M/s. Madhya Pradesh Paschim Kshetra Vidyut Vitran Co. Ltd., Indore V. THE DCIT (TDS), Indore

ITA 654/IND/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82710 (ITAT-INDORE)
• Duration Of Justice: 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 27-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Section: 201(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ VK;DJ VIHYH; VF/KDJ.K] BUNKSJ U;K;IHB] BUNKSJ IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE .., , BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NOS.653, 654 & 655/IND/2014 AND S.A. NOS.11, 12, 13/IND/2014 (IN ITA NOS. 653, 654 & 655/IND/2014) ASSESSMENT YEARS : 2011-12, 2012-13 & 2013-14 MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITARAN CO LTD, 3, INDUSTRIAL AREA, INDORE / VS. DCIT (TDS) INDORE ./ ./ PAN/GIR/TAN NO. : BPLM 04716 F ( # / APPELLANT ) .. ( $%# / RESPONDENT ) # / APPELLANT BY : SHRI MANOJ MUNSHI, ADV. $%# ' / RESPONDENT BY : SHRI R. A. VERMA, SR. DR. ' * / DATE OF HEARING 19.11.2014 ' * / DATE OF PRONOUNCEMENT 19 .11.2014 / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THERE ARE THE APPEALS FILED BY THE ASSESSEE AGAIN ST A CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME-TA X (APPEALS)-I, INDORE DATED 04.08.2014 FOR THE FINANCIAL YEARS 201 0-11, 2011-12, 2012-13 AND ALSO STAY PETITIONS FILED BY THE ASSESS EE FOR THOSE YEARS. 2. AT THE TIME OF HEARING, THE AR OF THE ASSESSEE SUBMITTED THAT IN GROUND NOS.2.1 TO 2.6 OF THE APPEAL THE ISSUE INVOL VED IS THAT THE ITA NOS. 653 TO 655/IND/2014 & SP NOS.11 TO 13/IND/2014 MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITARAN CO LT D AY 2011-12, 2012-13 & 2013-14 - 2 - ASSESSEE IS NOT LIABLE TO DEDUCT TAX AT SOURCE FROM PAYMENTS MADE TO MADHYA PRADESH POWER TRANSMISSION COMPANY (TRANSCO) TOWARDS WHEELING AND SLDC CHARGES AS THE SAME DOES NOT FALL UNDER ANY OF THE PROVISIONS OF SECTION 194-C, 194-I OR 194-J OF THE INCOME-TAX ACT. IN GROUND NOS.2.7 TO 2.11, THE ISSUE INVOLVED IS TH AT WHEN THE PAYEE IS NOT LIABLE FOR PAYMENT OF INCOME-TAX, THEN THE A SSESSEE IS NOT LIABLE FOR PAYMENT OF INTEREST U/S 201(1A) OF THE ACT FOR NON-DEDUCTION OF TDS. 3. THE AR OF THE ASSESSEE FURTHER SUBMITTED THAT TH E ISSUES ARE COVERED BY THE ORDER OF THIS BENCH OF THE TRIBUNAL DATED 31.05.2012 IN THE CASE OF THE ASSESSEE ITSELF, PASSED IN ITA N OS. 54 TO 56/IND/2012 FOR AYS 2005-06 TO 2007-08, WHEREIN AT PARAGRAPH 8 AT PAGE NO.9 OF THE ORDER, THE ISSUE HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH . IT WAS, THEREFORE, HIS PRAYER THAT FOLLOWING THE SAME, THESE APPEALS O F THE ASSESSEE SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE ASS ESSING OFFICER FOR FRESH ADJUDICATION WITH SIMILAR DIRECTION OF THE TR IBUNAL AS GIVEN IN THE AYS 2005-06 TO 2007-08. 4. THE DR DID NOT HAVE ANY OBJECTION TO THE ABOVE S UBMISSIONS OF THE AR OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER, I N THE INSTANT CASE, HAS HELD THE ASSESSEE LIABLE FOR PAYMENT OF INTERES T U/S 201(1A) OF THE ACT FOR NOT DEDUCTING TDS FROM THE PAYMENTS MAD E TO M/S. MP POWER TRANSMISSION COMPANY LIMITED, JABALPUR U/S 19 4-J OF THE ACT FOR RS.5,00,66,400/- IN FY 2010-11 AND FOR RS.5,45, 05,500/- IN FY ITA NOS. 653 TO 655/IND/2014 & SP NOS.11 TO 13/IND/2014 MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITARAN CO LT D AY 2011-12, 2012-13 & 2013-14 - 3 - 2011-12. THE ASSESSING OFFICER HAS ALSO HELD THAT T HE ASSESSEE, AS AN ASSESSEE IN DEFAULT FOR TDS OF RS.49,12,40,000 U/S 201(1) AND LIABLE FOR INTEREST OF RS.3,92,94,500/- IN FY 2012-13. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THE ASSESSEE HAS FILED BEFORE US THE ORDER OF THE TRIBUNAL IN ITA NOS. 54 TO 56/IND/2012 IN ASSESSEES OWN CASE FOR AYS 2005-06 TO 2007-08, WH EREIN THE TRIBUNAL HAS RESTORED BACK THE ISSUE TO THE FILE OF THE ASSESSING OFFICER BY OBSERVING AS UNDER:- 8. IN VIEW OF THE ABOVE DISCUSSION, WE RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR DECIDING AFRES H BY KEEPING IN VIEW THE DECISION OF COORDINATE BENCH AS WELL AS DE CISION OF HONBLE SUPREME COURT, DISCUSSED HEREINABOVE. THE A SSESSING OFFICER IS TO FIND OUT IF THE RECIPIENT OF INCOME H AVE NO TAX LIABILITY AS PER ASSESSMENT FRAMED U/S 143(3), THEN NO INTEREST IS LEVIABLE ON THE ASSESSEE FOR NON-DEDUCTION/DELAY IN DEPOSIT OF TDS. EVEN THOUGH THE LD. AUTHORIZED REPRESENTATIVE HAS ALSO ARGUED ON THE TECHNICAL NATURE OF SERVICES FOR WHIC H PAYMENT WAS MADE AND APPLICABILITY OF PROVISIONS OF SECTION 194-J/194-I OF INCOME-TAX ACT, 1961. SINCE WE HAVE DECIDED THE ISSUE ON THE MAIN PLEA, WE ARE NOT DELIBERATING UPON THE OTH ER ASPECTS. WE DIRECT ACCORDINGLY. AS BOTH THE PARTIES BEFORE US AGREED THAT THE ISSUE SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH WITH THE SAME DIRECTION AS GIVEN BY THE TRIB UNAL IN AYS 2005- 06 TO 2007-08, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSIN G OFFICER FOR ADJUDICATION OF THE ISSUE OF LIABILITY OF THE ASSES SEE FOR INTEREST U/S ITA NOS. 653 TO 655/IND/2014 & SP NOS.11 TO 13/IND/2014 MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITARAN CO LT D AY 2011-12, 2012-13 & 2013-14 - 4 - 201(1A) FOR ALL THE YEARS UNDER CONSIDERATION AFRES H IN THE LIGHT OF THE DIRECTION GIVEN BY THE TRIBUNAL IN AYS 2005-06 TO 2 007-08 AS QUOTED ABOVE. FURTHER, REGARDING LIABILITY FOR TDS U/S 2 01(1) IN FY 2012-13 OF RS.49,12,40,000/-, WE SET ASIDE THE ORDERS OF TH E LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSE SSING OFFICER TO ADJUDICATE THE ISSUE AFRESH IN LIGHT OF THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BE VERAGE P. LTD V. CIT, (2007) 293 ITR 226 (SC), WHEREIN IT WAS HELD T HAT WHEN THE PAYEE HAD PAID FULL TAX, THEN THE ASSESSEE CANNOT B E TREATED AS AN ASSESSEE IN DEFAULT FOR TDS U/S 201(1) OF THE ACT. THUS, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN VIEW OF OUR ABOVE DECISION IN THE APPEALS OF THE ASSESSEE, THE STAY PETITIONS FILED BY THE ASSESSEE HAVE BECOME IN FRUCTIOUS AND HENCE DISMISSED 7. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETITIONS FIL ED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE CLOSE OF THE HEARING IN THE PRESENCE OF THE PARTIES ON WEDNESDAY, THE 19 TH OF NOVEMBER, 2014 AT INDORE. SD/- SD/- ( ) ( .. ) ( KUL BHARAT ) ( N. S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED 19/11/2014 *BIJU T. ITA NOS. 653 TO 655/IND/2014 & SP NOS.11 TO 13/IND/2014 MADHYA PRADESH PASCHIM KSHETRA VIDYUT VITARAN CO LT D AY 2011-12, 2012-13 & 2013-14 - 5 - / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. 3 5 / CONCERNED CIT 4. 5 ( ) / THE CIT(A), INDORE 5. 6 $3 , * 3 , BUNKSJ / DR, ITAT, INDORE 6. 9 / GUARD FILE. / BY ORDER, (ASSTT.REGISTRAR) ITAT, INDORE