ITO (TDS) (OSD) RG 2, MUMBAI V. INFRASTRUCTURE LEASING & FINANCIAL SERVCES LTD, MUMBAI

ITA 5241/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2515 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 18-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGAINST DATED PASSED

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUM BAI . . , , ! ' #$, % , & BEFORE SHRI G.S.PANNU, AM AND SHRI AMARJIT SINGH, J M / I.T.A. NO.5241/M/2014 ( % ' !(' / ASSESSMENT YEAR: 2011-12) INCOME TAX OFFICER (TDS) (OSD) RG.2 R. NO. 704, 7 TH FLOOR, SMT. K. G. MITTAL AAYURVEDIC HOSPITAL BUILDING, CHARNI ROAD, MUMBAI - 400002 / VS. M/S. INFRASTRUCTURE LEASING & FINANCIAL SERVICES LTD. IL & FS CENTR E, G BLOCK, C-22, BANDRA KURLA COMPLEX, BANDRA (EAST) MUMBAI - 400051 ./ ./ PAN/GIR NO. : AAACL5004C ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 03.03.2016 !' /DATE OF PRONOUNCEMENT:20.07.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 12.06.2014 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS)-14, MUMBAI [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2011-12. ASSESSEE BY: SHRI DILIP V. LAKHANI DEPARTMENT BY: SHRI BHAWAR SINGH RATNOO ITA NO.5241/M/14 A.Y. 2011-12 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE SURVEY OPERATION U/S.133A OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) WAS CONDUCTED ON 16.03.2012 AT THE PREMISES OF ASSESSEE COMPANY M/S. INFRASTRUCTURE LEASING & FINANCIAL SERVICES LTD. THE ASSESSEE COMPANY IS A HOLDING COMPANY OF ALL COMPANIES OF IL & FS GROUP. THE PRINCIPLE BUSINESS COMPRISES OF INVESTMENTS IN GROUP COMPANIES GRANTING OF LOANS AND ADVANCES ONLY TO GROUP COMPAN IES AND MANAGING ITS OWN BUSINESS CENTRE. DURING THE COURS E OF SURVEY, STATEMENT OF MR. S. SRINIVAS, VICE PRESIDENT (TAXAT ION) WAS RECORDED U/S.131 OF THE ACT AND IT WAS POINTED OUT TO MR. S. SRINIVAS, THAT THE EXPENSES INCURRED ON ACCOUNT OF BANK GUARANTEE COM MISSION WERE NOT SUBJECTED TO TDS. MR. S. SRINIVAS WAS OF THE O PINION THAT BANK GUARANTEE COMMISSION WAS NOT COVERED ANY OF THE TD S PROVISIONS AND ACCORDINGLY NOT LIABLE TO TDS. THEREAFTER, THE NOTICE U/S.201(1) /201(1A) OF THE ACT WAS ISSUED ON 12.03.2013 TO THE ASSESSEE. REPLY FILED. THE ASSESSEE WAS FIND IN DEFAULT OF NON-DED UCTING OF TDS ON BANK GUARANTEE COMMISSION TO THE TUNE OF RS.94,19,9 85/- UPON WHICH TDS TO THE TUNE OF RS.9,41,999/- WAS REQUIRED TO BE DEDUCTED. THEREAFTER THE INTEREST U/S.201(1A) OF THE ACT TO T HE TUNE OF RS.3,39,120/- WAS ALSO ASSESSED AGAINST THE ASSESSE E. THE TOTAL AMOUNT WAS REQUIRED TO BE PAYABLE TO THE TUNE OF RS .12,81,119/-, THEREAFTER, THE ASSESSEE CHALLENGED THE SAID ORDER AND THE LEARNED CIT(A) ALLOWED THE APPEAL ON THE ASSESSEE IN THE CA SE OF M/S. KOTAK SECURITIES LTD. IN ITA NO.6657/MUM/2011 DATED 03.02 .2012 FOR THE ITA NO.5241/M/14 A.Y. 2011-12 3 A.Y.2004-05. IN THE SAID JUDGMENT IT WAS HELD THAT NO TDS WAS PAYABLE ON THE BANK GUARANTEE COMMISSION CHARGES U /S.194H OF THE ACT. FEELING AGGRIEVED THE REVENUE HAS FILED THE P RESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE RECORD CAREFULLY. THE ASSESSING OFFICER IS OF THE VIEW TH AT TDS IS REQUIRED TO BE DEDUCTED UPON THE INTEREST/COMMISSION PAYABLE ON BANK GUARANTEE AND ACCORDINGLY THE INTEREST IS ALSO REQU IRED TO BE PAYABLE U/S.201(1A) OF THE ACT. IN APPEAL THE LEARNED CIT( A) HAS DELETED THE ADDITION IN VIEW OF THE CASE OF M/S. KOTAK SECURITI ES LTD. (SUPRA). IT IS SPECIFICALLY HELD THAT NO TDS IS PAYABLE ON BANK GUARANTEE CHARGES U/S. 194H OF THE ACT. THEREFORE, THE SAME IS NOT L IABLE TO BE DEDUCTED. ACCORDINGLY, THE LEARNED CIT(A) DELETED THE SAID AD DITION. THIS ISSUE HAS FURTHER CAME INTO EXISTENCE IN THE ASSESSEES O WN CASE FOR THE A.Y.2010-11. THE HONBLE INCOME TAX APPELLATE TRIB UNAL, WHILE DECIDING THE MATTER IN THE ASSESSEES OWN CASE IN I TA NO.3920/MUM/2014 HAS ALSO DECIDED THE ISSUE IN FAVO UR OF THE ASSESSEE ON RELYING THE CASE DECIDED BY THE HONBLE TRIBUNAL M/S. KOTAK SECURITIES LTD. (SUPRA). THIS ISSUE HAS BEEN SQUARELY COVERED BY THE ABOVE SAID JUDGEMENT, THEREFORE HONORING THE JUDGEMENT OF THE HONBLE TRIBUNAL MENTIONED ABOVE AND FINDING NOTHI NG CONTRARY MATERIAL AGAINST THE FINDING OF THE SAID JUDGEMENT, WE ARE OF THE VIEW ITA NO.5241/M/14 A.Y. 2011-12 4 THAT LEARNED CIT(A) HAS DECIDED THE MATTER JUDICIOU SLY AND CORRECTLY WHICH DOES NOT REQUIRED TO INTERFERE WITH AT THIS A PPELLATE STAGE. 4. ACCORDINGLY, APPEAL OF THE REVENUE IS HEREBY DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JULY, 2016 SD/- SD/- (G.S.PANNU) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED: 20 TH JULY, 2016 MP MP MP MP * + ,%'#- .-(' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. * / BY ORDER, - & //TRUE COPY// //$ (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI