Asstt.Commissioner of Income Tax-III, Kanpur V. Smt. Arati Rakshit , Kanpur

ITA 560/LKW/2012

• Counselvise Citation: 56023714 RSA 2012
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 21-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUJA RAJ
• Assessee Lawyers: S K JAIN; SWARN SINGH
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YA DAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.560/LKW/2012 A.Y.: 2009-10 A .C.I.T.-III, KANPUR. VS. SMT. ARATI RAKSHIT, 27, PANCHRATAN APARTMENTS, 7/128, SWAROOP NAGAR, KANPUR. PAN:AAQPR2478D (APPELLANT) (RESPONDENT) A PPELLANT BY SMT. PUJA RAJ, D.R. RESPONDENT BY S/SHRI SWARN SINGH & S.K.JAIN, FCA DATE OF HEARING 17/10/2013 DATE OF PRONOUNCEMENT 24/10/2013 O R D E R PER A. K. GARODIA, A.M. THIS IS A REVENUES APPEAL DIRE CTED AGAINST THE ORDER OF LEARNED CIT(A)-II, KANPUR DATED 23/08/2012 FOR ASSESSMENT YEAR 2009-2010. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD.CIT(A)-LL, KANPUR HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS.13,58,172/- ON ACCOUNT OF NON-DEDUCTION OF IDS ON PAYMENT OF COMMISSION TO FOREIGN AGENT WITHOUT APPRECIATING THE [2] FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-LL, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ABOVE ADDITION WITHOUT CONSIDERING THE BOARD'S CIRCULAR NO.7 OF 2009. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-LL, KANPUR HAS NOT APPRECIATED THE SETTLED PRINCIPLE IN RESPECT OF INTERPRETATION OF PROSPECTIVE OR RETROSPECTIVE NATURE OF AMENDMENT IN THE STATUTE AS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS GOLD COIN HEALTH FOOD PVT. LTD. ( 2008) 304 ITR 308 (SC) AND CIT VS MOSER BAER INDIA LT D. [2009] 315 ITR 460 (SC). 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-LL, KANPUR HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACT THAT THE SERVICES RENDERED BY THE NON-RESIDENT AGENT TO PROCURE ORDERS FROM FOREIGN BUYERS ARE PURELY TECHNICAL OR MANAGERIAL IN NATURE. THEREFORE, THE PROVISION OF SECTION 9(1)(VII) IS CLEARLY APPLICABLE ON THE ASSESSEE. 5. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-LL, KANPUR DA TED 23.08.2012 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) DATED 27.12.2011 TO BE RESTORED. 6. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL MENTIONED ABOVE AND / OR TO ADD ANY FRESH GROUNDS AS AND WHEN IT IS REQUIRED TO DO SO. 3. THE LEARNED D.R. HAS SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. FOR THE ASSESSEE HAS SUPPORTED THE ORDER OF LEARNED CIT(A). LEARNED A.R. ALSO SUBMITTED THAT THE ONLY ISSUE INVOLVED IN THE PRESENT CASE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION [3] IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-2008 AND 2008-2009 IN I.T.A.NO.607 & 608/LKW/2011 DATED 11/07/ 2012. HE ALSO SUBMITTED THAT THE COPY OF THE TRIBUNAL DECISION IS AVAILABLE AT PAGE 1 TO 9 OF THE ASSESSEES PAPER BOOK. HE FURTHER SUBM ITTED THAT NOW THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY A JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. EON TECHNOLOGY (P) LTD. REPORTED IN [2012] 343 ITR 366 (DEL). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE JUDGMENTS CITED BY LEARNED A.R. FOR THE ASSESSEE. IN THE PRESENT CASE THE ONLY ISSUE IN DISPUTE BEFORE US IS AS TO WHETHER ANY TDS WAS REQUIRED TO BE DEDUCTED BY THE ASSESSEE FROM THE PAYMENT MADE OF RS.13,58,172/- TO M/S MESCOT INTERNATIONAL UNDER THE HEAD FOREIGN AGENT COMMISSION. IN THE EARLIER TWO YEARS I.E. ASSESSMENT YEAR 2007-2008 AND 2008-2009 ALSO, THIS VERY ISSUE WAS INVOLVED AND THE TRIBUNAL IN ASSESSEES OWN CASE HAS DECIDED THE SAME IN FAVOUR OF THE ASSESSEE BY FOLLOWING ANOTHER TRIBUNAL DECISION RENDERED IN THE CASE OF ACIT VS. MODEL EXIMS IN I.T.A. NO.754/LKW/10 DATE D 28/04/2011. THE TRIBUNAL IN THAT ORDER HAS ALSO FOLLOWED THE JUDGMENT OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS . EON TECHNOLOGY (P) LTD. (SUPRA). 5. LEARNED D.R. COULD NOT POINT OUT ANY DIFFERENCE IN FACTS IN THE PRESENT YEAR AS COMPARED TO THE FACTS IN EARLIER TWO YEARS. HENCE, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT CASE. ACCORDINGLY, IN THE PRESENT CASE ALSO, RESPECTFULLY FOLLOWING THE EARLIER TRIBUNAL ORDER AND THE JUDGMENT OF HON'BLE DELHI HIGH COURT CITED BY [4] LEARNED A.R. FOR THE ASSESSEE, WE DE CLINE TO INTERFERE IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:24/10/2013 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. T HE RESPONDENT. 3. CONCERNED CIT 4. T HE CIT( A ) 5. DR, ITAT, LUCKNOW AS STT. REGISTRAR