DCIT (International Taxation), Dehradun V. M/s. Express Drilling System LLC, Dehradun

ITA 6673/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4225 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURNDER PAL
• Assessee Lawyers: VISHAL MISRA
• Section: 234B

Judgement Text

1 ITA NO. 6673/DEL/2016 IN THE INCOME TAX APPELLATE TRIBU NAL DELHI BENCH: B NEW DELHI BEFORE SHRI G. D. AGRAWAL, PRESIDENT AND SH. LALIET KUMAR, JUDICI AL MEMBER ITA NO. 6673/DEL/201 6 ( A.Y 2008-09) DCIT (INTERNATIONAL TAXATION) DEHRADUN (APPELLANT) VS EXPRESS DRILLING SYSTEM LLC LTD. C/O. M/S. NANGIA & CO. 3 RD FLOOR, NCR PLAZA, NEW CANTT, ROAD DEHRADUN AABCE6891R (RESPONDENT) APPELLANT BY SH. SURNDER PAL, CIT DR RESPONDENT BY SH. AMIT ARORA & VISHAL MISRA, CA ORDER PER LALIET KUMAR, JM THE PRESENT APPEAL IS FILED BY THE REVENUE AGAINS T THE ORDER DATED 31/10/2016 PASSED BY CIT(A)-2, NOIDA FOR ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- ((I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN HOLDING THAT THE ASSESSEE IS NOT LIABL E TO PAY INTEREST U/S 234B OF THE ACT BY IGNORING THE FACT THAT THE ASSES SEE CANNOT ESCAPE THE LIABILITY TO PAY INTEREST U/S 234B OF THE I.T. ACT WHERE THE INCOME IS CLAIMED TO BE TAXABLE AT A LOWER RATE BUT IS EVENTU ALLY HELD TO BE CHARGEABLE TO TAX AT A HIGHER RATE IN ASSESSMENT PR OCEEDINGS. DATE OF HEARING 14.08.2018 DATE OF PRONOUNCEMENT 14 .08.2018 2 ITA NO. 6673/DEL/2016 (II) . WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED IN DIRECTING THE ASSESSI NG OFFICER NOT TO LEVY INTEREST U/S 234B OF THE INCOME TAX ACT, 1961 WHEN THE DECISION OF THE HONBLE DELHI HIGH COURT IN GE PACKAGED POWER INC H AS NOT ATTAINED FINALITY AS THE REVIEW APPLICATION OF THE REVENUE I S PENDING IN THE HONBLE SUPREME COURT. (III) THE APPELLANT PRAYS FOR LEAVE TO ADD, AMEND, MODIFY OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OR BEFORE THE HEARING OF THE APPEAL. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE CA SE OF THE REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE CO-ORDINATE BENCH IN THE MATTER OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 & 2011-12, IN ITA NO. 1534/DEL/2016 WHEREIN IDENTICAL ISSUE WAS ADJU DICATED BY THE BENCH AFTER RELYING UPON THE DECISION OF THE HONBLE JURI SDICTION HIGH COURT IN THE MATTER OF CIT VS. OIL LIMITED (ITA NO . 56 OF 2007) AND ALSO IN THE MATTER OF GE PACKAGED POWER INCT. (ITA NO. 353/DEL/2014). 3. THE LD. DR ON BEHALF OF THE REVENUE, HAS NOT DIS PUTE THIS FACT. 4. WE HAVE CAREFUL CONSIDERED THE RIVAL CONTENTIONS OF PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CO-ORDINATE BENCH IN PARA 6 HELD AS UNDER:- 6. WE HAVE HEARD LD. A.R. OF THE ASSESSEE AND PERU SED THE RELEVANT RECORDS, ESPECIALLY THE IMPUGNED ORDER. WE FIND THA T THE POSITION OF LAW AS IT STANDS TILL THE YEAR 2011-12 AS INTERPRETED BY V ARIOUS COURTS SUPPORT THE 3 ITA NO. 6673/DEL/2016 CONTENTION OF THE ASSESSEE THAT INTEREST ON ADVANCE TAX WAS NOT PAYABLE. APART FROM THE JUDGMENT OF JURISDICTIONAL HIGH COUR T IN THE CASE OF CIT VS. OIL LIMITED (ITA NO . 56 OF 2007), THE DECISION OF HON'BLE DELHI HIGH C OURT IN THE CASE OF GE PACKAGED POWER INC. (ITA NO. 353/201 4) AND CONNECTED MATTERS - TS-27-HC-2015 (DEL) ALSO IS IN FAVOUR OF THE ASSESSEE IN WHICH IT HAS BEEN HELD THAT THE PRIMARY LIABILITY OF DEDUCTI NG TAX (FOR THE PERIOD CONCERNED, SINCE THE LAW HAS UNDERGONE A CHANGE AFT ER THE FINANCE ACT , 2012) WAS THAT OF THE PAYER. THE PAYER WOULD BE AN ASSESSEE IN DEFAULT, ON FAILURE TO DISCHARGE THE OBLIGATION TO DEDUCT TA X, UNDER SECTION 201 OF THE ACT AND NO INTEREST WAS LEVIABLE ON THE ASSESSE S UNDER SECTION 234B OF THE ACT. THEREFORE, IN OUR CONSIDERED VIEW, THE LD. CIT(A) HAS RIGHTLY ALLOWED THIS ISSUE IN FAVOUR OF THE ASSESSE E BY RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT, WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART, HENCE, WE UPHOLD THE WELL REASONED ORDER PASSED BY THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDINGLY REJE CT THE GROUNDS RAISED BY THE REVENUE. 6.1 FOLLOWING THE CONSISTENT VIEW AS T AKEN IN ASSESSMENT YEAR 2010-11, AS AFORESAID, THE SIMILAR GROUND RAIS ED IN ASSESSMENT YEAR 2011-12 IS ALSO DECIDED IN FAVOUR OF THE ASSESSEE A ND AGAINST THE REVENUE. 5. RESPECTFULLY FOLLOWING THE DECISION OF THE CO-OR DINATE BENCH IN THE CASE ASSESSEE WE HERE BY DISMISS THE APPEAL FILED BY THE REVENUE, AS NO DISTINGUISHABLE FACT BROUGHT TO ANY NOTICE BY THE P ARTIES. 4 ITA NO. 6673/DEL/2016 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/8/2018 ORDER PRONOUNCED IN THE OPEN COURT ON 14TH AUGUST , 2018 . SD/- SD/- (G. D. AGRAWAL) (LALIET KUAMR) PRESIDENT JUDICIAL MEMBER DATED: 14/08/2018 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 6673/DEL/2016 DATE OF DICTATION 14.08.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14.08.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 4 .08.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 4 .08.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 4 .08.2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER