DDIT (IT) 4(1), MUMBAI V. MSM SATELLITE (SINGAPORE) PTE . LTD, MUMBAI

ITA 510/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6346 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-11-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARESH K BALODIA
• Assessee Lawyers: R R VORA
• Keywords: Double taxation relief; Non-deduction of tax
• Section: 244A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 505,509 AND 510/MUM/2010 (ASSESSMENT YEAR 2007-08) DDIT(IT)4(1), 133 SCINDIA HOUSE, BALLARD PIER, MUMBAI-400038 . APPELLANT VS MSM SATELLITE (SINGAPORE) P LTD, C/O S R BATLIBOI AND CO. CAS EXPRESS TOWER, 18 TH FLOOR, NARIMAN POINT MUMBAI-400021 PAN:AABCS9229H .. RESPONDENT ITA NO. 506, 507 AND 508/MUM/2010 (ASSESSMENT YEAR 2006-07) DDIT(IT)4(1), . APPELLANT V/S MSM SATELLITE (SINGAPORE) P LTD, RESPONDENT ASSESSEE BY : SHRI R R VORA REVENUE BY : SHRI NARESH K BALODIA O R D E R PER BENCH THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST T HE DIFFERENT ORDERS OF CIT(A) DATED 28.10.2009 ARISIN G FROM THE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 2 DIFFERENT ORDERS PASSED BY THE AO U/S 251/195 OF THE INCOME TAX ACT FOR GRANTING THE REFUND IN RESPECT OF TAX D EDUCTED BY THE ASSESSEE ON ACCOUNT OF PAYMENT ON VARIOUS DATES TO GLOBAL CRICKET V CORPORATION PVT LIMITED (IN SHOR T GCC) FOR THE ASSESSMENT YEARS 2006-07 AND 2007-08. 2. THE REVENUE HAS RAISES FOLLOWING COMMON GROUNDS IN THESE APPEALS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT TH E ASSESSEE IS ENTITLED TO INTEREST ON REFUND IN ACCORDANCE WITH SECTION 244A OF THE IT ACT WITHOUT APPRECIATING THAT UNDER THE PROVISIONS OF THE ACT , REFUND CAN ONLY BE MADE TO THE EARNER OF THE INCOME AND IN THE PRESENT CASE REFUND WAS BEING MADE TO TH E DEDUCTOR OF THE TAX AND NOT TO THE DEDUCTEE OR WHOS E BEHALF TAX HAD BEEN DEDUCTED AT SOURCE: 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAD FAILED TO APPRECIATE THAT IT IS ONLY UNDER THE BENEFICIAL CIRCULAR NO.7 OF 2 007 DATED 23.10.2007 OF CBDT APPLICABLE IN THE PRESENT CASE UNDER REFUND TO A DEDUCTOR OF TAX U/S 195 COUL D BE ALLOWED AND EVEN THIS BENEFICIAL CIRCULAR DOES N OT PROVIDE FOR PAYMENT OF INTEREST U/S 244A TO THE DEDUCTOR OF TAX 3. BRIEF FACTS OF THE CASE LEADING TO THE CONTROVER SY ARE THAT THE ASSESSEE IS A SINGAPORE BASED COMPANY, ENGAGED IN THE BUSINESS OF ACQUIRING TELEVISION PROGRAMS, MOTION P ICTURES AND SPORES EVENTS AND EXHIBITING THE SAME ON ITS TELEV ISION CHANNELS FROM SINGAPORE. DURING THE PERIOD FROM MARCH 2002 TO OCTOBER 2003 UNDER THE AGREEMENT ENTERED I NTO WITH ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 3 GCC(RESIDENT OF SINGAPORE), THE ASSESSEE MADE PAY MENTS FOR OBTAINING A RIGHT TO BROADCAST VARIOUS CRICKET MATCHES IN VARIOUS COUNTRIES INCLUDING INDIA. THE ASSESSEE DI D NOT WITHHELD ANY TAX FROM THE PAYMENTS MADE TO CGG. TH E REVENUE BY PASSING AN ORDER DATED 19.2.2004 HELD T HAT THE PAYMENTS MADE TO GCC ARE IN THE NATURE OF ROYALTY AND HENCE LIABLE TO TAX IN INDIA, THEREFORE, HELD THE A SSESSEE AS DEFAULTER FOR NON DEDUCTION OF TAX AT SOURCE. 4. ON APPEAL, THE CIT(A) HELD THAT THE PAYMENTS BY THE ASSESSEE TO GCC ARE NOT LIABLE TO TAX IN INDIA. 5. ON FURTHER APPEAL THIS TRIBUNAL HAS UPHELD THE ORDER OF THE CIT(A). 6. IN PURSUANCE OF THE TRIBUNAL ORDER, THE ASSESSEE APPLIED TO THE AO FOR NIL WITHHOLDING TAX CERTIFICATE U/S 1 95(2). THE AO DIRECTED THE ASSESSEE TO WITHHOLD TAX @10.96% IN RESPECT OF PAYMENTS MADE TO GCC. THE ASSESSEE ACC ORDINGLY DEDUCED THE TAX AT SOURCE. 7. AGGRIEVED BY THE ORDER OF THE AO, THE MATTER CA RRIED TO CIT(A) AND THE CIT(A) BY FOLLOWING ITS OWN ORDER F OR THE ASSESSMENT YEAR 2003-04 HELD THAT THE ASSESSEE IS N OT LIABLE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 4 TO WITHHOLD TAX AT SOURCE IN RESPECT OF PAYMENTS MA DE TO GCC. 8. IN SECOND ROUND BEFORE THE TRIBUNAL, THIS TRIBUN AL HAS CONFIRMED THE ORDER PASSED BY THE LEARNED CIT(A). 9. WHILE GIVING EFFECT TO THE FIRST APPELLATE ORDER , THE ASSESSEE WAS GIVEN REFUND OF THE TAXES WITHHOLD BUT WITHOUT ANY INTEREST AS PER THE PROVISIONS OF SECTION 244A. AGAINST THIS ORDER THE ASSESSEE APPEALED BEFORE THE CIT(A) WHO HELD THAT THE ASSESSEE IS ENTITLED TO GET INTEREST ON R EFUND U/S 244A. 10. BEFORE US, THE LEARNED DR HAS SUBMITTED THAT TH E AMOUNT DEDUCTED BY THE ASSESSEE U/S 195 AND DEPOSITED WITH THE DEPARTMENT WAS VOLUNTARILY AND NOT AS PER ANY ASSES SMENT ORDER OR DEMAND NOTICE U/S 156. SINCE THE REFUND W AS MADE AS PER THE ADMINISTRATIVE ORDER BY WAY OF ADMINISTR ATIVE MEASURE AND IN VIEW OF THE CIRCULAR NO. 7/2007 DATE D 23.10.2007, THE SAME CANNOT BE TREATED AS REFUND OF TAX U/S 237 OR U/S 240 OF THE ACT. THE LEARNED DR HAS R EFERRED AND RELIED UPON THE CIRCULAR NO.769 DATED 6.08.1998 AND CIRCULAR NO.790 DATED 20.4.2000 AND 7/2007 DATED 23.10.2007 AND SUBMITTED THAT THE REFUND HAS BEEN GRANTED TO THE A SSESSEE WHO IS A RESPONSIBLE FOR DEDUCTION OF TAX AT SOURCE FOR THE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 5 PAYMENT TO THE NON-RESIDENT ONLY UNDER THE CIRCULAR S AND NOT UNDER ANY PROVISIONS OF THE INCOME TAX ACT. HE H AS REFERRED THE PARAGRAPH 3 OF CIRCULAR NO.769 DATED 6.08.1998 AND SUBMITTED THAT THE REFUND TO THE PERSON WHO IS R ESPONSIBLE FOR DEDUCTING THE TAX AT SOURCE IS INDEPENDENT O F THE PROVISIONS OF THE ACT AND WITH PRIOR APPROVAL OF THE CHIEF COMMISSIONER OF INCOME TAX CONCERNED. SIMILARLY, THE LEARNED DR HAS REFERRED PARAGRAPH 6 OF THE CIRCULAR NO.790 DATED 20.4.2000 AND SUBMITTED THAT THE AMOUNT PAID INTO GOVERNMENT ACCOUNT IN SUCH CASES NO LONGER TAX AND THEREFORE NO INTEREST U/S 244A IS ADMISSIBLE ON THE REFUND T O BE GRANTED IN ACCORDANCE WITH THIS CIRCULAR. THE LEARNED DR H AS THEN REFERRED CLAUSE F OF CIRCULAR NO.7 OF 2007 DATED 23.10.2007 AND SUBMITTED THAT REFUND TO THE PERSON MAKING THE PAYMENT UNDER SECTION 195 HAS BEEN ALLOWED WHEN THAT INC OME DOES NOT ACCRUED TO THE NON-RESIDENT, THE AMOUNT PAID IN TO THE GOVERNMENT ACCOUNT IN SUCH CASES IS NO LONGER TAX. THEREFORE NO INTEREST U/S 244A IS ADMISSIBLE ON THE REFUND TO BE GRANTED IN ACCORDANCE WITH THIS CIRCULAR NO.769 OR CIRCULA R NO. 790. THUS, THE LEARNED DR HAS SUBMITTED THAT WHEN THERE WAS NO NOTICE OF DEMAND AND PAYMENT MADE U/S 195 WHICH WAS FOUND AS THE INCOME DOES NOT ACCRUED TO THE NON-RESIDENT OR THE INCOME ACCRUING NO TAX DUE THEN THE AMOUNT SO PAID INTO THE GOVERNMENT ACCOUNT IS NOT A TAX AND THEREFORE NO IN TEREST CAN ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 6 BE ALLOWED U/S 244A HE HAS RELIED UPON THE DECISIO N OF THIS TRIBUNAL IN THE CASE OF GODREJ INDUSTRIES LTD V/ S DCIT REPORTED IN 8 SOT 417(MUMBAI) AND THE DECISION OF THE HON. MADHYA PRADESH HIGH COURT IN THE CASE OF UNIVERSA L CABLES LTD V/S CIT REPORTED IN (2009) 26 DTR (MP) 98.. 11. ON THE OTHER HAND, THE LEARNED AR HAS SUBMITTED THAT THE DECISIONS RELIED UPON BY THE LEARNED DR ARE DISTINGUISHABLE ON FACTS. HE SUBMITTED THAT IN T HOSE CASES THE TAX WAS DEPOSITED VOLUNTARILY BY THE TAX DEDUCT OR AND THEN REFUND WAS GRANTED. HE SUBMITTED THAT THE HON. HI GH COURT AND THE TRIBUNAL HELD THAT THE ASSESSEE IS NOT ENT ITLED TO GET INTEREST U/S 244A BECAUSE THE TAX WAS DEDUCTED AND DEPOSITED VOLUNTARILY. THE LEARNED AR HAS FURTHER SUBMITTED THAT THE TAX WAS PAID BY THE ASSESSEE IN VIEW OF THE ORDER P ASSED BY THE AO U/S 195(2) AND NOT VOLUNTARILY AND ON THIS COUNT, THESE DECISIONS SUPPORT THE CASE OF THE ASSESSEE. REFERRI NG TO THE DECISION OF THE MUMBAI BENCH OF THIS TRIBUNAL IN T HE CASE OF STAR CRUISE (2009-TIOL-351-ITAT-MUMBAI), IT IS SUB MITTED THAT THIS TRIBUNAL HAS DISTINGUISHED THE FACTS O F THE CASE OF GODREJ INDUSTRIES LTD (SUPRA) ON THE GROUND THAT TH E TAX PAID PURSUANCE TO THE ORDER U/S 195(2) IS NOT VOLUNTARY PAYMENT OF TAX BUT COLLECTED AS PER THE PROVISIONS OF LAW. HEN CE, REFUND OF TAXES PAID PURSUANT TO ORDER U/S 195(2) ARE AS PER THE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 7 PROVISIONS OF THE ACT AND INTEREST WILL BE ALLOWED ON SUCH REFUND U/S 244A(1)(B). 12. THE LEARNED AR SUBMITTED THAT THE PROVISIONS O F SECTION 240 PROVIDES THAT WHERE AN ORDER IS PASSED IN APPEA L, OR OTHER PROCEEDINGS UNDER THE ACT, THE AO IS DUTY BOUND TO REFUND THE AMOUNT DUE TO THE ASESEEE EVEN WITHOUT THE ASSE SSEE MAKING ANY CLAIM IN THAT BEHALF. HE ALSO SUBMITT ED THAT THE ASSESSEE IS ALSO ENTITLED TO INTEREST ON SUCH REFUN D UNDER THE PROVISIONS OF SECTION 244A. ONCE THE PROVISIONS OF SECTION 240 ARE APPLICABLE TO THE AMOUNT PAID BY THE ASSESS EE AS TAX, THE PROVISIONS OF SECTION 244A APPLIES AUTOMATICALL Y. 13. THE LEARNED AR SUBMITTED THAT THE PROVISIONS OF SECTION 240 STATES THAT REFUND IS DUE TO ASSESSEE AND HAS NOT MAKE ANY DISTINCTION BETWEEN THE TAX DEDUCTOR OR RECIPI ENT OF INCOME. THUS, WHEN THE ORDER U/S 195(2) IS PASSED TREATING MSMS AS ASSESSEE THEN IT IS ENTITLED TO REFUND U /S 240 WHICH IS CORRECTLY GRANTED BY THE AO. THEREFORE, THE ASSESSEE IS ENTITLED FOR INTEREST U/S 244A(1)(B) OF THE ACT. 14. THE LEARNED AR SUBMITTED THAT THE PROVISIONS OF SECTION 244A(1) FURTHER PROVIDES THAT IN ADDITION TO REFUN D OF ANY AMOUNT BECOMING DUE TO THE ASSESSEE UNDER THE ACT, THE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 8 ASSESSEE IS ALSO ENTITLED TO RECEIVE INTEREST ON SU CH REFUND WHICH HAVE BECOME DUE TO THE ASSESSEE UNDER THE ACT . HE SUBMITTED THAT THE REFUND IN THE INSTANT CASE WAS DETERMINED ON ACCOUNT OF THE ORDER GIVING EFFECT TO THE ORDER PASSED BY THE CIT(A). 15. THE LEARNED AR SUBMITTED THAT CLAUSE (A) OF SE CTION 244A(1) COVERS THE INSTANCES OF PAYMENT OF SUMS OF MONEY BY WAY OF ADVANCE TAX OR TDS, CLAUSE (B) OF SECTION 2 44(1) COVERS ALL OTHER CASE WHEREIN REFUND HAS BECOME DUE TO THE ASSESSEE. HE SUBMITTED THAT THE PHRASE USED IN CLA USE (B) OF SECTION 244A(1) IS IN ANY OTHER WHERE ASSESSEES CASE FALLS. SIMILARLY, ORDER U/S 195(2) IS SUFFICIENT TO RAISE TAX DEMAND ON ASSESSEE AND SEPARATE NOTICE U/S 156 IS NOT NECES SARY TO MAKE PAYMENT OBLIGATORY BY THE ASSESSEE. HE SUBMIT TED THAT THE CONTENTION ABOUT NOTICE OF DEMAND U/S 156 WAS RAISED BEFORE THE TRIBUNAL WHILE DISCUSSING THE CASE OF TATA CHEMICAL LTD V/S DCIT (16 SOT 481) (MUM TRIB), HE I NVITING OUR ATTENTION TO THE FINDINGS OF THE TRIBUNALS OR DER PARAGRAPH 22 AND SUBMITTED THAT THE TRIBUNAL OBSERVED THAT THE ORDER U/S 195(2) OF THE ACT HAS BEEN PASSED UNDER THE PRO VISIONS OF THE ACT AND ANY NOTICE OF DEMAND FOR THE SAID AMO UNT DUE PURSUANT TO ORDER PASSED UNDER SECTION 195(2) IS BO UND TO BE ISSUED U/S 156 OF THE IT ACT. IN ANY EVENT, IF AS SESSEE DOES NOT COMPLY BY ORDER U/S 195(2), IT WOULD BE TREATED AS ASESEEE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 9 IN DEFAULT U/S 201(1) OF THE ACT AND WOULD BE LIAB LE TO PAY WITH INTEREST. 16. THE LEARNED AR SUBMITTED THAT AS PER THE CBD T CIRCULARS AND THE DECISION OF THIS TRIBUNAL IN VARI OUS CASE, IT IS HELD THAT THE ASESEEE IS ENTITLED TO INTEREST ON R EFUND AS PER THE PROVISIONS OF INCOME TAX ACT, 1961. THEREFORE, HE SUBMITTED THAT THE ASSESSEE IS ENTITLED TO RECEIVE INTEREST UNDER SECTION 244A(1)(B) ON AMOUNT DEPOSITED PURSUA NT TO ORDER PASSED UNDER SECTION 195(2), WHICH IN-TURN HA D BECOME DUE TO THE ASSESS BECAUSE OF THE ORDER PASSED IN AP PEAL AGAINST THE SAID ORDER U/S 195(2). IN SUPPORT OF HIS CONTENTION, HE RELIED UPON THE FOLLOWING DECISIONS : I) ITO V/S DELHI DEVELOPMENT AUTHORITY (2001) 252 I TR 772 (SC) II) M/S STAR CRUISES (INDIA) TRAVEL SERVICES P LTD VS DDIT, MUMBAI (DATED: MARCH 24, 2009) . 2009 - TIOL - 351 - ITAT - MUM . III) ADDL DIT(IT) V.M/S RELIANCE INFOCOMM LTD. [ 2009 - TIOL -. 602 - ITAT - MUM ]. IV) TATA CHEMICAL LTD V/S DCIT (16 SOT 481) (MUM TRIB), V) BHARAT PETROLEUM CORPORATION LTD. VS. JDIT (IT), 14 SOT 307. VII) SANDVIK ASIA LTD, V. ... CIT, (2006) 280 ITR 643 (SC) VIII) CIT V/S GOODYEAR INDIA LTD-(249 ITR 527(D EL HC) IX) CIT V/S NARENDRA DOSHI 254 ITR 606 (SC) X) ADDL. CIT V/S GRINDWELL NORTON LTD 1032 TTJ 265 (BOM TRIB) XI) DCIT V/S STATE BANK OF TRAVENCOR 106 ITD 308 ( COACHTRIB) 17. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RE LEVANT RECORD. WE HAVE ALSO GIVEN OUR THOUGHT TO THE VARI OUS CASE LAWS RELIED UPON BY EITHER PARTIES. WE FIND THAT T HE ASSESSEE COMPANY MADE PAYMENTS DURING THE FINANCIAL YEARS RE LEVANT TO ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 10 THE ASSESSMENT YEARS UNDER CONSIDERATION. SINCE I N THE EARLIER YEAR I.E. FOR THE AY 2003-04, THE ASSESSEE WAS TREATED AS ASSESSEE IN DEFAULT FOR DEDUCTION OF TDS BY AN O RDER DATED 19.02.2004 PASSED UNDER SECTION 201(1) AND 201(1A) OF THE ACT AND THOUGH THE SAID ISSUE FOR THE ASSESSMENT YE ARS 2003- 04, 2006-07 AND 2008-09 WAS SUBSEQUENTLY DECIDED BY THIS TRIBUNAL IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 25.06.2010 WHICH WAS REPORTED IN 43 DTR 311, THE ASSESSEE MOV ED AN APPLICATION U/S 195(2) BEFORE THE AO FOR CERTIFIC ATE IN RESPECT OF PAYMENT TO BE MADE TO THE GCC IS NOT TAXABLE IN INDIA. THE ASSTT. DIRECTORS OF INCOME TAX (INTERNATIONAL TAXATION) VIDE ITS ORDER DATED 27.04.2007 PASSED UNDER SECTIO N 195 OF THE IT ACT DIRECTED THE ASSESSEE TO WITHHOLD TAX AT THE RATE OF 10.96% ON THE PAYMENT TO GCC. THEREFORE, THE ASSE SSEE HAS WITHHOLD THE PAYMENT NOT VOLUNTARILY BUT IN PURSUAN CE TO THE ORDER OF THE ADIT OF INCOME TAX (INTERNATIONAL TA XATION) U/S 195. SO FAR AS THE CIRCULARS REFERRED BY THE LEARN ED DR ARE CONCERNED THE BOARD HAS DECIDED THE REFUND TO BE M ADE TO THE PERSON RESPONSIBLE FOR DEDUCTING THE TAX AT SOU RCE IN THE CASES WHERE (A) AFTER THE DEPOSIT OF TAX DEDUCED AT SOURCE UNDER SECTION 195, THE CONTRACT IS CANCELLED AND NO REMITTANCE IS REQUIRED TO BE MADE TO THE FOREIGN COLLABORATOR , (B) THE REMITTANCE IS DULY MADE TO THE FOREIGN COLLABORATOR , BUT THE CONTRACT IS CANCELED AND THE FOREIGN COLLABORATOR R ETURNS THE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 11 REMITTED AMOUNT TO THE PERSON RESPONSIBLE FOR DEDUC TION TAX AT SOURCES, (C) THE TAX DEDUCTED AT SOURCE IS FOUND T O BE IN EXCESS OF TAX DEDUCTIBLE FOR ANY OTHER REASON; AND (D) IN THE CASES WHERE THE TAX IS DEDUCTED AT SOURCES U/S 195 AND PAID IN ONE ASSESSMENT YEAR AND REMITTANCE TO THE FOREI GN COLLABORATOR IS MADE AND/OR REFUNDED TO THE INDIA N COMPANY FOLLOWING CANCELLATION OF THE CONTRACT IN ANOTHER A SSESSMENT YEAR. THUS, IN THE CASES WHERE THE INCOME DOES NOT ACCRUED TO THE NON-RESIDENT THE AMOUNT DEDUCTED AS TAX UNDE R SECTION 195 AND PAID TO THE CREDIT OF THE GOVERNMENT BELONG S TO THE DEDUCTOR UNDER THESE CIRCUMSTANCES, THE BOARD HA S FOUND THAT SINCE THE REFUND WAS TO BE GIVEN ONLY ON A CLA IM BEING MADE BY THE NON-RESIDENCE WHEREAS THE INCOME WERE N OT INCOME AS ACCRUED TO THE NON-RESIDENCE DUE TO THE CANCELLATION OF THE CONTRACT THE AMOUNT DEPOSITED T O THE CREDIT OF THE GOVERNMENT ACCOUNT U/S 195 CANNOT BE SAID TO BE TAXED AND ACCORDINGLY DECIDED THAT THIS AMOUNT CAN BE REF UNDED TO THE DEDUCTOR OF THE TAX WITH THE PRIOR APPROVAL OF THE CHIEF COMMISSIONER OF INCOME TAX CONCERNED. THUS, THE CI RCULAR REFERRED AND RELIED UPON BY THE LEARNED DR DEALS W ITH THE SITUATION WHERE THE TAX DEDUCTED ON THE REMITTANCE MADE TO THE NON-RESIDENT BUT FINALLY NO INCOME HAS ACCRUED TO THE NON- RESIDENCE DUE TO THE CANCELLATION OF THE CONTRACT. IN THE CASE IN HAND, THE DEDUCTION OF TAX IS NOT VOLUNTARILY O N THE PART OF ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 12 THE ASSESSEE BUT AS A RESULT OF THE ORDER PASSED BY THE AO U/S 195 OF THE ACT. THEREFORE, IT IS NOT A CASE OF CA NCELLATION OF CONTRACT AND NON ACCRUAL OF INCOME IN THE HANDS OF THE NON- RESIDENCE SUBSEQUENT TO THE DEDUCTION OF TAX BY THE ASSESSEE ON ITS OWN. THEREFORE, NONE OF THESE CIRCULAR WOU LD HELP THE CASE OF THE REVENUE IN THE PECULIAR FACTS AND CIRC UMSTANCES OF THE CASE OF THE ASSESSEE IN HAND. MOREOVER, WHEN T HE DEDUCTION WAS MADE BY THE ASSESSEE IN PURSUANCE OF THE ORDER OF THE AO PASSED U/S 195 AND THE REFUND WAS M ADE AS A RESULT OF THE ORDER PASSED BY THE E CIT(A), THEREF ORE, THE REFUND IS GRANTED AS A RESULT OF THE ORDER PASSED I N THE APPEALS AND FALLS UNDER THE PROVISIONS OF SECTION 2 40. THUS, WHEN THE REFUND BECOMES DUE UNDER THE PROVISIONS OF IT ACT THEN THE CIRCULARS CANNOT OVERRIDE THE PROVISIONS O F THE STATUE. 18. IN THE CASE OF GODREJ INDUSTRIES LTD V/S DCI T (SUPRA), THIS TRIBUNAL HAS HELD THAT FOR ALLOWING THE INTERE ST U/S 244A THERE MUST BE A NOTICE OF DEMAND U/S 156 AND THE TA X MUST HAVE BEEN PAID IN EXCESS OF DEMAND. SINCE THE DEDU CTION IN THE SAID CASE WAS VOLUNTARY AND NOT AS PER ANY DEMA ND OR ORDERS OF THE TAX AUTHORITIES, THEREFORE, THIS TRIB UNAL HAS DECIDED THAT NO INTEREST IS PAYABLE U/S 244A IN VIE W OF THE BOARDS CIRCULAR NO. 769 AND 790. SIMILARLY, IN TH E CASE OF UNIVERSAL CABLES LTD V/S CIT (SUPRA), THE HON. MAD HYA PRADESH HIGH COURT HAS OBSERVED THAT THE ASSESSEE WAS NOT ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 13 LIABLE TO DEDUCT THE TAX UNDER THE ACT AND IT DID SO ON ITS OWN ON ERRONEOUS IMPRESSION. IT WAS HELD THAT THE ASS ESSEE DOES NOT BECOME THE DEEMED ASSESSEE AND THE REFUND IS NO T UNDER THE ACT. ACCORDINGLY,. THE PROVISIONS OF SECTION 2 44A DOES NOT GET ATTRACTED. SINCE THE FACTS IN THOSE CASES AND THE FACTS IN THE CASE IN HAND ARE DISTINGUISHABLE SPECIFICALLY WHEN THE TAX WAS DEDUCTED BY THE ASSESSEE IN THE CASE IN HAND A S A RESULT OF THE ORDER PASSED UNDER SECTION 195 ;AND NOT VOLU NTARILY OR ERRONEOUSLY, AND REFUND WAS MADE AS PER THE ORDER O F CIT(A), THEREFORE, THE DECISION RELIED UPON BY THE REVENUE ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 19. WE FIND THAT THIS TRIBUNAL IN THE CASE OF DDIT (IT) V/S M/S STAR CRUISES (INDIA) TRAVEL SERVICES PVT LTD REPORTED IN 2009-TIOL-351-ITAT-MUM DATED 24.3.2009 HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE IN PARAGRAPHS 8 AND 9 AS UNDER : 8. IN THE PRESENT CASE, THE ASSESSEE HAS BEEN F OUND ENTITLED TO REFUND IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND SECTION 244A PROVIDES FOR PAYMENT OF INTEREST ON TH E AMOUNT OF REFUND WHICH BECOMES DUE TO THE ASSESSEE UNDER THE ACT. SINCE THE REFUND HAD BECOME DUE TO THE ASSESSEE UNDER THE ACT, WE HAVE NO DOUBT IN OUR MIND TO HOLD THAT THE ASSESSEE IS ENTITLED TO INTEREST UNDER SECTION 244A. NEEDLESS TO MENTION THAT THE INTEREST SO GRANTED IS SUBJECT TO MODIFICATION, AS A RESULT OF ANY APPELLATE ORDERS OR ORDERS OF THE HIGHER AUTHORITIE S IN ACCORDANCE WITH LAW. THE CBDT CIRCULAR NOS. 769 & 7 90 DATED 6.8.98 & 20.4.2000 RESPECTIVELY ARE INAPPLICABLE TO THE FACTS OF THIS CASE. THE SAID CIRCULARS HAVE BEEN ISSUED TO B ENEFIT THE ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 14 PERSONS WHO HAD VOLUNTARILY DEDUCTED THE TAX AT SOU RCE WITHOUT ANY ORDER FROM THE ASSESSING OFFICER AND THE REFUND NOT BECOMING DUE UNDER THE PROVISIONS OF THE ACT. IN TH E PRESENT CASE, THE DY. DIRECTOR OF INCOME TAX HAS PASSED TWO ORDERS UNDER SECTION 201 READ WITH SECTION 201(1A) AND THE PAYMENT WAS MADE TO THE ASSESSEE ON THE DIRECTION OF THE DY . DIRECTOR IN ACCORDANCE WITH LAW. THIS ISSUE WAS CONSIDERED BY T HE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF TATA CHEMICALS LTD. VS. DCIT., (2007) 16 SOT 481(MUM). IN THIS CASE, IT HAS BEEN HELD BY THE TRIBUNAL AS UNDER:- UNDER THE PROVISIONS OF SECTION 195(2), THE ASSESS EE IS EMPOWERED TO MAKE AN APPLICATION TO THE ASSESSING OFFICER FOR NON-DEDUCTION OF TAX ON SUCH SUMS REMITTED TO A NON- RESIDENT WHICH ACCORDING TO THE ASSESSEE ARE NOT SU BJECT TO TAX AT SOURCE. IN VIEW OF THE PROVISIONS OF DTAA BE TWEEN THE TWO COUNTRIES, UNDER THE SAID SUB-SECTION (2) OF SE CTION 195, THE ASSESSING OFFICER IS EMPOWERED TO DETERMINE SUC H SUMS WHICH ARE DEDUCTIBLE OUT OF REMITTANCE TO BE S ENT TO THE RECIPIENT AND ONLY AFTER DEDUCTION AND PAYMENT OF SUCH SUMS, THE BALANCE AMOUNT IS TO BE REMITTED TO THE N ON- RESIDENT. IN THE INSTANT CASE, IN COMPLIANCE OF THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE HAD DEDUCTED TH E TAX AT SOURCE BEFORE REMITTING THE AMOUNTS TO GERMANY AND DENMARK. THE ORDER UNDER SECTION 195(2) IS APPEALABLE UNDER THE PROVISIONS OF SECTION 248. SECTION 248 CLEARLY PROV IDES THAT AFTER DEDUCTION AND PAYMENT OF TAX IN ACCORDANCE WI TH THE PROVISIONS OF SECTIONS 195 AND 200, IF THE ASSESSEE DENIES HIS LIABILITY TO MAKE SUCH DEDUCTION, HE IS EMPOWER ED TO FILE AN APPEAL BEFORE THE CIT(A) IN ORDER TO GET A DECL ARATION THAT HE IS NOT LIABLE TO MAKE SUCH DEDUCTION. IN TH E INSTANT CASE, CIT(A) GRANTED RELIEF TO THE ASSESSEE HOLDING THAT NO TAX WAS DEDUCTIBLE OUT OF THE REMITTANCES MADE TO D ENMARK AND GERMANY AND DIRECTED THE ASSESSING OFFICER TO R EFUND THE AMOUNT OF TAX SO DEPOSITED BY IT. FURTHER THE PROVISIONS OF SECTION 240 VERY CATEGORI CALLY PROVIDE THAT WHERE AN ORDER IS PASSED IN APPEAL, OR OTHER PROCEEDINGS UNDER THE ACT, THE ASSESSING OFFICER IS DUTY BOUND TO REFUND AMOUNT DUE TO THE ASSESSEE EVEN WIT HOUT THE ASSESSEE MAKING ANY CLAIM IN THAT BEHALF. IN AD DITION TO THE REFUND OF AMOUNT DUE , THE ASSESSEE IS ALSO ENT ITLED TO INTEREST ON SUCH REFUND UNDER THE PROVISIONS OF SEC TION 244A. ONCE THE PROVISIONS OF SECTION 240 ARE APPLIC ABLE TO THE AMOUNT PAID BY THE ASSESSEE AS TAX, THEN THE PR OVISIONS OF SECTION 244A WILL APPLY THEREAFTER. IN THE INSTANT CASE, THE REFUND BECAME DUE TO THE A SSESSEE PURSUANT TO THE ORDER OF THE CIT(A), WHEREIN IT WAS HELD THAT ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 15 ASSESSEE WAS NOT TO DEDUCT TAX AT SOURCE ON THE AMO UNTS REMITTED TO THE RECIPIENT OUTSIDE INDIA. THE REFUND OF MONEY PAID BY THE ASSESSEE BECAME DUE TO IT ON THE PASSI NG OF THE APPELLATE ORDER IN APPEAL AS PER THE PROVISIONS OF SECTION 240. THE ASSESSEE WAS NOT TO MAKE ANY CLAIM IN THIS REGARD FOR THE ISSUE OF REFUND AS PER THE PROV ISIONS OF SECTION 240, WHICH PROVIDES THAT REFUND IS AUTOMATI CALLY DUE TO THE ASSESSEE AFTER THE ORDER IS PASSED IN APPEAL OR ANY OTHER PROCEEDINGS UNDER THE ACT. SECTION 244A(1) FU RTHER PROVIDES THAT IN ADDITION TO REFUND OF ANY AMOUNT B ECOMING DUE TO THE ASSESSEE UNDER THE ACT, THE ASSESSEE IS ALSO ENTITLED TO RECEIVE INTEREST ON SUCH REFUNDS WHICH HAVE BECOME DUE TO THE ASSESSEE UNDER THE ACT. THE REFUN D IN THE INSTANT CASE WAS DETERMINED ON ACCOUNT OF THE O RDER GIVING EFFECT TO THE ORDER IN APPEAL PASSED BY THE CIT(A). CLAUSE(A) OF SECTION 244A(1) COVERS THE INSTANCES O F PAYMENT OF SUMS OF MONEY BY WAY OF ADVANCE TAX OR T DS. CLAUSE (B) OF SECTION 244A(1) COVERS ALL OTHER CASE S WHEREIN REFUND HAS BECOME DUE TO THE ASSESSEE. THE PHRASE U SED IN CLAUSE (B) OF SECTION 244A(1) IS IN ANY OTHER CASE . THE EXPLANATION TO CLAUSE (B) OF SECTION 244A(1) FURT HER PROVIDES THAT DATE OF PAYMENT OF TAX OR PENALTY M EANS THE DATE ON WHICH THE AMOUNT OF TAX OR PENALTY SPECIFIE D IN THE NOTICE OF DEMAND ISSUED UNDER SECTION 156 IS PAID. THE EXPLANATION ATTACHED TO THE MAIN SECTION DOES NOT I N ANY WAY OBLITERATE THE MEANING OF THE SECTION. SECTION 156 TALKS OF SERVICE OF A NOTICE OF DEMAND IN THE PRESCRIBED FORM WHERE ANY TAX, INTEREST, PENALTY, F INE OR ANY OTHER SUM IS PAYABLE IN CONSEQUENCE OF ANY ORDER PA SSED UNDER THIS ACT. THE ORDER UNDER SECTION 195(2) HAD BEEN PASSED UNDER THE PROVISIONS OF THE ACT AND ANY NOTI CE OF DEMAND FOR THE SAID AMOUNT DUE PURSUANT TO ORDER PA SSED UNDER SECTION 195(2) WAS BOUND TO BE ISSUED UNDER SECTION 156. THE PROVISIONS OF CLAUSE (B) OF SECTION 244A(1) VE RY CATEGORICALLY PROVIDE INTEREST ON ANY REFUND ARISIN G BECAUSE OF PAYMENT OF TAX IN ANY OTHER CASE , WHICH SHALL INCLUDE THE PAYMENT MADE BY THE ASSESSEE PURSUANT TO ORDER UNDER SECTION 195(2), BY WHICH THE ASSESSING OFFICER REQ UISITIONED THE ASSESSEE TO DEDUCT THE TAX AND DEPOSIT THE SAME IN TREASURY BEFORE REMITTING THE AMOUNTS DUE TO THE RE CIPIENTS OUTSIDE INDIA. ACCORDINGLY, THE ASSESSEE WAS ENTITL ED TO RECEIVE INTEREST UNDER SECTION 244A(1)(B) ON AMOUNT S DEPOSITED PURSUANT TO ORDER PASSED UNDER SECTION 19 5(2), WHICH IN-TURN HAD BECOME DUE TO THE ASSESSEE BECAUS E OF THE ORDER PASSED IN APPEAL AGAINST THE SAID ORDER U NDER SECTION 195(2). ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 16 THE BOARD BY WAY OF CIRCULAR NO.769 DATED 6.8.98 A ND CIRCULAR NO.790 DATED 20.04.2000 PROVIDED THAT THE ASSESSEE SHALL BE ENTITLED TO REFUND OF SUCH PAYMEN TS MADE UNDER SECTION 195, BUT THE AMOUNT PAID INTO THE GOV ERNMENT ACCOUNT IN SUCH CASES IS NO LONGER TAX. IN VIEW OF THIS, NO INTEREST UNDER SECTION 244A IS ADMISSIBLE ON REFUND S TO BE GRANTED IN ACCORDANCE WITH THESE CIRCULARS. THE CIRCUMSTANCES MENTIONED IN THE AFORESAID CIRCUL ARS WERE DIFFERENT FROM THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. IN THE CIRCUMSTANCES REFERRED TO IN T HE CIRCULARS, THE TAX WAS DEPOSITED BY THE PERSONS ON THEIR OWN AND VOLUNTARILY WITHOUT ANY DEMAND BEING MADE BY TH E ASSESSING OFFICER OR ANY OTHER AUTHORITY UNDER THE ACT. BUT, IN THE INSTANT CASE, THE AMOUNT WAS PAID PURSUANT T O AN ORDER PASSED BY THE ASSESSING OFFICER UNDER THE PRO VISIONS OF SECTION 195(2) AGAINST WHICH THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). IN THE ORDER GIVING APPEA L EFFECT TO THE ORDER OF THE CIT(A), REFUND BECAME DUE TO THE A SSESSEE WHICH IN FACT AROSE BECAUSE OF THE PROVISIONS OF SE CTION 240. THE PROVISIONS OF THE ACT PREVAIL OVER THE INSTRUCT IONS ISSUED BY THE BOARD BY WAY OF CBDT CIRCULARS. THE SUPREME COURT IN SANDVIK ASIA LTD. VS. CIT., (2006) 280 ITR 643 HAS HELD THAT WHERE EXCESS AMOUNT OF TAX IS COLLECTED F ROM ASSESSEE, THE REVENUE MUST COMPENSATE ASSESSEE AND THE COMPENSATION IN THE INSTANT CASE WAS BY WAY OF INTE REST UNDER SECTION 244A FOR THE PERIOD WHEN THE AMOUNT W AS WITHHELD. ACCORDINGLY, THE ASSESSING OFFICER WAS TO BE DIRECTED TO ALLOW THE INTEREST UNDER SECTION 244A(1 )(B) ON THE AMOUNT DUE TO THE ASSESSEE PURSUANT TO THE ORDE R PASSED GIVING EFFECT TO CIT(A)S ORDER IN APPEAL. 9. THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. GODREJ INDUSTRIES LTD. VS. DCIT(SUPRA) IS DISTINGUISHABLE ON FACTS. IN THAT CASE, THE ASSESSEE HAD VOLUNTARILY DEDUCTED TH E TAX AT SOURCE AND THERE WAS NO ORDER PASSED BY THE ASSESSI NG OFFICER UNDER SECTION 201 OR UNDER SECTION 195(2). IN SUCH CASES, THE REFUND IS NOT GRANTED TO THE DEDUCTOR BY VIRTUE OF PROVISIONS OF THE ACT, AS THERE IS NO SUCH PROVISION CONTAINED IN THE STATUTE FOR GRANT OF REFUND IN RESPECT OF THE TAX DEDUCTED AT S OURCE TO THE DEDUCTOR THE TAX HAVING BEEN DEDUCTED VOLUNTARILY AT SOURCE AND DEPOSITED WITH THE GOVERNMENT. IN THE PRESENT CASE, THE ASSESSEE DID NOT DEDUCT THE TAX VOLUNTARILY. THE DE PUTY DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION 2(1) HAS HEL D THE ASSESSEE TO BE AN ASSESSEE IN DEFAULT AND THE SAID ORDER WAS ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 17 CHALLENGED BY THE ASSESSEE BEFORE THE CIT(A) UNDER THE ACT. THE CIT(A) ON APPEAL FOUND THE ORDER MADE BY THE DY . DIRECTOR OF INCOME TAX TO BE CONTRARY TO LAW AND THE ASSESSE E WAS HELD NOT TO BE TREATED AN ASSESSEE IN DEFAULT. IT WAS AS A RESULT OF THE ORDER OF THE CIT(A), THE ASSESSEE WAS ENTITLED TO R EFUND. THE PAYMENT MADE BY THE ASSESSEE WAS ON DEMAND UNDER TH E PROVISIONS OF THE ACT AND REFUND ALSO BECAME DUE TO THE ASSESSEE UNDER THE PROVISIONS OF THE ACT. THEREFOR E, IT CANNOT BE SAID THAT THE REFUND WAS NOT GRANTED TO THE ASSE SSEE UNDER THE ACT. THE DECISION OF THE CIT(A), TO THIS EFFECT , IN OUR VIEW, DOES NOT WARRANT ANY INTERFERENCE. THE APPEALS OF T HE REVENUE ARE ACCORDINGLY DISMISSED. 10. THE CROSS OBJECTIONS OF THE ASSESSEE ARE MERELY SUPPORTING THE DECISION OF THE CIT(A) AND NO FRESH RELIEF HAS BEEN CLAIMED. THESE ARE ACCORDINGLY DISMISSED AS IN FRUCTUOUS. 20. IT IS CLEAR FROM THE ORDER OF THIS TRIBUNAL IN CASE (SUPRA) THAT THIS TRIBUNAL HAS DECIDED THIS ISSUE AFTER CON SIDERING THE DECISION IN THE CASE OF GODREJ INDUSTRIES LTD V/ S DCIT (SUPRA) AND HELD THAT THE PAYMENT MADE BY THE ASSES SEE ON DEMAND UNDER THE PROVISIONS OF ACT AND THE REFUND ALSO BECOME DUE TO THE ASSESSEE UNDER THE PROVISIONS OF ACT. WHEN IT HAS BEEN HELD THAT THE REFUND BECOME DUE AS PER THE PROVISIONS OF ACT , THE PROVISIONS OF SECTION 244A ARE APPLICABLE ON THE REFUND MADE TO ASSESSEE AND ACCOR DINGLY THE ASSESSEE IS ENTITLED FOR INTEREST U/S 244A. 21. WE FURTHER NOTE THAT IN THE ASSESSEES OWN CASE IN ITA NO.4975/MUM/2005 VIDE ORDER DATED 26.9.2009 THIS TR IBUNAL IN PARAGRAPH 5 AND 6 HELD AS UNDER : ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 18 5. IN THE CASE OF DELHI DEVELOPMENT AUTHORITY(SUPR A), IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE APEX COU RT AND IT IS HELD AS UNDER : IN THE CASE IN HAND, AS INDICATED EARLIER, THE DIR ECTION TO REFUND THE AMOUNT HAS BEEN MADE IN APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL. THE AMOUNT IS TO BE REFUNDED TO THE ASSESSEE. IT CANNOT BE SAID THAT THE REFUNDEE WILL NOT BE AN ASSESSEE ONLY FOR THE REASON THAT ACTUALLY NO ASSESSMENT PROCEEDINGS HAD TAKEN PLACE. IT WOULD BE PERTINENT TO REFER TO THE PROVISION CONTAINED UNDER SECTION 201 WHICH CLEARL Y PROVIDES THAT IF THE PRINCIPAL OFFICER OR THE COMPA NY LIABLE TO DEDUCT THE INCOME-TAX AT SOURCE FAILS TO DO SO, HE SHALL BE DEEMED TO BE ASSESSEE IN DEFAULT IN RESPECT OF THE TAX. THE DEFINITION OF THE WORD ASSESSEE AS CONTAINED UNDER CLAUSE (7) OF SECTIO N 2 READS AS UNDER : (7) ASSESSEE MEANS A PERSON BY WHOM [ANY TAX] OR ANY OTHER SUM OF MONEY IS PAYABLE UNDER THIS ACT, A ND INCLUDES (A) EVERY PERSON IN RESPECT OF WHOM ANY PROCEEDING UNDER THIS ACT HAS BEEN TAKEN FOR THE ASSESSMENT OF HIS INCOME [OR ASSESSMENT OF FRINGE BENEFITS] OR OF THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE, OR OF THE LOSS SUSTAINED BY HIM OR BY SUCH OTHER PERSON, OR OF THE AMOUNT OF REFUND DUE TO HIM OR TO SUCH OTHER PERSON ; (B) EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE UNDER ANY PROVISION OF THIS ACT ; (C) EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER ANY PROVISION OF THIS ACT ; FROM THE ABOVE PROVISION, IT IS CLEAR THAT TERM ASSESSEE INCLUDES ACTUAL ASSESSEES AS WELL AS DEEMED ASSESSEES UNDER THE PROVISIONS OF THE ACT. I T IS , THEREFORE, NOT CORRECT TO CONTEND THAT UNLESS THERE ARE ACTUAL ASSESSMENT PROCEEDINGS PERTAINING TO ANY PERSON, HE CANNOT BE CONSIDERED TO BE AN ASSESSEE. IN THE PRESENT CASE DDA WAS CONSIDERED TO BE LIABLE TO DEDUCT THE TAX AT SOURCE. IT FAILED TO DO SO. H ENCE ORDER UNDER SECTION 201(1) AND 201(1A) WAS PASSED ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 19 RAISING THE DEMAND AND AMOUNT OF TAX WAS PAID. THE ORDER OF REFUND WAS PASSED IN APPELLATE PROCEEDINGS UNDER THE ACT ATTRACTING SECTION 240. CERTAIN DECISIONS WERE CITED AT THE BAR TO SHOW THE MEANING OF THE WORDS ASSESSEE AND ASSESSMENT AND DIFFERENT STAGES OF THE ASSESSMENT PROCEEDINGS NEED NOT BE DEALT WITH IN VIEW OF CLEAR DEFINITION OF TH E WORD ASSESSEE UNDER THE ACT AS QUOTED ABOVE 6. IN OUR OPINION, ANSWER TO THE ARGUMENTS OF THE LD. DR I FOUND IN THE DECISION OF THE APEX COURT IN THE CASE OF DELHI DEVELOPMENT AUTHORITY (SUPRA0. TH E ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE APEX COURT IN DELHI DEVELOPME NT AUTHORITY (SUPRA). WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) AND THE SAME IS ACCORDINGLY CONFIRMED 22. IN VIEW OF THE ABOVE DISCUSSIONS AS WELL AS T HE ORDERS OF CO-ORDINATE BENCHES OF THIS TRIBUNAL, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE. THE ORDER OF THE CIT(A) IS UPHELD. 23. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.11.2010 SD SD (T.R.SOOD) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI, DATED 26 TH NOV 2010 SRL:221110 ITA NO. 505,509 AND 510/MUM/2010 AND 506, 507 AND 508/MUM/2010 20 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI