ITO (TDS) (OSD) RG 2, MUMBAI V. INDIAN OIL CORPORATION LTD, MUMBAI

ITA 5041/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3852 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 04-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: R MURLIDHAR
• Keywords: Maximum Marginal Rate
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 5041/MUM/2014 : (A.Y : 20 09 - 10 ) ITO (TDS)(OSD) - RG. 2, MUMBAI (APPELLANT) VS. INDIAN OIL CORPORATION LIMITED, INDIAN OIL BHAVAN, G - 9, ALI YAVAR JUNG MARG, BANDRA (E), MUMBAI 400 051 (RESPONDENT) PAN : AAACI1681G APPELLANT BY : SHRI NEIL PHILIP (DR) RESPONDENT BY : SHRI R. MURLIDHAR DATE OF HEARING : 17/02/2016 DATE OF PRONOUNCEMENT : 17 /02/2016 O R D E R PER G.S. PANNU , A M : THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 12, MUMBAI DATED 15.05.2014, PERTAINING TO THE ASSESSMENT YEAR 2009 - 10, WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 29.03.2011 UNDER SECTION 201(1) AND 201(1A) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, ALTHOUGH REVENUE HAS RAISED MULTIPLE GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE IS AGAINST THE ACTION OF THE CIT(A) IN H OLDING THAT THE PROVISIONS OF SEC. 194I OF THE ACT ARE NOT APPLICABLE IN CONNECTION WITH PAYMENT OF RS.1,07,46,381/ - MADE BY THE RESPONDENT - 2 INDIAN OIL CORPORATION LTD. ITA NO. 5041/MUM/2014 ASSESSEE TO MUMBAI METROPOLITAN REGION DEVELOPMENT AUTHORITY (MMRDA). 3. IN BRIEF, THE RELEVANT FACTS ARE THAT IT W AS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD PAID SUM OF RS.1,07,46,381/ - TO MMRDA IN CONNECTION WITH PLOT ALLOTTED TO IT ON LEASE. ACCORDING TO THE ASSESSING OFFICER, SUCH PAYMENT CONSTITUTED LEASE PREMIUM WHICH WAS LIABLE FOR DEDUCTION OF T AX AT SOURCE U/S. 194I OF THE ACT. CONSEQUENTLY, THE ASSESSEE WAS HELD TO BE AN ASSESSEE IN DEFAULT U/S. 201(1) OF THE ACT FOR NON - DEDUCTION OF TAX AT SOURCE AND ALSO LIABLE FOR PAYMENT OF INTEREST U/S. 201(1A) OF THE ACT. AS A RESULT THE TOTAL DEMAND OF RS.33,17,169/ - WAS RAISED IN TERMS OF SEC. 201(1) AND 201(1A) OF THE ACT. BEFORE CIT(A) , ONE OF THE POINTS CANVASSED BY THE ASSESSEE WAS THAT THE IMPUGNED PAYMENT WAS MADE FOR SEEKING EXTENSION OF TIME TO CONSTRUCT THE BUILDING ON THE LEASEHOLD PLOT OF L AND ALLOTTED BY MMRDA, AND THEREFORE, IT COULD NOT BE CONSTRUED AS PAYMENT OF RENT WITHIN THE MEANING OF SEC. 194I OF THE ACT. THE CIT(A) FOLLOWED THE DECISION OF HIS PREDECESSOR IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11 AND HELD THAT THERE WAS NO JUSTIFICATION FOR INVOKING SEC. 194I OF THE ACT IN CONTEXT OF THE IMPUGNED PAYMENT. ACCORDINGLY, THE ACTION OF THE ASSESSING OFFICER HAS BEEN SET - ASIDE. 4. IN THIS BACKGROUND, REVENUE IS IN APPEAL BEFORE US. AT THE TIME OF HEARING, IT WAS A COMM ON POINT BETWEEN THE PARTIES THAT THE DECISION OF CIT(A) IS IN LINE WITH THE EARLIER DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL ON SIMILAR ISSUE VIZ. M/S. WADHWA ASSOCIATES REALTORS (P) LTD. , 36 TAXMAN 526 (MUM) AND NAVI MUMBAI SEZ (P) LTD. , 147 ITD 261 (MUM). THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE 3 INDIAN OIL CORPORATION LTD. ITA NO. 5041/MUM/2014 ORDER BY THE CIT(A) IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010 - 11, WHICH HAS BEEN FOLLOWED BY THE CIT(A) IN THE INSTANT YEAR, WAS BASED ON THE DECISION OF THE MUMBAI BENCH OF TH E TRIBUNAL IN THE CASE OF M/S. WADHWA ASSOCIATES REALTORS (P) LTD. (SUPRA), AND THEREFORE, THE ORDER OF THE CIT(A) DOES NOT REQUIRE ANY INTERFERENCE. IT HAS ALSO BEEN POINTED OUT THAT SUCH PRECEDENTS CONTINUE TO HOLD THE FIELD. 5. THE LEARNED DEPARTMENTA L REPRESENTATIVE APPEARING FOR THE REVENUE HAS NOT BROUGHT OUT ANY COGENT MATERIAL WHICH WOULD REQUIRE US TO INTERFERE WITH THE CONCLUSION OF THE CIT(A), WHICH IS HEREBY AFFIRMED. NOTABLY, THE DECISION OF THE CIT(A) IS BASED ON THE DECISIONS OF THE MUMBAI BENCH OF THE TRIBUNAL ITSELF AND IT HAS NOT BEEN SHOWN BY THE DEPARTMENT THAT ANY OF SUCH DECISIONS HAVE BEEN ALTERED BY ANY HIGHER AUTHORITY. 6. IN THE RESULT, THE ORDER OF THE CIT(A) IS AFFIRMED AND APPEAL OF THE REVENUE IS DISMISSED. T HE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING ON 1 7 /02/2016. SD/ - SD/ - ( AMARJIT SINGH) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 17 TH FEBRUARY, 2016 4 INDIAN OIL CORPORATION LTD. ITA NO. 5041/MUM/2014 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, I BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR *SSL* I.T.A.T, MUMBAI