Super Cassettes Industries Pvt. Ltd., Noida V. ACIT (TDS), Noida

ITA 702/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2887 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 09-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 194C; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F , NEW DELHI BEFORE SHRI G.D.AGRAWAL , PRESIDENT AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 702 /DEL/201 6 A.Y. 20 1 0 - 11 SUPER CASSETTES INDUSTRIES P . LTD. PLOT NO. FC 1, FILM CITY SECTOR 16A NOIDA 201 301 (UP) VS . ACIT (TDS) ROOM NO.110, AYAKAR BHAWAN A 2D, SECTOR 24 NOIDA 201 301 (UP) (APPELLANT) (RESPONDENT) APPELLANT BY SH. HIREN MEHTA, CA RESPONDENT BY SHRI ATIQ AHMAD, SR.D.R. DATE OF HEARING 20/12/2017 DATE OF PRONOUNCEMENT 27/12/2017 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER T HE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 30 .11.2015 PASSED BY LD.CIT(A) - 1, NOIDA FOR ASSESSMENT YEAR 2010 - 11 ON THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) I, NOIDA, ERRED IN CONFIRMING THE ADDITION TREATING BUS HIRE CHARGES AT PAR WITH THE RENT PAID FOR PLANT & MACHINERY THUS MISCONSTRUED THE PROVISION AND CHARGED TDS @ 10.3% U/S 194I OF THE ACT, AGAINST THE DEDUCTION MADE BY THE ASSESSEE COMPANY @ 2% U/S ITA 702/DEL/2016 ASSESSMENT YEAR 2010 - 11 SUPER CASSETTES INDUSTRIES P LTD. PAGE 2 OF 6 194C OF THE ACT, AS THIS IS A CONTRACT OF SERVICE NOT LEASE AND THEREBY WORKING OUT A SHORT DEDUCTION OF RS.1,61,098/ - ALONG WITH CONSEQUENTIAL INTEREST OF RS.70,513/ - U/S 201(1A) AGGREGATING TO RS.2,31,611/ - . 2. THE APPELLATE CRAVES FOR ANY ADDITION, MODIFICATION, DELETION OF GROUNDS OF APPEAL IF FIND NECESSARY DURING THE COURSE OF APPEAL . 2 . BRIEF FACTS OF THE CASE ARE AS UNDER . A SSESSEE IS A COMPANY , AND IS IN THE BUSINESS OF MANUFACTURING OF CDS, DVDS, CASSETTES, FILM PRODUCTION, PRODUCING MUSIC ALBUMS GIVING STUDIOS ON RENT ETC. DURING THE YEAR UNDER CONSIDERATION AS SESSEE ENTERED INTO TRANSPORT CONTRACTS WITH VARIOUS BUS OPERATORS FOR PICKUP AND DROP FACILITY OF EMPLOYEES TO AND FRO FROM WORKPLACE, BEING OFFICE OR FACTORY TO THEIR RESIDEN CE . PAYMENTS TO THESE CONTRACTS ARE MADE AFTER DEDUCTING TD S UNDER SECTION 194C OF THE ACT FOR VEHICLE HIRING CHARGES. 2.1. LD. AO DURING THE ASSESSMENT PROCEEDINGS WAS OF THE OPINION THAT ASSESSEE SHOULD HAVE DEDUCTED TDS U/S 19 4 I AT THE RATE OF 10.3%. ACCORDINGLY HE MADE ADDITION BY COMPUTING TD S UNDER SECTION 194I OF 10%. 2.2 . A GGRIEVED BY ASSESSMENT ORDER PASSED ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A). 2.3 . ASSESSEE SUBMITTED THAT FOR TRANSPORTATION OF ITS EMPLOYEES ASSESSEE ENTERED INTO CONTRACTS WITH VARIOUS BUS/VEHICLE CONTRACTORS. IT WAS SUBMITTED THAT ASSESSEE HAS NOT ACQUIRED ANY RIGHT OF POSSESSION OF BUSES OR VEHICLES WHICH WAS USED FOR THE ITA 702/DEL/2016 ASSESSMENT YEAR 2010 - 11 SUPER CASSETTES INDUSTRIES P LTD. PAGE 3 OF 6 PURPOSES OF TRANSPORTATION OF ITS EMPLOYEES. LD. CIT (A) HOWEVER CONFIRMED THE ADDITION MADE BY LD. AO. 2. 4 . AGGRIEVED BY THE ORDER OF LD. CIT (A) ASSESSEE IS IN APPEAL BEFORE US NOW. 3. THE ONLY ISSUE RA IS ED IN THE PRESENT APPEAL IS IN RESPECT OF CHANGE IN THE TDS PROVISION TO 194 I BY LDAO INSTEAD OF 194 C AS COMPUTED BY ASSESSEE AND LEVY OF INTEREST UNDER SECTION 201(1) /201 (1A). 3.1. AT THE OUTSET , IT WAS SUBMITTED THAT THE ISSUE STANDS SQUARELY COVERED BY THE ORDER OF THIS T RIBUNAL IN ASSESSEE S OWN CASE FOR PRECEDING ASSESSMENT YEARS. HE SUBMITTED A COPY OF THE ORDER IN A PAPER BOOK FILED BEFORE US WHICH IS PLACED AT PAGE 41 TO 49. LD. AR SUBMITTED THAT IN ITA NO. 5267 AND 5268/DEL/2013 FOR ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 THIS T RIBUNAL V IDE ORDER DATED 29/04/15 DECIDED THE ISSUE IN FAVOUR OF ASSESSEE AS UNDER: 6. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ENTIRE M ATERIAL AVAILABLE ON RECORD. HAVING REGARD TO THE AGREEMENT ENTERED INTO BY ASSESSEE, THE CONTENTS OF WHICH HAVE BEEN SUMMARISED BY LD. CIT (A) IN HIS ORDER, IT IS EVIDENT THAT ASSESSEE HAD NOT ACQUIRED ANY RIGHT OF POSSESSION OF BUSES THAT ITS VEHICLES WH ICH IS AN ESSENTIAL INGREDIENT OF HIRING. ASSESSEE HAD NO INTEREST THAT IS AS A LESSEE OR SUBLEASE OR TENANT IN RESPECT OF THE BUSES WHICH WERE BEING USED FOR TRANSPORTATION OF THE EMPLOYEES. THE EXISTENCE OF LANDLORD/TENANT RELATION OR LICENSOR/LICENSEE I S A MUST BEFORE THE PAYMENT IN QUESTION CAN BE TERMED AS A RENT. ACCORDINGLY WE SEE NO REASON TO INTERFERE IN THE ORDER OF LD. CIT (A) IN DELETING THE ADDITION ON ACCOUNT OF SHORT ITA 702/DEL/2016 ASSESSMENT YEAR 2010 - 11 SUPER CASSETTES INDUSTRIES P LTD. PAGE 4 OF 6 DEDUCTION AS ALSO THE INTEREST CHARGED UNDER SECTION 201 (1)/201 (1A). 3. 2 . ON COMPARING ISSUE RAISED IN THE PRESENT APPEAL WITH THAT OF THE FACTS/ISSUES DISCUSSED AND RAISED IN ASSESSMENT YEAR 2008 - 09 AND 2009 - 10, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO FACTUAL/MATERIAL CHANGE IN THE YEAR UNDER CONSIDERATION VIS - A - VIS OBSERVED THAT GROUNDS RAISED IN THE PRECEDING ASSESSMENT YEAR BEING ASSESSMENT YEAR 2008 - 09 AND 2009 - 10, ARE IDENTICAL TO THE GROUNDS RAISED IN THE PRESENT APPEAL BEFORE US. IT IS FURTHER OBSERVED THAT FROM THE ASSESSMENT ORDER PASSED FOR THE YEAR UNDER CO NSIDERATION THE SURVEY WAS CONDUCTED ON 12/11/09 TO CHECK CORRECT APPLICABILITY OF TDS PROVISIONS. FURTHER ORDER UNDER SECTION 201 (1)/201 (1A) FOR ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 WAS PASSED ON 31/03/11 BASED ON WHICH THE VERIFICATION LETTER FOR ASSESS MENT YEAR 2010 - 11 (BEING THE APPEAL FOR ASSESSMENT YEAR UNDER CONSIDERATION BEFORE US) WAS ISSUED. 3. 3 . LD.AR HAD SUBMITTED THAT THERE IS NO CHANGE IN THE FACTS OF THE PRESENT YEAR VIS - - VIS, A.Y. 2008 - 09 AND 2009 - 10. LD.CIT(A)/LD.AO HAS ALSO NOT BROUGHT ON RECORD ANY DISTINGUISHING FEATURES FOR THE YEAR UNDER CONSIDERATION. WE THEREFORE FOR THE REASONS GIVEN BY THIS TRIBUNAL VIDE ORDER DATED 29/04/15 (SUPRA) FOR ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 DELETE THE ADDITION MADE BY LD. AO UNDER SECTION 201 (1) /201 (1A) OF THE A CT. WE ARE THEREFORE INCLINED TO FOLLOW THE OBSERVATIONS OF THIS TRIBUNAL IN ASSESSEE S OWN CASE FOR ASSESSMENT YEAR 2008 - 09 AND 2009 - 10 (SUPRA), WHICH IS REPRODUCED HEREINABOVE. ITA 702/DEL/2016 ASSESSMENT YEAR 2010 - 11 SUPER CASSETTES INDUSTRIES P LTD. PAGE 5 OF 6 3. 4 . ACCORDINGLY GROUNDS RAISED BY THE ASSESSEE STANDS ALLO WED. 4. IN THE RESULT APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 7 T H DECEMBER, 2017. S D / - S D / - ( G.D.AGRAWAL ) (BEENA A PILLAI) PRESIDENT JUDICIAL MEMBER DATED : 2 7 T H DECEMBER , 2017. *MV COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASST. REGISTRAR ITAT, DELHI BENCHES, NEW DELHI ITA 702/DEL/2016 ASSESSMENT YEAR 2010 - 11 SUPER CASSETTES INDUSTRIES P LTD. PAGE 6 OF 6