DCIT (TDS) 2(2), MUMBAI V. PFIZER LTD, MUMBAI

ITA 5053/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3491 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-02-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 04-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S PANDIAN
• Keywords: Non-deduction of tax
• Section: 133A; 194C; 201(1)

Judgement Text

, , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H MUMBAI . . , , BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO.5053 TO 5057/MUM/2013 ( / ASSESSMENT YEARS :2004-05, 2005-06, 2006-07, 2008-09 & 2009-10) DCIT(TDS)-2(2), ROOM NO.703, 7 TH FLOOR, SMT. K.G.MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI-400002 VS. M/S PFIZER LIMITED, PFIZER CENTRE, PATEL ESTATE, S.V.ROAD, JOGESHWARI (WEST), MUMBAI-400102 ./ ./ PAN/GIR NO. : AAACP 3334 M ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO.2450/MUM/2014 ( / ASSESSMENT YEAR :2009-10) ACIT (TDS)-2(2), ROOM NO.703, 7 TH FLOOR, SMT. K.G.MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI-400002 VS. M/S PFIZER LIMITED, PFIZER CENTRE, PATEL ESTATE, S.V.ROAD, JOGESHWARI (WEST), MUMBAI-400102 ./ ./ PAN/GIR NO. : AAACP 3334 M ( / APPELLANT ) .. ( / RESPONDENT ) AND CROSS OBJECTION NO.141/MUM/2015 ( / ASSESSMENT YEAR :2009-10) M/S PFIZER LIMITED, PFIZER CENTRE, PATEL ESTATE, S.V.ROAD, JOGESHWARI (WEST), MUMBAI-400102 VS. ACIT (TDS)-2(2), ROOM NO.703, 7 TH FLOOR, SMT. K.G.MITTAL AYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI-400002 ./ ./ PAN/GIR NO. : AAACP 3334 M ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI S.PANDIAN /ASSESSEE BY : SHRI KIRIT KAMDAR / DATE OF HEARING : 29/02/2016 /DATE OF PRONOUNCEMENT 25/05/2016 ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 2 / O R D E R PER BENCH : THE ABOVE TITLED APPEALS BY THE REVENUE FOR A.Y.200 4-05, 2005- 06, 2006-07, HAVE BEEN PREFERRED AGAINST THE COMMON ORDER DATED 30-3-2013 OF THE LEARNED COMMISSIONER OF INCO ME-TAX (APPEALS) (HEREINAFTER REFERRED TO AS CIT(A)), WH EREAS APPEALS BY THE REVENUE FOR A.Y.2008-09 & 2009-10 HA VE BEEN PREFERRED AGAINST THE SEPARATE ORDERS OF CIT(A) DAT ED 30-3- 2013. HOWEVER, THE REVENUE HAS ALSO PREFERRED APPEA L FOR A.Y.2009-2010 AGAINST ANOTHER ORDER DATED 30-1-2014 OF CIT(A). THE ASSESSEE HAS ALSO FILED CROSS OBJECTION AGAINST THE ORDER OF CIT(A) DATED 31-1-2014. 2. SINCE THE FACTS AND ISSUES INVOLVED IN ALL THE A PPEALS ARE IDENTICAL, HENCE, THE SAME WERE HEARD ALTOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER. SINCE THE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN ALL ITS APPEALS, HENCE, FOR THE SAKE OF CONVENIENCE, WE TAKE THE ITA NO.5053/MUM/2013 AS A LEAD CASE. THE REVENUE H AS TAKEN AS MANY AS 10 GROUNDS OF APPEAL. 3. GROUND NOS.1 TO 3 ARE RELATING TO NON-DEDUCTION OF TAX AT SOURCE ON YEAR END PROVISION. 4. BRIEF FACTS RELATING TO THE ISSUE UNDER CONSIDER ATION ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURIN G AND TRADING OF PHARMACEUTICALS, CHEMICALS AND ANIMAL HEALTH PRODUC TS. A SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED BY THE AO AT THE PREMISES OF THE ASSESSEE ON 8 TH SEPTEMBER, 2008 AND IT WAS FOUND THAT ASSESSEE HAD NOT DEDUCTED TDS IN RESPECT OF ACCRUED LIABILITIES FOR WHICH PROVISIONS WERE MADE IN THE PROFIT AND LOSS ACCOUNT. AS A RESULT OF WHICH, THE PROCEEDINGS ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 3 U/S.201(1)/201(1A) WERE INITIATED AGAINST THE ASSES SEE. DURING THE COURSE OF THE PROCEEDINGS U/S.201(1)/201(1A) SUBMISSIONS W ERE MADE BY THE ASSESSEE FROM TIME TO TIME. PURSUANT TO THE SAME AN D AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, THE AO PASSED THE IMPUG NED ORDERS U/S.201(1)/201(1A) OF THE ACT RAISING DEMANDS OF T AX U/S.201(1) AND INTEREST U/S.201(1A) OF THE ACT IN RESPECTIVE ASSES SMENT YEARS UNDER CONSIDERATION. 5. BEING AGGRIEVED BY THE ORDER OF AO, ASSESSEE PRE FERRED APPEAL BEFORE THE CIT(A). THE ASSESSEE SUBMITTED BEFORE TH E CIT(A) THAT THESE EXPENSES WERE MERE ESTIMATIONS AND HAD BEEN REVERSE D IN THE SUBSEQUENT YEAR. HENCE, THERE WAS NO REQUIREMENT OF TAX DEDUCTION AT SOURCE IN RESPECT THEREOF. THE ASSESSEE FURTHER ST ATED THAT THE YEAR-END PROVISIONS WERE MADE PURELY ON AN ESTIMATION BASIS TO ENSURE COMPLIANCE WITH THE PROVISIONS OF THE COMPANIES ACT, 1956 AND FOR DETERMINATION OF BOOK PROFITS. THAT AT THAT STAGE THE PARTIES TO WHO M THE EXPENSES PERTAIN TO, WERE NOT KNOWN/IDENTIFIABLE. THUS, TAX DEDUCTIO N AT SOURCE MECHANISM COULD NOT BE PUT INTO PRACTICE UNTIL IDENTITY OF TH E PERSON IN WHOSE HANDS IT WAS INCLUDIBLE AS INCOME, CAN BE ASCERTAINED. IN VI EW OF THE ABOVE, THE ASSESSEE SUBMITTED THAT WITHHOLDING TAX PROVISIONS UNDER THE ACT WOULD NOT BE APPLICABLE ON THE YEAR END PROVISIONS IN THE PRESENT CASES. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASS ESSEE AND FURTHER RELYING AND FOLLOWING THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08, DATED 31-10-2012, DECIDED THE ISSUE IN FAOVUR OF THE ASSESSEE, THEREBY DELETING THE DEMAND S RAISED BY THE AO ON THIS ISSUE. THE REVENUE, THUS, HAS COME IN APPEA L BEFORE US IN RELATION TO ABOVE ISSUE. 6. AT THE OUTSET, LD. AR OF THE ASSESSEE HAS STATED THAT THE ISSUE OF NON-DEDUCTION OF TAX ON YEAR-END AND PROVISION IS N OT INVOLVED, SO FAR AS THE A.Y.2004-05 AND 2005-06 ARE CONCERNED. HE, HOWE VER, HAS STATED ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 4 THAT THIS ISSUE IS INVOLVED IN THE ASSESSMENT YEAR 2006-07 TO A.Y.2009- 2010. BUT THE DEPARTMENT WITHOUT APPLICATION OF MIN D HAS TAKEN THIS ISSUE FOR A.Y.2004-05 AND 2005-06 ALSO, SINCE A COMMON OR DER HAS BEEN PASSED BY THE CIT(A) IN RELATION TO A.Y.2004-05 TO A.Y.2006-07. HE HAS FURTHER INVITED OUR ATTENTION TO THE ORDER OF THE T RIBUNAL DATED 31-10-2012 FOR THE A.Y.2007-08 IN ASSESSEES OWN CASE, WHEREIN THE TRIBUNAL WHILE RELYING UPON ANOTHER DECISION OF COORDINATE BENCH O F THE TRIBUNAL IN THE CASE OF IDBI VS. ITO, 107 ITD 45 (MUM), HAS HELD TH AT SINCE THE PAYEE IS NOT IDENTIFIABLE AT THE TIME OF MAKING OF PROVISION AND FURTHER THE ENTIRE PROVISION HAS BEEN WRITTEN BACK IN THE NEXT YEAR AN D THE ACTUAL AMOUNTS PAID/CREDITED WERE SUBJECTED TO TDS AS AND WHEN THE LIABILITY WAS CRYSTALISED OR THE PAYMENTS WERE MADE AND EVEN WHEN THE ASSESSEE HIMSELF HAD DISALLOWED THE ENTIRE AMOUNT IN THE COM PUTATION OF INCOME UPON WHICH NO TDS WAS DEDUCTED, IN THAT EVENT PROCE EDING U/S.201(1) AND THE LEVY OF INTEREST U/S.201(1A) WAS NOT JUSTIF IED. RELEVANT OBSERVATION MADE BY THE TRIBUNAL FOR THE SAKE OF CO NVENIENCE ARE REPRODUCED AS UNDER :- 11. IN VIEW OF THE ABOVE DECISION OF COORDINATE BEN CH, SINCE THE PAYEE IS NOT IDENTIFIABLE IN THIS CASE ALSO AT THE TIME OF MAKING PROVISION, NO TDS NEED TO BE MADE ON THE ABOVE AMOU NT. FURTHER THE ENTIRE PROVISION HAS BEEN WRITTEN BACK IN THE N EXT YEAR AND THE ACTUAL AMOUNTS PAID/CREDITED WERE SUBJECTED TO TDS AS PER THE DETAILED STATEMENTS FILED BEFORE THE AUTHORITIES ON WHICH THERE IS NO DISPUTE. THEREFORE, ASSESSEE IS FOLLOWING THE PROVI SIONS OF TDS AS AND WHEN THE AMOUNTS ARE PAID/CREDITED TO RESPECTIV E PARTIES. 12. AS ALREADY EXPLAINED AND EVIDENCED FROM THE COM PUTATION OF INCOME AS WELL AS THE ORDERS OF AO IN THE ASSESSMEN T PROCEEDINGS, THE ENTIRE PROVISION HAS BEEN DISALLOWED UNDER SECT ION 40(A)(IA) AND SECTION 40(A)(I). ONCE THE AMOUNT HAS BEEN DISALLOW ED UNDER THE PROVISIONS OF SECTION 40(A)(I) ON THE REASON THAT T AX HAS NOT BEEN DEDUCTED, IT IS SURPRISING THAT AO HOLDS THAT THE S AID AMOUNTS ARE SUBJECT TO TDS PROVISIONS AGAIN SO AS TO DEMAND THE TAX UNDER THE PROVISIONS OF SECTION 201 AND ALSO LEVY INTEREST UN DER SECTION 201(1A). WE ARE UNABLE TO UNDERSTAND THE LOGIC OF A O IN CONSIDERING THE SAME AS COVERED BY THE PROVISIONS O F SECTION 194C TO 194J. ASSESSEE AS STATED HAS ALREADY DISALLOWED THE ENTIRE AMOUNT IN THE COMPUTATION OF INCOME AS NO TDS HAS B EEN MADE. ONCE AN AMOUNT WAS DISALLOWED UNDER SECTION 40(A)(I )/(IA) ON THE BASIS OF THE AUDIT REPORT OF THE CHARTERED ACCOUNTA NT, THE SAME ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 5 AMOUNT CANNOT BE SUBJECT TO THE PROVISIONS OF TDS U NDER SECTION 201(1) ON THE REASON THAT ASSESSEE SHOULD HAVE DEDU CTED THE TAX. IF THE ORDER OF AO WERE TO BE ACCEPTED THEN DISALLO WANCE UNDER SECTION 40(A)(I) AND 40(A)(IA) CANNOT BE MADE AND P ROVISIONS TO THAT EXTENT MAY BECOME OTIOSE. IN VIEW OF THE ACTUAL DIS ALLOWANCE UNDER SECTION 40(A)(I) BY ASSESSEE HAVING BEEN ACCEPTED B Y AO, WE ARE OF THE OPINION THAT THE SAME AMOUNT CANNOT BE CONSI DERED AS AMOUNT COVERED BY THE PROVISIONS OF SECTION 194C TO 194J SO AS TO RAISE TDS DEMAND AGAIN UNDER SECTION 201 AND LEVY O F INTEREST UNDER SECTION 201(1A). THEREFORE, ASSESSEES GROUND ON THIS ISSUE ARE TO BE ALLOWED AS THE ENTIRE AMOUNT HAS BEEN DIS ALLOWED UNDER THE PROVISIONS OF SECTION 40(A)(I)/(IA) IN THE COMP UTATION OF INCOME ON THE REASON THAT TDS WAS NOT MADE. FOR THIS REASO N ALONE ASSESSEES GROUNDS CAN TO BE ALLOWED. CONSIDERING T HE FACTS AND REASONS STATED ABOVE ASSESSEES GROUNDS ARE ALLOWED . 13. ASSESSEE HAS RAISED ONE MORE CONTENTION THAT IN TEREST UNDER SECTION 201(1A) SHOULD BE LEVIED TILL THE DATE OF P AYMENT AND NOT TILL THE DATE OF ORDER. ANYHOW THIS ISSUE BECAME ACADEMI C IN NATURE, AS WE HAVE ALREADY HELD THAT DEMAND UNDER SECTION 201 CANNOT BE RAISED ONCE THE ENTIRE AMOUNT HAS BEEN DISALLOWED I N THE COMPUTATION OF INCOME UNDER SECTION 40(A)(I) AND 40 (A)(IA). IN VIEW OF THIS EVEN THOUGH THE CONTENTION IS CORRECT BEING A LEGAL ISSUE, THERE IS NO NEED FOR ADJUDICATING THE MATTER AS THE GROUNDS RAISED HAVE BEEN HELD IN FAVOUR OF ASSESSEE. AO IS DIRECTE D TO DELETE THE SAID DEMAND SO RAISED. APPEAL IS ACCORDINGLY ALLOWE D. 7. SINCE THE FACTS AND ISSUES INVOLVED ARE IDENTICA L IN THE APPEALS UNDER CONSIDERATION, HENCE, RESPECTFULLY FOLLOWING THE ABOVE FINDINGS OF THE TRIBUNAL GIVEN IN ASSESSEES OWN CASE, THE GROU NDS NO.1 TO 3 IN THE APPEALS OF THE REVENUE RELATING TO DISALLOWANCE MAD E ON ACCOUNT OF NON- DEDUCTION OF TDS ON YEAR-END AND PROVISION ARE HERE BY DISMISSED. 8. GROUND NOS.4 TO 8 ARE RELATING TO NON-DEDUCTION OF TAX AT SOURCE ON PURCHASE OF TRADED GOODS AND PACKING MATERIAL. WE F IND THAT THIS ISSUE IS ALSO COVERED BY THE DECISION OF TRIBUNAL IN ASSESSE ES OWN CASE FOR THE ASSESSMENT YEAR 2007-08, WHEREIN THE TRIBUNAL HAS D ECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE OBSERVING AS UNDER :- 14. AS BRIEFLY STATED ABOVE, AO RAISED DEMAND ON 1. PURCHASE OF TRADED GOODS, 2.PURCHASE OF PACKING MATERIAL AND 3. CLINICAL TRIALS. THE ORDER OF THE CIT (A) ON THE THREE ISSUES ARE AS UNDER: 1. FINISHED/TRADED GOODS: ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 6 11. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, VARIOUS AGREEMENTS WITH THIRD PARTY, SUBMISSION AND LEGAL P ROPOSITIONS MADE BY THE APPELLANT. FROM THE AGREEMENT IT IS CLE AR THAT THE ASSESSEE HAS EXERCISED RIGHT FOR QUALITY SPECIFICAT ION AND QUALITY CONTROL AS AGREED BY THE THIRD PARTY. THIS IS COMMO N PRACTICE IN PHARMA INDUSTRIES, WHEREIN THE PURCHASER OF TRADED GOODS PURCHASES GOODS ONLY WHEN IT IS UP TO THEIR QUALITY REQUIREMENT. FURTHER FROM THE AGREEMENT IT IS CLEAR THAT ALL OTH ER RIGHT AND OBLIGATION IS WITH THE SELLER OF TRADED GOODS AND T HE PROPERTY IN GOODS PASSES AFTER IT IS DELIVERED TO THE DOOR STEP OF THE APPELLANT. IT IS ALSO A FACT THAT NO RAW MATERIAL IS SUPPLIED BY THE APPELLANT (PURCHASER) TO THE MANUFACTURERS. THE MANUFACTURING ACTIVITIES ARE ALSO CARRIED OUT BY THE MANUFACTURERS IN THEIR OWN PREMISES. THE MANUFACTURERS HAVE ALSO PAID EXCISE DUTIES VAT/SALE S TAX AS APPLICABLE ON THE GOODS MANUFACTURED/SOLD. AFTER GO ING THROUGH THE AGREEMENT AND ITS VARIOUS CLAUSES AND FACTS OF THE CASE IN ITS ENTIRETY, IT IS CONCLUDED THAT THE CONTRACT WITH TH E VARIOUS PARTIES ARE CONTRACT FOR PURCHASES OF TRADED GOODS AND NOT OF T HE WORKS CONTRACT. I HAVE ALSO NOTED THAT THE ABOVE ISSUE IS COVERED IN THE FAVOUR OF THE APPELLANT BY THE DECISION OF MUMBAI T RIBUNAL IN CASE OF NOVARTIS HEALTHCARE PVT. LTD. V. ITO 29 SOT 425 (MUM) AND GLENMARK PHARMACEUTICALS LTD. V. ITO (TDS) 30 SOT 1 9 (MUM) WHEREIN THE HON'BLE TRIBUNAL ON IDENTICAL FACTS HAS HELD THAT TDS IS NOT REQUIRED TO BE DEDUCTED ON PURCHASE OF TRADED G OODS. BASED ON THE ABOVE, I AM OF THE OPINION THAT THE PR OVISIONS OF CHAPTER XVIIB OF THE ACT CANNOT BE SAID TO BE APPL ICABLE ON PURCHASE OF FINISHED/TRADED GOODS ACCORDINGLY, THER E IS NO DEFAULT ON THE PART OF TILE APPELLANT IN COMPLYING WITH THE PROVISIONS OF CHAPTER XVII-B OF THE ACT WHILE MAKING PAYMENT FOR PURCHASE OF FINISHED/TRADED G0O.DS WITHOUT DEDUCTING TAX AT SOU RCE THIS GROUND OF APPEAL IS ALLOWED IN FAVOUR OF THE APPELLANT. 2.PURCHASE OF PACKING MATERIAL: 13. I HAVE PERUSED THE FACTS OF THE CASE AS WELL A S THE SUBMISSIONS OF THE APPELLANT. I AM OF THE OPINION THAT THIS GRO UND IS COVERED IN FAVOUR OF THE APPELLANT BY THE DECISION OF JURISDIC TIONAL HIGH COURT IN THE CASE OF BDA LTD VS. INCOME TAX OFFICER (TDS) 28 1 ITR 99 (BOM.) WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT TDS IS NOT REQUIRED TO BE DEDUCTED UNDER SECTION 19CC ON PURCH ASE OF PACKING MATERIAL. BASED ON THE ABOVE, I AM OF THE OPINION THAT THE PR OVISIONS OF CHAPTER XVII-B OF THE ACT CANNOT BE SAID TO BE APPL ICABLE ON PURCHASE OF PACKING MATERIAL. ACCORDINGLY, THERE IS NO DEFAULT ON THE PART OF THE APPELLANT IN COMPLYING WITH THE PROVISI ONS OF CHAPTER XVII-B OF THE ACT WHILE MAKING PAYMENT FOR PURCHASE PACKING MATERIAL WITHOUT DEDUCTING TAX AT SOURCE. IN THE RE SULT THIS GROUND IS ALLOWED. ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 7 3.CLINICAL TRIALS 15. I HAVE GONE THROUGH THE FACTS OF THE CASE AND SUBMISSIONS OF THE APPELLANT. AS FAR AS THE APPELLANTS CONTENTION THAT THE ABOVE EXPENDITURE OF `.11,35,14,000/- INCLUDES AN AMOUNT OF `.3,66,90,204/- ON WHICH TDS IS NOT DEDUCTIBLE ON T HE FOLLOWING GROUNDS: A) PURCHASE OF VARIOUS MATERIALS. B) EXPENDITURE ON FOOD AND TRAVELLING C) AVAILABILITY OF TAX EXEMPTION CERTIFICATE D) PAYMENT OF REGULATORY FEES. PRIMA FACIE TDS IS NOT DEDUCTIBLE ON ALL THE FOUR I TEMS MENTIONED ABOVE. HOWEVER, THIS PARTICULAR BREAK UP HAS NOT BE EN PROVIDED TO AO. I THEREFORE, DIRECT AO TO VERIFY THE ABOVE BREA K UP GIVEN BY THE APPELLANT. IF THE ABOVE BREAK UP OF EXPENDITURE GIV EN BY THE APPELLANT IS FOUND TO BE CORRECT, THEN I HOLD NO TD S IS REQUIRED TO BE DEDUCTED ON THE ABOVE PAYMENTS. AO IS DIRECTED ACCO RDINGLY. WITH REGARD TO BALANCE EXPENDITURE AMOUNT OF `.7,68 ,21,907/- IS CONCERNED, THE APPELLANT HAS DEDUCTED TDS OF `.42,4 5,914/- ON THE SAME. HOWEVER, IT IS SEEN THAT PAYMENT IN QUESTION IS IN THE NATURE OF PROFESSIONAL FEES. IN ORDER TO CARRY OUT CLINIC TRIAL, THE PERSON WHO CARRIES OUT THE TRIAL MUST POSSESS MEDICAL QUALIFIC ATION AND THE PERSON SHOULD BE HIGHLY QUALIFIED AND SHOULD POSSES S TECHNICAL EXPERTISE. THEREFORE, PAYMENT MADE IN THIS RESPECT IS NOTHING BUT FEES FOR PROFESSIONAL/TECHNICAL SERVICES. ACCORDING LY, I HOLD THAT THE ABOVE PAYMENT OF `.7,68,21,907/- IS A PAYMENT TO PR OFESSIONAL FEES, THEREFORE, TAX SHOULD HAVE BEEN DEDUCTED AS PER PRO VISIONS OF SECTION 194J. THEREFORE, THE ACTION OF AO IS CONFIR MED SO FAR AS THE APPLICABILITY OF SECTION 194J IS CONCERNED. HOWEVER , AO IS DIRECTED TO CALCULATE TDS LIABILITY UNDER SECTION 194J. WHAT EVER TDS LIABILITY COMES UNDER SECTION 194J CREDIT FOR TAXES PAID OF ` .42,45,914/- IS TO BE ALLOWED AND BALANCE AMOUNT NEEDS TO BE RECOVERED FROM THE APPELLANT. THIS GROUND OF APPEAL IS DISPOSED OFF AC CORDINGLY. 15. AFTER CONSIDERING THE RIVAL CONTENTIONS AND PER USING THE ORDER OF THE CIT (A), WE ARE OF THE OPINION THAT THERE IS NO NEED TO DIFFER FROM THE ORDER OF THE CIT (A). THE LEARNED CIT (A) HAS F OLLOWED THE PRINCIPLES ESTABLISHED BY THE HON'BLE HIGH COURT IN THE CASE OF BDA LTD VS. INCOME TAX OFFICER (TDS) 281 ITR 99 (BOM.) AND CIT VS. GLENMARK PHARMACEUTICALS LTD, 324 ITR 199. SINCE TH E ISSUES ARE CRYSTALLIZED IN FAVOUR OF ASSESSEE BY THE ORDERS OF THE JURISDICTIONAL HIGH COURT, RESPECTFULLY FOLLOWING THE SAME WE AFFI RM THE ORDER OF THE CIT (A). 9. RESPECTFULLY FOLLOWING THE ABOVE FINDINGS OF THE TRIBUNAL IN THE OWN CASE OF ASSESSEE, WE AFFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 8 10. GROUND NOS.9&10 RELATE TO THE LEVY OF INTEREST U/S.201(1A). SINCE WE HAVE DISMISSED THE GROUND OF REVENUE WITH REGARD TO DISALLOWANCE MADE ON ACCOUNT OF NON-DEDUCTION OF TDS ON THE ABOV E ISSUES, THEREFORE, NO INTEREST IS REQUIRED TO BE LEVIED U/S .201(1A) OF THE ACT. 11. NOW, COMING TO THE CROSS OBJECTION OF THE ASSES SEE, THE ASSESSEE IN HIS CROSS OBJECTION HAS STATED THAT TWO SEPARATE ORDERS WERE PASSED BY THE AO U/S.201 R.W.S.40(A)(IA) RELATING TO A.Y.2009 -2010. THE FIRST ORDER WAS DATED 25-3-2011 AND THE SECOND ORDER WAS DATED 29-3-2011. THE CONTENTION OF LD. AR HAS BEEN THAT THE ISSUE AND TH E AMOUNTS INVOLVED RELATING TO NON-DEDUCTION OF TDS AT SOURCE ON THE Y EAR-END PROVISIONS WAS THE SAME AND, HENCE, THE SUBSEQUENT ORDER DATED 29-3-2011 WAS NOT SUSTAINABLE AND WAS VOID AB INITO . LD. CIT(A) REJECTED THE ABOVE CONTENTION OF ASSESSEE HOLDING THAT THERE WAS DIFFE RENCE IN THE AMOUNTS MENTIONED IN THE ORDER DATED 25-3-2011 AND IN THE O RDER DATED 29-3-2011 ON WHICH THE TDS WAS REQUIRED TO BE DEDUCTED AS PER THE AO. THE LD. AR HAS SUBMITTED THAT THE SAID DIFFERENCE WAS ON ACCOU NT OF SHORT DEDUCTION OF TDS, WHICH WAS CONSIDERED BY THE AO AS A PART OF THE YEAR END PROVISIONS IN THE ORDER DATED 29-3-2011 U/S.201(1) R.W.S.40(A)(IA) OF THE ACT AND THE SAME WAS CONSIDERED WHILE PASSING THE O RDER DATED 25-3- 2011 U/S.201(1)/201(1A) OF THE ACT. THEREFORE, TWO SEPARATE ORDERS COULD NOT HAVE BEEN PASSED IN THE CASE OF ONE ASSESSEE ON THE SAME ISSUE. 12. WE HAVE ALREADY DELETED THE ADDITIONS MADE BY T HE AO U/S.201(1) R.W.S.40(A)(IA) AND IN VIEW OF THIS, SINCE BOTH THE APPEALS OF REVENUE FOR A.Y.2009-2010 HAVE BEEN DISMISSED, HENCE, CROSS OBJ ECTION ITA NOS.5053-5057/13 ITA NO.2450/14 & CO.NO.141/15 9 FILED BY THE ASSESSEE, IS RENDERED ACADEMIC IN NATU RE AND IS HEREBY DISMISSED AS THE SAME HAVING BECOME INFRUCTUOUS AT THIS STAGE. 13. IN THE RESULT, APPEALS OF THE REVENUE AS WELL A S CROSS OBJECTION OF THE ASSESSEE I.E. CO.NO.141/MUM/2015 ARE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25/05/20 16. SD/- SD/- ( . . ) (R.C.SHARMA ) ( ) (SANJAY GARG) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED 25/05/2016 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//