DBS BANK LTD, MUMBAI V. ADIT (IT) 1(2), MUMBAI

ITA 9066/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3363 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-05-2013
• Assessment Year: 1995-1996
• Appeal Filed On: 27-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MRS BAHTOZE KAMDIN
• Section: 244A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI P.M. JAGTAP, AM AND DR. S.T.M. PAVALAN , JM ./I.T.A. NO. 9066/MUM/2010 ( / ASSESSMENT YEAR :1995-96) DBS BANK LTD. 3 RD FLOOR, FORT HOUSE, 221, DR. D.N. ROAD, FORT MUMBAI- 400 051 / VS. THE ASSISTANT DIRECTOR INCOME TAX, (INTERNATIONAL TAXATION) 1(2)SCINDIA HOUSE, N.M. MART MUMBAI-400 020 ./PAN : AAACT4652J ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MRS. BAHTOZE KAMDIN / RESPONDENT BY : SHRI RAJARSHI DWIVEDY /DATE OF HEARING : 08.05.2013 / DATE OF PRONOUNCEMENT : 17.05 .2013 / O R D E R PER P.M. JAGTAP, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE ASSESSING OFFICER I.E. ASSISTANT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) 1(2) MUMBAI DATED 27.10.2010 PASSED UNDER SECTION 1 43(3) READ WITH SECTION 144C(13) OF THE INCOME TAX ACT, 1961. ITA NO.9066 OF 2010 DBS BANK LTD. 2 2. THE MAIN ISSUE INVOLVED IN THIS APPEAL AS RAISED IN GROUND NO.1 RELATES TO THE INTEREST CHARGED BY THE AO UNDER SECTION 234B OF TH E ACT. 3. AT THE TIME OF HEARING BEFORE US, THE LD. REPRES ENTATIVES OF BOTH SIDES HAVE AGREED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOU R OF THE ASSESSEE BY THE DECISION OF HONBEL BOMBAY HIGH COURT IN THE CASE OF INCOME TAX (INTERNATIONAL TAXATION) VS. NGC NETWORK ASIA LLC REPORTED IN 222 CTR 86 (BO MBAY) WHEREIN IT WAS HELD THAT WHEN A DUTY IS CAST ON THE PAYERS TO DEDU CT AND PAY THE TAX AT SOURCE, ON PAYERS FAILURE TO DO SO, NO INTEREST UNDER SECTION 234B CAN BE IMPOSED ON THE PAYEE ASSESSEE. IN THE PRESENT CASE, THE ASSESSEE B EING A NON RESIDENT COMPANY, TAX WAS LIABLE TO BE DEDUCTED BY THE PAYERS FROM TH E ENTIRE INCOME PAID TO THE ASSESSEE AND IF THERE WAS A FAILURE ON THE PART OF THE PAYERS TO DO SO, NO INTEREST UNDER SECTION 234 B COULD BE IMPOSED ON THE ASSESSE E AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWORK ASIA(SUPRA). RESPECTIVELY FOLLOWING THE SAID DECISION OF HONBLE JURISDICTIONAL HIGH COURT, WE DELETE THE INTEREST CHARGED BY THE AO UNDER SECTION 234B AND ALLOW GROUND NO.1 OF THE ASSESSEES APPEAL. 4. AS REGARDS THE ISSUE RAISED IN GROUND NO.2 RELAT ING TO ASSESSEES CLAIM FOR GRANT OF INTEREST UNDER SECTION 244A OF THE ACT, TH E LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE SAME IS CONSEQUENTIAL TO THE ISSUE INVOLVED IN GROUND NO.1, INASMUCH AS IF INTEREST CHARGED BY THE AO UNDER SEC TION 234B IS CANCELLED, THE ASSESSEE WILL BE ENTITLED FOR REFUND ON WHICH INTER EST UNDER SECTION 244A IS PAYABLE. WE ACCORDINGLY DIRECT THE AO TO ALLOW THE CONSEQUENTIAL RELIEF TO THE ASSESSEE ON THIS ISSUE IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ITA NO.9066 OF 2010 DBS BANK LTD. 3 ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 17 TH OF MAY 2013 ! ' # $ % 17 TH MAY.2013 & ' SD/- SD/- ( DR. S.T.M. PAVALAN) ( P.M.JAGTAP) ! ( / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' ) MUMBAI; $ DATED 17 TH / MAY /2013 . ( . . / ASHISH PS !'#$ %$' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)-1, MUMBAI 4. * / CIT MUMBAI 5. +, & ((-. , -. , ' ) / DR, ITAT, MUMBAI H 6. & /0 1 / GUARD FILE. & / BY ORDER, + ( //TRUE COPY// ' / &( ) (DY./ASSTT. REGISTRAR) , ' ) / ITAT, MUMBAI