ACIT, Delhi V. M/s. Vodafone Essar Mobile Services Ltd., New Delhi

ITA 982/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3575 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: misc
• Appeal Filed On: 17-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANCHAL KHANDELWAL
• Assessee Lawyers: SPARSH BHARGAVA; ISHITA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A, NEW DELHI BEFORE SHRI RAJ PAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NOS.- 980, 981 & 982/DEL/2015 ( ASSESSMENT YEARS: 2002-03, 2003-04 & 2004-05) ASSTT. CIT, CIRCLE- 78(1), NEW DELHI. VS. M/S VODAFON ESSAR MOBILE SERVICES LTD., C-45, OKHALA INDUSTRIAL AREA, PHASE II, NEW DELHI-110020. PAN NO: AAACS4457Q APPELLANT RESPONDENT REVENUE BY : SMT. ANCHAL KHANDELWAL, SR. DR ASSESSEE BY : SH. SPARSH BHARGAVA, ADV. & MS. ISHITA, ADV. DATE OF HEARING : 21.08.2018. DATE OF PRONOUNCEMENT : 21/08/2018. ORDER PER: N.K. BILLAIYA, AM THESE ARE THREE SEPARATE APPEALS BY THE REVENUE PREF ERRED AGAINST THREE SEPARATE ORDERS OF THE LD. CIT(A)-IX, NEW DELHI, PER TAINING TO DIFFERENT ASSESSMENT YEARS I.E. 2002-03, 2003-04 & 2004-05. ALL THESE APPEALS ARE HEARD 2 ITA NOS.-980, 981 & 982/DEL/2015. VODAFON ESSAR MOBILE SERVICES LTD., NEW DELHI. TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE GRIEVANCES OF THE REVENUE ARE AS UNDER:- IN ITA NO.-980/DEL/2015 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE DEMAND RAISED U/S 194H, WHEREAS THE SA ME ISSUE HAS BEEN DECIDED IN DEPARTMENTS FAVOUR BY HIM IN APPEAL NO. 141/14-15 VIDE ORDER DATED 19.12.2014 FOR F.Y. 2003-04 IN ASSESSEES OWN CASE. 2. THE APPELLANT CRAVES LEAVE, TO ADD, ALTER OR AME ND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. IN ITA NO. 981/DEL/2015 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D. CIT(A) HAS ERRED IN DIRECTING THE AO TO CALCULATE THE INTEREST U/S 201( 1A) FROM THE DUE DATE OF PAYMENT OF WITHHOLDING TAX TO THE DATE OF PAYMENT O F TAXES BY THE DEDUCTEES, WHEREAS AS PER THE PROVISO TO SECTION 20 1(1A) OF THE INCOME TAX ACT, INTEREST IS CHARGEABLE FROM THE DATE ON WH ICH TAX WAS DEDUCTIBLE AND NOT FROM DUE DATE OF PAYMENT OF TDS, AS HELD BY THE LD. CIT(A). 2. THE APPELLANT CARVES LEAVE, TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. IN ITA NO. 982/DEL/2015 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO CALCULATE THE INTEREST U/S 201( 1A) FROM THE DUE DATE OF PAYMENT OF WITHHOLDING TAX TO THE DATE OF PAYMENT O F TAXES BY THE DEDUCTEES, WHEREAS AS PER THE PROVISO TO SECTION 20 1(1A) OF THE INCOME TAX ACT, INTEREST IS CHARGEABLE FROM THE DATE ON WHICH TAX WAS DEDUCTIBLE AND NOT FROM DUE DATE OF PAYMENT OF TDS, AS HELD BY THE LD. CIT(A). 3 ITA NOS.-980, 981 & 982/DEL/2015. VODAFON ESSAR MOBILE SERVICES LTD., NEW DELHI. 2. THE APPELLANT CARVES LEAVE, TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 3. BY RELEVANT FINDINGS OF THE LD. CIT(A), WHICH TRIG GERED THESE APPEALS READ AS UNDER:- 4.2 IT HAS BEEN INFORMED THAT, THE ISSUE IS PENDI NG BEFORE THE HONBLE HIGH COURT OF DELHI UNDER THE WRIT PETITION FILED BY THE APPELLANT AND ALSO AGREED BY THE AO IN THE TDS ORDER. IN VIEW OF THIS , THE ISSUE IS NOT ADJUDICATED UPON AT THIS STAGE. ONCE THE ORDER OF THE HONBLE HIGH COURT OF DELHI IN RESPECT OF THE WRIT PETITION FILE D BY THE APPELLANT ON THIS ISSUE FOR THE SUBJECT YEAR IS PASSED, THE AO IS DIR ECTED TO APPLY THE SAME IN THE SUBJECT YEAR. 4 . THE HONBLE HIGH COURT OF DELHI IN 385 ITR 436 HA S OBSERVED AS UNDER:- 30. AS RIGHTLY POINTED OUT BY MR. SYALI WHILE THE SUPREME COURT HAD SENT THE MATTER BACK FOR FURTHER PROCEEDINGS FOR AY 2002-03, AS FAR AS THE ORDERS UNDER CHALLENGE IN THESE WRIT PETITIONS ARE CONCERN ED, THEY PERTAIN TO AYS 2003-2004, 2004-2005 AND 2005-2006 IN RESPECT OF WH ICH NO ORDERS HAVE BEEN PASSED BY THE SUPREME COURT. THESE NOTICES, T HEREFORE, SOUGHT TO INITIATE PROCEEDINGS FOR DECLARING VEMSL TO BE AN A SSESSEE IN DEFAULT EARLIER THAN FOUR YEARS PRIOR TO 31 ST MARCH, 2011. 31. THE COURT AGREES THAT THE NOTICES ISSUED TO VEM SL FOR THE AFOREMENTIONED AYS ARE NOT COVERED BY THE ORDER OF THE SUPREME COURT FOR AY 2002-2003. ACCORDINGLY, INSOFAR AS THE NOTI CES FOR AYS 2003-2004, 2004-2005 AND 2005-2006 ARE CONCERNED, THEY ARE HEL D TO BE UNSUSTAINABLE IN LAW ON THE INTERPRETATION OF SECTI ON 201(3) OF THE ACT BY THE COURT. 5. IN THE LIGHT OF THE AFORESAID STATED OBSERVATIONS BY THE HONBLE HIGH COURT, WE RESTORE THE IMPUGNED ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO DECIDE THE ISSUE 4 ITA NOS.-980, 981 & 982/DEL/2015. VODAFON ESSAR MOBILE SERVICES LTD., NEW DELHI. AS PER THE OBSERVATIONS OF THE HONBLE HIGH COURT V IS--VIS THE FINDINGS OF THE LD. CIT(A) MENTIONED AS ABOVE. 6. IN THE RESULT, APPEALS FILED BY THE REVENUE ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/8/2018 SD/- SD/- (RAJPAL YADAV) (N.K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21.08.2018 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NOS.-980, 981 & 982/DEL/2015. VODAFON ESSAR MOBILE SERVICES LTD., NEW DELHI. DATE OF DICTATION 21/8/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/8/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 21/8/2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 23/8/2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 6 ITA NOS.-980, 981 & 982/DEL/2015. VODAFON ESSAR MOBILE SERVICES LTD., NEW DELHI.