ASST CIT 16(1), MUMBAI V. M/S HINDUSTAN THOMPSON ASSOCIATES PVT LTD, MUMBAI

ITA 764/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5813 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2016-2017
• Appeal Filed On: 30-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH HELIWAL LD
• Assessee Lawyers: AASTHA DHAWAN LD
• Keywords: TDS
• Section: 40(a)(ia); 194C; 20

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE HONBLE SHRI VIKAS AWASTHY, JM AND HONBLE SHRI MANO J KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) 1 . ./ I.T.A. NO. 765 /MUM/20 20 ( / ASSESSMENT YEAR : 2015 - 16 ) & 2 . ./ I.T.A. NO. 764 /MUM/2020 ( / ASSESSMENT YEAR : 2016 - 17 ) ACIT CIRCLE - 16 (1) R. NO. 439 , 4 TH FLOOR AAYKAR BHAVAN, M. K. ROAD, MUMBAI - 400 021 / VS. M/S HINDUSTAN THOMPSON ASSOCIATES PVT. LTD. 4 TH FLOOR, PENINSULA CHAMBERS, GANAPAT RAO KADAM MARG LOWER PAREL, MUMBAI - 400 013 ./ ./ PAN/GIR NO . A AA CH - 1463 - M ( / APPELL ANT ) : ( / RESPONDENT ) REVENUE BY : SHRI ASHISH HELIWAL LD. D R ASSESSEE BY : SHRI AASTHA DHAWAN LD. A R / DATE OF HEARING : 25 /08 /2021 / DATE OF PRONOUNCEMENT : 15/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCO UNTANT MEMBER) 1. AFORESAID APPEALS BY REVENUE FOR ASSESSMENT YEAR S (AY) 2015 - 16 & 2016 - 17 ARISES OUT OF SEPARATE ORDERS OF LEARNED FIRST APPELLATE AUTHORITY. HOWEVER, THE GRIEVANCE IS COMMON AND THEREFORE, THE APPEALS WERE HEAR TOGETHER AND ARE NOW BEING DISPOSED - OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. THE REVENUE IS 2 AGGRIEVED BY THE FACT THAT LD. CIT(A) HAS DELETED DISALLOWANCE U/S 40(A)(IA) IN RESPECT OF PAYMENTS MADE BY ASSESSEE TO FIELD AGENTS SINCE THE ASSESSEE DEDUCTED TAX AT SOURCE U/S 194C AS AGAINST THE OPINION OF LD. AO THAT THE TDS SHOULD HAVE BEEN MADE AT HIGHER RATE AS PRESCRIBED U/S 194J. 2. THE LD. COUNSEL FOR ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN ASSESSEES FAVOR BY SERIES OF DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR AYS 200 5 - 06 TO 2014 - 15 AND LD. CIT(A) HAS MERELY FOLLOWED THE SAME. THE COPIES OF THE ORDERS HAVE BEEN PLACED ON RECORD. THIS FACT REMAINS UNCONTROVERTED BEFORE US. NO DISTINCTION IN FACTS COULD BE DEMON STRATED BEFORE US. 3. THE FACTS IN AY 2015 - 16 ARE THAT THE ASSESSEE MADE PAYMENT TO FIELD AGENTS FOR CONDUCTING RESEARCH SURVEY AND DATA ANALYSIS & TABULATION. THE ASSESSEE DEDUCTED TAX AT SOURCE U/S 194C.HOWEVER, LD. AO OPINED THAT THE SAID SERVICES WOULD REQUIRE USE OF HIGHLY PROFESSIONAL PERSONNEL AND WOULD REQUIRE TECHNICAL STAFF TO RENDER THE SERVICES. THEREFORE, TAX WAS TO BE DEDUCTED AT HIGHER RATES AS PRESCRIBED FOR PROFESSIONAL PAYMENTS U/S 194J. THEREFORE, LD. AO MADE DISALLOWANCE OF 30% AGAINST A GGREGATE PAYMENT OF RS.48.12 CRORES U/S 40(A)(IA) WHICH RESULTED INTO DISALLOWANCE OF RS.14.43 CRORES IN THE HANDS OF THE ASSESSEE. THE AMOUNT OF DISALLOWANCE IN AY 2016 - 17 IS RS.14.13 CRORES. 4. UPON FURTHER APPEAL, LD. CIT(A) OBSERVED THAT THE ISSUE WAS COVERED IN ASSESSEES OWN CASE BY VARIOUS ORDERS OF THE TRIBUNAL AND THEREFORE, THE DISALLOWANCE WAS TO BE DELETED. THE COORDINATE BENCH IN AY 2012 - 13, AFTER CONSIDERING THE STATUTORY PROVISIONS AND VARIOUS JUDICIAL PRONOUNCEMENTS, HELD THAT THE PROVISIONS OF SEC.40(A)(IA) WOULD 3 HAVE NO APPLICABILITY IN CASE OF SHORT DEDUCTION OF TAX AT SOURCE AS PER THE DECISION OF HONBLE CALCUTTA HIGH COURT IN CIT V/S S.K.TEKRIWAL (361 ITR 432). AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5. AFTER GOING THROU GH IMPUGNED ORDER, IT COULD BE SEEN THAT THE ISSUE IS COVERED IN ASSESSEES FAVOR BY SERIES OF DECISIONS OF TRIBUNAL IN ASSESSEES OWN CASE RIGHT FROM AYS 2005 - 06 TO 2014 - 15. SINCE THERE IS NO CHANGE IN FACTS, NO INFIRMITY COULD BE FOUND IN THE IMPUGNED OR DER S . FINDING NO REASON TO DEVIATE FROM THE EARLIER VIEW OF THE COORDINATE BENCHES, WE DISMISS THE APPEAL S FOR BOTH THE YEARS. 6. BOTH THE APPEALS STAND DISMISSED. ORDER PRONOUNCED ON 15 TH SEPTEMBER, 2021. SD/ - SD/ - ( VIKAS AWASTHY ) (MANOJ KUMA R AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 15/09/2021 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.