ITO, New Delhi V. M/s. Cantabill Retail India Ltd., New Delhi

ITA 819/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3482 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 11-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SURESH K GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. H. S. SIDHU, JUDICIAL MEMBER AND SH. SANJAY ARORA, ACCOUNTANT MEMBER ITA NOS. 818/DEL/2015 & 819/DEL/2015 ASSESSMENT YEARS: 2010-2011 & 2011-12 INCOME TAX OFFICER WARD 73 (4), NEW DELHI. VS CANTABILL RETAIL INDIA LTD., B- 47, 1 ST FLOOR, LAWRENCE ROAD, INDUSTRIAL AREA, NEW DELHI. [PAN: AAACK 3901B] (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ATIQ AHMAD, SR. DR RESPONDENT BY SHRI SURESH K. GUPTA, CA DATE OF HEARING: 21/02/2018 DATE OF PRONOUNCEMENT: /02/2018 ORDER PER SANJAY ARORA, AM: THIS IS A SET OF TWO APPEALS BY THE REVENUE ARISING OUT OF SEPARATE ORDERS OF EVEN DATE (11.11.2014) BY THE COMMISSIONER OF INCOM E TAX (APPEALS)-IX, NEW DELHI (CIT(A) FOR SHORT) FOR ASSESSMENT YEARS (AY S.) 2010-2011 & 2011-12, PARTLY ALLOWING THE ASSESSEES APPEALS CONTESTING T HE ORDERS U/SS. 201(1)/201(1A) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FO R THE SAID CONSECUTIVE YEARS DATED 27/3/2012 AND 20/3/2013 RESPECTIVELY. ITO V. CANTABILL RETAIL INDIA LTD . ITA NOS. 818 & 819/DEL/2015 (ASSST. YRS. 2010-11 & 2011-12) 2 2. THE SOLE ISSUE ARISING IN THESE APPEALS IS THE E XIGIBILITY TO TAX DEDUCTION AT SOURCE (TDS) ON THE SUMS, CLAIMED TO BE IN THE NATU RE OF REBATE AND DISCOUNT, ALLOWED BY THE ASSESSEE TO ITS DEALERS FOR THE RELE VANT YEARS. AT THE OUTSET, IT WAS BROUGHT TO OUR NOTICE THAT THE TRIBUNAL HAD, ON THI S ISSUE ARISING IN THE ASSESSEES CASE FOR AY 2009-2010, BEFORE GOING INTO THE MERITS OF THE ISSUE AT HAND, DEEMED IT TO APPROPRIATE TO ASCERTAIN IF THE ASSESSEES DEALE RS, I.E., THE RECIPIENTS OF THE IMPUGNED SUMS, HAD INDEED PAID TAX ON THE RECEIPTS FROM THE ASSESSEE-COMPANY. WHERE SO, THE ASSEESEE, IN TERMS OF THE AMENDED LAW , WHICH HAS BEEN UNIFORMLY REGARDED AS CLARIFICATORY AND, THUS, RETROSPECTIVE, THE ASSESSEE COULD NOT BE TREATED AS IN DEFAULT, SO AS TO BE LIABLE FOR THE TAX LIABL E TO BE DEDUCTED AT SOURCE AND, CONSEQUENTIALLY, FOR THE INTEREST THEREON. THE MATT ER WAS ACCORDINGLY RESTORED TO THE FILE OF THE ASSESSING OFFICER (AO) TO VERIFY TH E ASSESSEES CLAIM OF THE TAX ON THE IMPUGNED SUMS, FORMING PART OF THEIR INCOME, HA VING BEEN PAID BY ITS DEALERS. REFERENCE IN THIS REGARD WAS MADE DURING HEARING TO PARA 13 OF THE SAID ORDER (IN ITA NO. 821/DEL-2012 AND CO NO. 88/DEL/2013 DATED 2 0.09.2016/COPY ON RECORD). A SIMILAR DIRECTION WAS ACCORDINGLY PRAYED FOR. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE, IN VIEW OF THE FOREGOING, HAVE NO HESITATION IN HOLDING THA T THE DIRECTION AFORE-REFERRED BY THE TRIBUNAL FOR AY 2009-2010 SHALL EQUALLY APPLY F OR THE CURRENT YEARS AS WELL. THE ASSESSEE SHALL THEREFORE SHALL NOT BE DEEMED TO BE IN DEFAULT WHERE (AND TO THE ITO V. CANTABILL RETAIL INDIA LTD . ITA NOS. 818 & 819/DEL/2015 (ASSST. YRS. 2010-11 & 2011-12) 3 EXTENT) THE DEALERS HAVE DISCHARGED THE TAX LIABILI TY ON THE SUMS ALLOWED/RECEIVED FROM THE ASSESSEE. THE BURDEN FOR PROVING THE SAME TO THE SATISFACTION OF THE AO, FOR WHICH ALSO THE LAW IN FACT PROVIDES FOR REFER FIRST PROVISO TO S.201(1)) SHALL BE ON THE ASSESSEE. NEEDLESS TO ADD, IF THE DEALERS HA VE NOT PAID TAX ON THE INCOME ARISING FROM THE ASSESSEE TO ANY EXTENT, THE MATTER , FOR A DECISION ON MERITS, SHALL REVERT BACK TO THE TRIBUNAL, WHICH HAS NOT EXPRESSE D ANY OPINION THEREON FOR ANY OF THE YEARS UNDER REFERENCE. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE REVENUES APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON FEBRUARY 22, 2018. SD/- SD/- [H.S. SIDHU] [SANJAY ARORA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE 22/02/2018 NEHA COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES