John Deere India Pvt. Ltd, Pune V. DDIT,(IT) -I, Pune

ITA 626/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6056 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-03-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Keywords: Double taxation relief; Non-deduction of tax; TDS; Set aside
• Section: 201(1); 195

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.626/PUN/2017 / ASSESSMENT YEAR : 2009-10 JOHN DEERE INDIA PVT. LIMITED, TOWER XIV, CYBERCITY, MAGARPATTA CITY, HADAPSAR, PUNE 411 028. PAN : AAACJ4233B. . / APPELLANT V/S THE DY. DIRECTOR OF INCOME TAX, (INTERNATIONAL TAXATION)-1, PUNE. . / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK. REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) 13, PUNE DATED 30.12 .2016 FOR A.Y. 2009-10. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE BUS INESS OF PROVISIONS OF IT (INFORMATION TECHNOLOGY) AND IT ENABLED S ERVICES IN THE FIELD OF ENGINEERING, DESIGN, DEVELOPMENT AND VALUATION ETC. A O NOTICED THAT DURING F.Y. 2008-09 ASSESSEE HAD MADE PAYMENTS TO FOREIGN COMPANY I.E., DEERE & CO., USA FOR SAP LICENSE, EMAIL FACILITY, DISK STORAG E AND / DATE OF HEARING : 11.07.2019 / DATE OF PRONOUNCEMENT: 01.08.2019 2 OTHER SYSTEM BUT HAD NOT DEDUCTED TDS WHILE MAKING THE PAYMENTS. AO WAS OF THE VIEW THAT THE PAYMENTS MADE BY THE ASSESSE E WERE LIABLE TO TAX AS IT WAS IN THE NATURE OF ROYALTY / FTS AS PER SEC.9(1)(V I) & 9(1)(VII) OF THE I.T. ACT AS WELL AS ARTICLE 12 OF DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA) BETWEEN INDIA & USA. ASSESSEE WAS THEREFORE ASK ED TO EXPLAIN THE REASONS FOR NOT DEDUCTING TDS WHILE MAKING THE PAYMENT TO US ENTITY. ASSESSEE MADE THE SUBMISSIONS WHICH WERE NOT FOUND ACCE PTABLE TO THE AO. AO NOTED THAT IDENTICAL ISSUE AROSE IN ASSESSEES OW N CASE IN A.YS. 2007-08 AND HIS PREDECESSOR HAD VIDE ORDER DATED 06.02 .2014 PASSED U/S 201(1A) OF THE ACT HELD THAT ASSESSEE WAS LIABLE TO DEDUCT TDS. HE THEREFORE FOLLOWING HIS PREDECESSORS ORDER HELD THAT ASSE SSEE WAS LIABLE TO DEDUCT TDS AND SINCE ASSESSEE HAS FAILED TO DEDUCT T DS, ASSESSEE HAS COMMITTED A DEFAULT AND THEREFORE ASSESSEE WAS TREATED AS ASSESSEE IN DEFAULT AS PER PROVISIONS OF SEC.201(1) OF THE ACT. AO THE REAFTER CALCULATED THE LIABILITY OF THE TAX AS PER THE LIST DETAILED FROM PAGES 3 TO 17 OF THE ASSESSMENT ORDER AND DETERMINED THE TOTAL INCOM E AT RS.4,37,95,332/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.30.12.2016 (IN APP EAL NO.PN/CIT(A)-13/DDIT(IT-I)/11/2016-17) DISMISSED THE APPE AL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE AS SESSEE COMPANY SHOULD HAVE DEDUCTED TDS ON THE PAYMENTS MADE TO DEERE & CO . USA OF RS. 196 , 596,270 1 - ON ACCOUNT OF FOR SOFTWARE LICENSE FEES AND IT SUPPORT SER V ICES ON THE GROUND THAT THE SAME WAS TAXABLE UNDER THE INCOME TAX ACT AS WELL AS UNDER THE DTAA AS ROYALT Y . 2. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T THE AMOUNT OF RS. 196 , 596 , 270 1 - WAS NOT COVERED UNDER ROYALTIES AND 1 OR FEES FOR TECHNICAL SER V ICES OF THE DT AA BETWEEN INDIA AND USA AS WELL AS UNDER THE INCOME TAX ACT AND THEREFORE, THE APPELLA NT COMPANY WAS NOT REQUIRED TO WITHHOLD TAX U / S. 195 ON ABOVE AMOUNTS AND ACCORDINGLY, THE DEMANDS RAISED OF TAX AND INTEREST U / S 201 (1) AND 201(1A) MAY KINDLY BE DELETED. 3 3. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T THE PAYMENTS MADE TO DEERE & CO. USA WAS ON ACCOUNT OF REIMBURSEMENT OF SOFTWARE LICENSE FEES AND IT SUPPORT SERVICES AND SINCE THER E WAS NO INCOME EARNED BY THE SAID ENTITY , NO TDS WAS REQUIRED TO BE DEDUCTED ON SUCH REIMBURSEMENT OF EXPENDITURE. 4. THE LEARNED CIT(A) ERRED HOLDING THAT PA Y MENT FOR LEA SE LINE CHARGE S TO DEERE & CO. USA IS TAXABLE A S ' ROYALTY ' UNDER THE D T AA AS W EL L AS PER REGULAR PROVISIONS OF THE INCOME TAX ACT , 1961 . 5. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T -- (A) THE PAYMENT OF LEA S E LINE CHARGE S TO DEERE & C O. USA W A S NOT COVERED UNDER CLAUSE 'ROYALTY AND / OR FEES FOR TECHNICAL SER V ICES' OF THE DT AA BETWEEN INDIA AND USA AND HENCE THE APPELLANT COMPANY WAS NOT REQUIRED TO WITHHOLD TAX U / S . 195 ON ABOVE AMOUNTS ; (B) THE PAYMENT OF LEASE LINE CHARGES TO DEERE & CO. US A WERE NOT COVERED UNDER THE DEFINITION OF 'ROYALTY ' IN SECTION 9(1)(VI) OF THE ACT AND HENCE, THE ASSESSEE COMPANY WAS NOT REQ UIRED TO DEDUCT ANY TDS ON THE SAID PAYMENTS. (C) THE PAYMENT OF LEASE LINE CHARGES TO DEERE & CO. USA WAS IN THE NATURE OF REIMBURSEMENT OF EXPENSES AND NO TAX WAS DEDUCTIBLE AT SOURCE. 6. THE LEARNED CIT(A) ERRED IN MAKING AN ENHANCEMENT B Y HOLDING THAT THE APPELLANT COMPANY OUGHT TO HAVE DEDUCTED TDS ON THE CHARGES ON ACCOUNT OF TRAINING AND REIMBURSEMENT OF SALARY PAI D TO DEERE & CO . USA WITHOUT APPRECIATING THAT THE APPELLANT COMPANY WAS NOT REQUIRED TO DEDUCT ANY TDS ON THE ABOVE REFERRED PA YMENTS AND ACCORDINGLY, THE ENHANCEMENT MADE BY THE LEARNED CI T(A) IS NOT JUSTIFIED AT ALL AND THE DEMAND RAISED MAY KINDLY B E DELETED. 7. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APPEL LANT COMPANY SHOULD HAVE DEDUCTED TDS ON THE TRAINING FEES PAID TO DEERE & CO. USA OF RS.9,179,764/ - ON THE GROUND THAT THE SAME CONSTITUTED FEES FOR TECHNICAL SERVICES UNDER THE INCOME TAX ACT AS WELL AS UNDER THE DT AA BETWEEN INDIA AND USA. 8. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE P AYMENTS WERE MADE TO DEERE & CO. ON ACCOUNT OF WEB BASED TRAINING WHICH DID NOT MAKE AVAILABLE ANY TECHNICAL SERVICE AND HENCE, THE SAME WAS NOT TAXABLE UNDER ARTICLE 12 OF THE DTAA BETWEEN INDIA AND USA AND HENCE, THERE WAS NO REASON FOR THE APPELLANT COMPANY TO DE DUCT TDS ON THE SAID PAYMENTS. 9. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSES SEE WAS REQUIRED TO DEDUCT TDS ON THE CHARGES PAID TO DEERE & CO. ON ACCOUNT OF REIMBURSEMENT OF SALARY OF EXPAT EMPLOYEES OF RS. 133,484,726 1 - ON THE GROUND THAT THE SAID PAYMENT CONSTITUTED FEES F OR TECHNICAL SERVICES AND HENCE, THE APPELLANT COMPANY WAS REQUI RED TO DEDUCT TDS ON THE SAID PAYMENTS. 10. THE LEARNED CIT(A) ERRED IN HOLDING THAT DEERE & CO. BY DEPUTING ITS EMPLOYEES TO THE APPELLANT COMPANY WAS PROVIDING TE CHNICAL SERVICES TO THE APPELLANT COMPANY AND ACCORDINGLY, THE TDS W AS REQUIRED TO BE DEDUCTED ON SUCH PAYMENTS. 4 11. T HE LEARNED C IT ( A ) FAILED TO APPR E CIAT E TH A T AS PER THE SE CONDMENT AGREEMENT BETWEEN THE APPELLANT COMP A N Y A ND DEERE & CO ., ALL THE EXPAT EMPLOYEE S ARE ON THE ROLL OF THE APPELLANT COMPANY AND TDS U / S 192 IS DEDUCTED IN RESPECT OF THE SALAR Y PAID TO THEM AND HENCE , THERE I S NO QUESTION OF HOLDING THAT THE SER V ICE S RENDERED B Y ' THE S E EMPLOYEES CONSTITUTED FEES FOR TECHNICAL S ER V ICES UNDER THE I NCOME TAX ACT AS WELL AS UNDER THE DT AA BETWEEN INDIA AN D USA. 12. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT D EERE & CO. WA S NOT PROVIDING ANY FEES FOR TECHNICAL SERVICES TO TH E APPELLANT COMPANY BY DEPUTING ITS EMPLOYEES TO THE APPELLANT COMPANY AND THEREFORE , THERE WAS NO QUESTION OF DEDUCTING ANY TDS ON THE R EIMBURSEMENT OF THE SALARIES OF THE EXPAT EMPLOYEES. 13. WITHOUT PREJUDICE TO THE ABOVE GROUNDS , THE LEARNED CIT(A) E R R E D IN NOT APPRECIATING THAT THE A.O. HAD GROSSED UP THE A MOUNTS CHARGEABLE TO TDS U / S 195A FOR THE PURPOSES OF COMPUTING TAX AND INTERE ST, WITHOUT APPRECIATING THAT THE SAID SECTION WAS NOT APPLICABLE W HILE DETERMINING THE TAX AND INTEREST U / S . 201 AND 201(1A) AND HENCE , THE GROSSING UP OF THE AMOUNTS WAS NOT JUSTIFIED AT ALL . 3. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THE ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 2007-08 AND 2008-09 (IN ITA NOS.905 TO 908/PUN/2015 ORDER DT.23 .01.2019). HE PLACED ON RECORD THE COPY OF THE AFORESAID ORDER AND PO INTED TO THE SIMILARITIES BETWEEN THE GROUNDS RAISED IN THOSE YEARS AND THE IMPUGNED YEAR. HE THEREAFTER POINTED TO PARA 90 AT PAGE 78 OF THE ORDER WHEREIN THE TRIBUNAL HAS HELD THAT PURCHASE OF SOFTWARE BY THE ASSE SSEE BEING COPYRIGHTED ARTICLE WAS NOT COVERED BY ROYALTY AND ASSE SSEE CANNOT BE HELD TO BE IN DEFAULT. 4. WITH RESPECT TO THE PAYMENT MADE WITH REGARD TO P ROVISIONS OF IT SUPPORT CHARGES I.E., INTERNET CHARGES, USE OF E-MAIL CHARGE S, BACKUP SUPPORT SERVICES ETC., HE POINTED TO THE FINDINGS OF THE TR IBUNAL AT PARA 93 OF THE AFORESAID ORDER WHEREIN IT HAS HELD THAT INTERNET CHARGES, LINE CHARGES PAID WERE NOT IN THE NATURE OF ROYALTY AND ARE NOT EVEN FOR MAKING AVAILABLE OF ANY TECHNICAL SERVICES. WITH RESPECT TO THE LE ASED LINE CHARGES, HE POINTED TO PARA 101 AT PAGE 85 OF THE ORDER. SIMILARL Y, WITH RESPECT TO PAYMENT OF TRAINING FEE, HE POINTED TO PARA 106 AT PAGE 8 8 AND WITH RESPECT 5 TO SALARY OF EXPAT EMPLOYEES, HE POINTED TO PARA 110 AT PAGE 90 OF THE ORDER. HE FURTHER SUBMITTED THAT SINCE THE FACTS IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF ASSESSEES OWN CASE IN A.YS. 200 7-08 AND 2008-09 AND THEREFORE FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, THE ISSUE BE DECIDED ACCORDINGLY. LD. D.R ON THE OTHER HAND DID NOT C ONTROVERT THE SUBMISSIONS MADE BY LD.A.R. BUT HOWEVER SUPPORTED THE O RDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT APPEAL IS WITH RESPECT TO THE PAYMENT OF TAX AND INTEREST RECEIVED U/S 201(1) AND 201(1A) OF THE ACT ON ACCOUNT OF NON-DEDUCTION OF TAX ON THE PAYMENTS MADE BY THE ASSE SSEE TO DEERE & CO., USA. WE FIND THAT IDENTICAL ISSUE AROSE IN ASSESSEES OWN CASE IN A.YS . 2007-08 AND 2008-09 IN ITA NOS.905 TO 908/PUN/2015 (SU PRA) WHEREIN THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS HELD THAT ASSE SSEE IS NOT LIABLE TO DEDUCT THE TDS ON THE PAYMENT. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER : 90. IN CONCLUSION, WE HOLD THAT PURCHASE OF SOFTWA RE BY THE ASSESSEE BEING COPYRIGHTED ARTICLE IS NOT COVERED BY THE TERM ROY ALTY UNDER SECTION 9(1)(VI) OF THE ACT. WHERE THE ASSESSEE DID NOT ACQUIRE ANY COP YRIGHT IN THE SOFTWARE, IS NOT COVERED UNDER EXPLANATION 2 TO SECTION 9(1)(VI) OF THE ACT. WE FURTHER HOLD THAT AMENDED DEFINITION OF ROYALTY UNDER THE DOME STIC LAW CANNOT BE EXTENDED TO THE DEFINITION OF ROYALTY UNDER DTAA, WHERE THE TERM ROYALTY ORIGINALLY DEFINED HAS NOT BEEN AMENDED. AS PER DEF INITION OF ROYALTY UNDER DTAA, IT IS PAYMENT RECEIVED IN CONSIDERATION FOR U SE OR RIGHT TO USE ANY COPYRIGHT OF LITERARY, ARTISTIC OR SCIENTIFIC WORK, ETC.; THUS, PURCHASE OF COPYRIGHTED ARTICLE DOES NOT FALL IN REALM OF ROYA LTY. WE ALSO HOLD THAT SINCE THE PROVISIONS OF DTAA OVERRIDES THE PROVISIONS OF INCOME TAX ACT AND ARE MORE BENEFICIAL AND THE DEFINITION OF ROYALTY HAV ING NOT UNDERGONE ANY AMENDMENT IN DTAA, THE ASSESSEE WAS NOT LIABLE TO D EDUCT TAX FOR PAYMENTS MADE FOR PURCHASE OF SOFTWARE. IN SUCH SCENARIO, TH E ASSESSEE CANNOT BE HELD TO BE IN DEFAULT AND THE DEMAND CREATED UNDER SECTI ON 201(1) AND INTEREST CHARGED UNDER SECTION 201(1A) OF THE ACT IS THUS, C ANCELLED. .. 93. THE ASSESSEE HAS FILED BREAKUP OF EXPENSES AT P AGES 164 AND 165 OF FACTUAL PAPER BOOK. ACCORDINGLY, WE HOLD THAT INTER NET CHARGES PAID OF 27,09,701/-, LINE CHARGES OF 39,87,960/-, SERVICE CHARGES OF 6,63,652/- AND OTHER CHARGES I.E. VPN CHARGES, ONLINE MEETING CHARGES, ETC. OF 22,94,256/- ARE NOT PAYMENT OF ROYALTY AND ARE NO T EVEN FOR MAKE AVAILABLE 6 OF ANY TECHNICAL SERVICES AND HENCE, THERE WAS NO R EQUIREMENT TO DEDUCT TAX AT SOURCE OUT OF SUCH PAYMENTS. IN THE SAID BREAKUP , THE ASSESSEE HAS ALSO POINTED OUT THAT SOFTWARE CHARGES PAID WERE TO THE TUNE OF 4,22,73,399/-, WHICH WE HAVE ALREADY HELD IN THE PARAS HEREINABOVE , NOT LIABLE FOR DEDUCTION OF TAX AT SOURCE. 101. APPLYING THE SAID PROPOSITIONS TO THE FACTS OF PRESENT CASE, WE HOLD THAT THE ASSESSEE HAS NOT DEFAULTED IN NON DEDUCTION OF TAX AT SOURCE OUT OF PAYMENTS MADE FOR LEASE LINE CHARGES. WE ALSO UPHOL D THE ALTERNATE PLEA OF ASSESSEE THAT THE SAID LEASE LINE CHARGES ARE AT BE ST REIMBURSEMENT OF EXPENSES AND HENCE, NOT LIABLE FOR DEDUCTION OF TAX AT SOURCE. THE GROUNDS OF APPEAL NO.4 TO 5 ARE ALLOWED. . 106. IN THE FACTS BEFORE AHMEDABAD BENCH OF TRIBUNA L, WHERE SERVICES RENDERED BY SERVICE PROVIDER WERE GENERAL IN NATURE AND WHICH DID NOT INVOLVE ANY TRANSFER OF TECHNOLOGY, IT WAS HELD THA T WHERE THE ONUS WAS ON REVENUE AUTHORITIES TO DEMONSTRATE THAT THESE SERVI CES TOO INVOLVE ANY TRANSFER OF TECHNOLOGY AND SINCE THAT ONUS WAS NOT DISCHARGED, THEN THE PAYMENT WAS NOT COVERED BY THE DEFINITION OF FEES FOR TECHNICAL SERVICES. THE FACTS OF THE SAID CASE ARE SIMILAR TO THE FACTS BEFORE US, WHEREIN TRAINING AVAILED BY EMPLOYEES OF ASSESSEE WERE WEB BASED SER VICES AVAILABLE ON INTERNET AND NO TECHNICAL KNOWLEDGE WAS BEING IMPAR TED BY SERVICE PROVIDER AND THE REVENUE HAS FAILED TO DEMONSTRATE THAT THE SERVICES DID INVOLVE TRANSFER OF TECHNOLOGY AND IN THE ABSENCE OF SAME, IT CANNOT BE SAID TO BE PAYMENTS IN THE NATURE OF FEES FOR TECHNICAL SERVIC ES. APPLYING THE SAID RATIO, WE HOLD THAT THERE WAS NO LIABILITY UPON THE ASSESSEE TO DEDUCT TAX AT SOURCE ON THE AFORESAID PAYMENTS AND HENCE, ASSESSE E CANNOT BE HELD TO BE IN DEFAULT UNDER SECTION 201(1) AND 201(1A) OF THE ACT. THE GROUNDS OF APPEAL NO.6 TO 8 ARE THUS, ALLOWED. . 110. ON THE OTHER HAND, THE LEARNED AUTHORIZED REPR ESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT FACTUAL ASPECTS OF SA ID CASE WERE ENTIRELY DIFFERENT, WHERE A OFFSHORE ENTITY HAD DEPUTED TECH NICAL PERSONNEL TO TRAIN INDIAN EMPLOYEES AND HENCE, IT WAS CASE OF MAKE AV AILABLE OF SKILL BEHIND SERVICES, TO OTHER PARTIES. IN THIS REGARD, HE HAS PLACED RELIANCE ON THE RATIO LAID DOWN BY THE AHMEDABAD BENCH OF TRIBUNAL IN THE CASE OF BURT HILL DESIGN (P.) LTD. (SUPRA), WHEREIN TAX WAS DEDUCTED OUT OF SALARY AND IT WAS HELD THAT THERE WAS NO LIABILITY TO DEDUCT TAX UNDE R SECTION 201(1) OF THE ACT. IN RESPECT OF RATIO LAID DOWN BY THE HONBLE HIGH C OURT OF DELHI IN THE CASE OF CENTRICA INDIA OFFSHORE PVT. LTD. VS. CIT (SUPRA), IT WAS POINTED OUT THAT WHERE SLP HAS BEEN DISMISSED, THEN IT CANNOT BE HEL D TO BE LAW OF LAND AS PROPOUNDED BY THE HON'BLE SUPREME COURT IN V.M. SAL GAOCAR & BROS. (P.) LTD. VS. CIT (SUPRA) AND PALAM GAS SERVICE VS. CIT (SUPR A). ACCORDINGLY, WE HOLD THAT WHERE THE HON'BLE SUPREME COURT HAS ONLY DISMI SSED SLP, THEN NO RULING ON PRINCIPLE BEING LAID DOWN BY THE APEX COU RT, THE PROPOSITION LAID DOWN BY THE JURISDICTIONAL HIGH COURT OF BOMBAY IN DIT VS. M/S. MARK & SPENCER RELIANCE INDIA P. LTD. (SUPRA) WOULD RULE. ACCORDINGLY, WE FURTHER HOLD THAT THE ASSESSEE HAVING DEDUCTED TAX AT SOURC E OUT OF SALARY PAID TO EMPLOYEES DEPUTED, HAS NOT DEFAULTED UNDER SECTION 201(1) / 201(1A) OF THE ACT. THE GROUNDS OF APPEAL NO.9 TO 12 ARE THUS, ALL OWED. 6. BEFORE US, NO MATERIAL HAS BEEN PLACED BY REVENUE TO DEMONSTRATE THAT THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR A .YS. 2007-08 AND 7 2008-09 (SUPRA) HAS BEEN SET ASIDE / STAYED BY HIGHER JUDICIAL FORUM. REVENUE HAS ALSO NOT POINTED OUT ANY DISTINGUISHING FEATU RE IN THE FACTS OF THE PRESENT CASE AND IN THE CASE OF ASSESSEES OWN CASE IN EARLIER YEARS. WE THEREFORE, RELYING ON THE DECISION OF THE TRIBUNAL IN ASSESS EES OWN CASE IN EARLIER YEARS (SUPRA) AND FOR SIMILAR REASONS HOLD THAT ASS ESSEE HAS NOT DEFAULTED IN DEDUCTION OF TDS ON THE IMPUGNED PAYMENTS MA DE. WE THEREFORE SET ASIDE THE ORDER OF AO PASSED U/S 201(1) / 201(1A) OF THE ACT. THUS, THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 1 ST DAY OF AUGUST, 2019. SD/- SD/- ( VIKAS AWASTHY ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 1 ST AUGUST, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-13, PUNE. PR. CIT- 5, PUNE. '#$ %%&',) &', / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // -./%0&1 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.