CRORES RAISED AGAINST THE ASSESSEE, AS A RESULT OF ORDER PASSED BY THE AO U/S 201(1) AND NOTHING HAS BEEN BROUGHT ON RECOR D BY THE LD. DR TO DISPUTE THIS POSITION. IT THEREFORE FOLLOWS THA T THE VERY BASIS OF CHARGING IMPUGNED INTEREST U/S 201(1A) NO MORE SURV IVES AND THE INTEREST SO CHARGED IS LIABLE TO BE DELETED AS RIGH TLY HELD BY THE LD. CIT(A). WE THEREFORE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) DELETING THE INTEREST CHARGED BY THE AO U/S 201(1A) OF THE ACT AND DISMISS THIS APPEAL FILED BY THE REVENUE. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 03/01/2014 . '2 . 01+ 3'*4 03/01/2014 1 . SD/- SD/- ( VIVEK VARMA ) (P.M. JAGTA P ) ' !'# / JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 3'* DATED 03/01/2014 F{X~{T? P.S./ '*.!. 4 ITA NO.4634/MUM/2012 M/S JET LITE (INDIA) LTD. '2 . 5'6% 7%+ '2 . 5'6% 7%+ '2 . 5'6% 7%+ '2 . 5'6% 7%+/ COPY OF THE ORDER FORWARDED TO : 1. ,8 / THE APPELLANT 2. 59,8 / THE RESPONDENT. 3. : ( ) / THE CIT (A) - , MUMBAI 4. : /CIT MUMBAI 5. %$= 5''* , , / DR, ITAT, MUMBAI BENCH 6. >& ? / GUARD FILE. '2* ! '2* ! '2* ! '2* ! / BY ORDER, !9% 5' //TRUE COPY// @ @@ @/ // /!A !A !A !A ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI,