MODY INSTITUTE OF TECHNOLOGY & SCIENCE, SIKAR V. INCOME TAX OFFICER, JAIPUR

ITA 697/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2203 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-11-2017
• Assessment Year: 2014-2015
• Appeal Filed On: 14-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Assessee Lawyers: SHRAVAN KR GUPTA
• Section: 194C; 201(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA- @ ITA NOS. 697 & 698/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2014-15 & 2015-16 MODY INSTITUTE OF TECHNOLOGY & SCIENCE, LAXMANGARH. CUKE VS. I.T.O. TDS-3, JAIPUR. TAN NO.: JPRM 03251 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SHRAVAN KR.GUPTA (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K @ DATE OF HEARING : 17/01/2018 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 18/01/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. BOTH ARE THE APPEALS FILED BY THE ASSESSEE EMANATE S FROM THE SEPARATE ORDERS OF THE LD. CIT(A)-III, JAIPUR DATED 05/06/2017 PERTAINING TO THE ASSESSMENT YEARS 2014-15 & 2015-16. GROUNDS TAKEN IN BOTH THE APPEALS BY THE ASSESSEE ARE REPRODUCED AS UNDER: GROUNDS OF ITA 697/JP/2017 1. THE IMPUGNED PENALTY ORDER U/S 201(1)/201(1A) DATED 19.11.2014 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE TH E SAME MAY KINDLY BE QUASHED. ITA 697 & 698/JP/2017_ MODY INSTITUTE OF TECHNOLOGY VS. ITO TDS-3 2 2. RS.1,79,780/- : THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE DEMAND OF RS. 1 ,79,780/- U/S 201 (1) ON ACCOUNT OF SHORT DEDUCTION OF TDS TO THE PAYMENT MADE FOR CONTRACT U/S 194C @ 2% TREATING TH E SAME AS PAYMENT FOR TECHNICAL AND PROFESSIONAL U/S 194J @10%. THE DEMAND SO RAISED/IMPOSED BY THE AO AND NO T CLEARLY DELETED BY THE CIT(A) IS TOTALLY CONTRARY T O THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITIONS MAY KINDLY BE DELETED IN FULL. 3. RS.21,391/- : THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE CHARGING OF INT EREST OF RS. 21,391 U/S 201(1 A) ON ACCOUNT OF SHORT DEDUCTION O F TDS OF RS. 1,79,780/- U/S 201 (1) TO THE PAYMENT MADE FOR CONTRACT U/S 194C TREATING THE SAME AS PAYMENT FOR TECHNICAL AND PROFESSIONAL U/S 194J. THE INTEREST SO CHARGED BY T HE AO AND SUSTAINED BY THE ID. CIT(A) IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME MAY KINDLY BE DELETED IN FULL. GROUNDS OF ITA 698/JP/2017 1. THE IMPUGNED PENALTY ORDER U/S 201(1)/201(1A) DATED 19.11.2014 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE TH E SAME MAY KINDLY BE QUASHED. 2. RS.35,956/- : THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE DEMAND OF RS.35 ,956/- U/S 201(1) ON ACCOUNT OF SHORT DEDUCTION OF TDS TO THE PAYMENT MADE FOR CONTRACT U/S 194C @ 2% TREATING THE SAME A S PAYMENT FOR TECHNICAL AND PROFESSIONAL U/S 194J @10 %. THE DEMAND SO RAISED/IMPOSED BY THE AO AND NOT CLEARLY DELETED BY THE CIT(A) IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE ADDITIONS MAY KIN DLY BE DELETED IN FULL. 3. RS.2,517/- : THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FAC TS OF THE CASE IN SUSTAINING THE CHARGING OF INTEREST OF RS. 2,517/- U/S 201(1 A) ON ACCOUNT OF SHORT DEDUCTION OF TDS OF ITA 697 & 698/JP/2017_ MODY INSTITUTE OF TECHNOLOGY VS. ITO TDS-3 3 RS. 35,956/- U/S 201(1) TO THE PAYMENT MADE FOR CON TRACT U/S 194C TREATING THE SAME AS PAYMENT FOR TECHNICAL AND PROFESSIONAL U/S 194J. THE INTEREST SO CHARGED BY T HE AO AND SUSTAINED BY THE ID. CIT(A) IS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE SAME MAY KINDLY BE DELETED IN FULL. 2. SINCE, COMMON ISSUES ARE INVOLVED IN BOTH THE AP PEALS, THEREFORE, BOTH THE APPEALS ARE BEING HEARD TOGETHER AND FOR T HE SAKE OF CONVENIENCE AND BREVITY, COMMON ORDER IS BEING PASS ED. 3. THE LD. CIT(A) HAS DECIDED THE ISSUE IN ITA NO. 69 7/JP/2017 AS UNDER: 4.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, FINDINGS OF THE AO AND SUBMISSION OF THE APPELLANT. THE FIRST ISSUE INVOLV ED HERE IS WHETHER PAYMENT MADE FOR UPDATION AND REGULAR MAINTENANCE O F THE WEBSITE, CREATIVE AD DESIGN, SOCIAL MEDIA MARKETING REPRESEN TS PAYMENT FOR CONTRACT WORK OR TECHNICAL SERVICES. ASSESSEE HAS D EDUCTED TDS @ 2% AND WHEREAS AO SAID IT IS A PAYMENT FOR TECHNICAL S ERVICE AND TDS SHOULD HAVE BEEN MADE @ 10%. PERUSAL OF CONTRACT AND SERVICES RENDERED, IT IS S EEN THAT THE SERVICES REFERRED IN THE CONTRACT ARE MORE PROFESSIONAL/TECH NICAL. THEREFORE AO CORRECTLY HELD THAT TDS SHOULD HAVE BEEN DEDUCTED @ 10% OF 194J. HENCE AO ACTION IS CONFIRMED. ALTERNATE PLEA OF ASSESSEE THAT TAX HAS ALREADY BE EN PAID BY THE RECEIVER AND THEREFORE IN VIEW OF THE DECISION OF S UPREME COURT IN CASE OF HINDUSTAN COCACOLA BEVERAGE (PVT.) LTD. VS CIT(2 93 ITR 226), THE DEMAND TO THE EXTENT OF TAX DEDUCTED SHOULD NOT BE RAISED, IS NOT ACCEPTABLE AS ASSESSEE HAS NOT FILED ANY EVIDENCE O F THE SAME IN SPECIFIC PRESCRIBED FORM THOUGH HE FILED CERTIFICATE AND COP Y OF RETURN. IF THE ITA 697 & 698/JP/2017_ MODY INSTITUTE OF TECHNOLOGY VS. ITO TDS-3 4 SAME IS FILED BEFORE THE AO, THE DEMAND TO THIS EXT ENT MAY BE DELETED. INTEREST U/S 201(1A) IS MANDATORY AND THEREFORE CON FIRMED. 4. AFTER HEARING BOTH THE SIDES, THE BENCH FIND THA T THE LD. CIT(A) HAS RIGHTLY SUSTAINED THE ISSUE REGARDING THE DEDUCTION OF TAX @ 10% TREATING THE PAYMENT AS FOR TECHNICAL AND PROFESSIO NAL SERVICES U/S 194J OF THE INCOME TAX ACT, 1961. THE LD. CIT(A) HAS ALSO R IGHTLY SUSTAINED THE CHARGING INTEREST U/S 201(1A) OF THE ACT ON THE SHORT DEDUCTION OF TDS OF RS. 1,79,780/-. HOWEVER, THE ALTERNATE PLEA OF THE LD AR OF THE ASSESSEE THAT THE MATTER MAY BE RESTORED BACK TO TH E FILE OF THE ASSESSING OFFICER IN VIEW OF THE DECISION OF THE HON 'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VS. CIT 293 ITR 226. AFTER CONSIDERING THE FACTUAL AND LEGAL ASPECT OF THE ISSUE, THE BENCH IS OF THE VIEW THAT IN THE INTEREST OF JUSTIC E AND EQUITY, THE MATTER NEEDS A RELOOK AT THE LEVEL OF THE ASSESSING OFFICE R IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HI NDUSTAN COCA COLA BEVERAGES PVT. LTD. VS. CIT (SUPRA). ACCORDINGLY, TH E ISSUE RAISED IN THE APPEAL IS RESTORED BACK TO THE FILE OF THE ASSESSIN G OFFICER TO BE DECIDED DE NOVO IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VS. CIT (SUP RA). THE ASSESSEE SHALL SUBMIT NECESSARY DETAILS AS REQUIRED BY LAW. 5. ITA 698/JP/2017. ITA 697 & 698/JP/2017_ MODY INSTITUTE OF TECHNOLOGY VS. ITO TDS-3 5 IN THIS CASE, THE ASSESSEE HAS TAKEN SIMILAR IDENT ICAL GROUNDS AS WERE TAKEN IN ITA NO. 697/JP/2017. THE LD. AR OF THE ASSESSEE HAS ALSO TAKEN IDENTICAL SUBMISSIONS, THEREFORE, THE SIMILAR FINDINGS AS STATED IN ITA NO. 697/JP/2017 SHALL APPLY MUTATIS MUNTADIS IN THIS CASE ALSO. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 18/01/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ TK;IQJ TK;IQJ TK;IQJ@ @@ @ JAIPUR FNUKAD@ DATED:- 18 TH JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- MODY INSTITUTE OF TECHNOLOGY & SCIENCE , LAXMANGARH. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O. TDS-3, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 697 & 698/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR