IDEA CELLULAR LTD, Jaipur V. ITO, Jaipur

MA 135/JPR/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 5121 (ITAT-JAIPUR)
• Duration Of Justice: 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 05-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Assessee Lawyers: R G DOSHI
• Keywords: Rectification of order; TDS
• Section: 201; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOE FLAG ;KNO] YS[KK ,OA JH YFYR DQEKJ] U; KF;D LNL; DS LE{K BEFORE: SHRI VIKRAM SINGH YADAV, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ MA NO.135/JP/16 (ARISING OUT OF ITA NO. 293/JP/14 ) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 M/S IDEA CELLULAR LTD.(FORMERLY KNOWN AS IDEAL TELECOMMUNICATION LTD.) 1 & 2, JAI JAWAN COLONY, TONK ROAD, JAIPUR CUKE VS. THE INCOME TAX OFFICER, WARD TDS-2, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACB 2100 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI R.G. DOSHI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA (J CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16.09.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/09/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION ARISES OUT OF THE OR DER PASSED BY THE COORDINATE BENCH DATED APRIL 15, 2016. THE LD AR HAS SUBMITTED THAT THE APPLICANT HAD FILE D AN APPEAL ON APRIL 16, 2014 BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUN AL, JAIPUR BEING APPEAL ITA NO. 293/JP/2014 AGAINST THE RECTIFICATION ORDE R OF THE LD. CIT(A)-III, JAIPUR DATED FEBRUARY 18,2014 U/S 154 R.W.S. 250(6) OF THE ACT ARISING OUT OF APPLICATION FOR RECTIFICATION BY THE APPLICANT AGAI NST THE ORDER PASSED BY THE MA NO. 135/JP/16 M/S IDEA CELLULAR LIMITED, JAIPUR VS. ITO(TDS)WARD- 2, JAIPUR 2 CIT(A) DATED MAY 15, 2013 FOR ASSESSMENT YEAR 2011- 12. THE APPLICANT HAD ALSO FILED AN APPEAL BEFORE THE HONBLE ITAT ON AUG UST 1, 2013 BEING ITA NO. 678/JP/2013 AGAINST THE ORIGINAL APPELLATE ORDER OF CIT(A) DATED MAY 1, 2013. BOTH THE APPEALS WERE HEARD TOGETHER ON FEBRUARY 18 , 2016. THE APPELLANT WAS IN RECEIPT OF THE APPELLATE ORDER DATED APRIL 15, 2016 PASSED BY THE HONBLE TRIBUNAL ON JUNE 13,2016. THE HONBLE ITAT HAS REPRODUCED GROUNDS RAISED BY THE APPLICANT AGAINST THE ORIGINAL CIT(A) ORDER AT PARA 2.1 AND GROUNDS RAISED BY THE APPLICANT AGAINST RECTIFIED O RDER OF CIT(A) AT PARA 3.1. AT PARA 4.1 OF ITS ORDER, THE HONBLE ITAT NOTED THAT IN SO FAR AS GROUND NO.1 OF APPEAL NO. 678/JP/13 IS CONCERNED (WHICH WAS IN RES PECT OF NON ADJUDICATION OF GROUND RELATED TO TREATING APPLICANT AS AN ASSES SEE IN DEFAULT FOR NON- DEDUCTION OF TDS U/S 194H ON DISCOUNT ALLOWED TO P REPAID DISTRIBUTORS), THE SAME BECOMES INFRUCTUOUS SINCE SUBSEQUENTLY CIT(A) RECTIFIED HIS ORDER U/S 154 READ WITH SECTION 250(6) OF THE ACT. ON THE PERUSAL OF THE ORDER PASSED BY THE HONBLE T RIBUNAL , THERE IS CERTAIN INADVERTENT ERROR/MISTAKE NOTICED WHICH NEEDS TO BE APPROPRIATELY MODIFIED/RECTIFIED AS UNDER: (I) PARA 6.1 PAGE 8 OF THE ORDER READS AS UNDER: SINCE WE HAVE ALLOWED THE APPEAL OF THE ASSESSEE ON MERITS, THE ITA NO.293/JP/2014 RELATING TO SECTION 154 OF THE ACT B ECOMES INFRUCTUOUS. THE HONBLE ITAT HAS HELD THAT SINCE APPEAL OF ASS ESSEE ON MERITS HAS BEEN ALLOWED, APPEAL NO. 293/JP/2014 BECOMES INFRUCTUOUS . THE APPLICANT SUBMITS THAT IN PRINCIPLE AO HAS PASSED ORDER U/S 201 TREAT ING APPLICANT AS AN ASSESSEE IN- DEFAULT U/S 201/201(1A) FOR TWO ISSUES. MA NO. 135/JP/16 M/S IDEA CELLULAR LIMITED, JAIPUR VS. ITO(TDS)WARD- 2, JAIPUR 3 (A) NON-DEDUCTION OF TDS ON DISCOUNT ALLOWED TO PR EPAID DISTRIBUTORS U/S 194H (B) NON-DEDUCTION OF TDS ON DOMESTIC ROAMING CHARGE S U/S 194J AND 194C. IN SO FAR ISSUE AT ITEM (A) IS CONCERNED, THE CIT(A ) ORIGINALLY DID NOT ADJUDICATE THE GROUND OF APPEAL AND HENCE A 154 WAS FILED , PU RSUANT TO WHICH THE CIT(A) IN RECTIFICATION ORDER DECIDED ISSUE AGAINST THE AS SESSEE. IN SO FAR AS ISSUE AT ITEM (B) IS CONCERNED SINCE CIT(A)DECIDED AGAINST T HE ASSESSEE, THE APPELLANT FILED APPEAL TO ITAT. AT PARA NO. 5.1.TO 5.6 OF IT S ORDER, THE HONBLE ITAT DISCUSSED GROUND RELATED TO ROAMING CHARGES AND FI NALLY DECIDED IN FAVOUR OF APPELLANT. THUS INADVERTENTLY, THE HONBLE ITAT AT PARA 6.1 HELD THAT SINCE ISSUE IN MERITS IS ALLOWED APPEAL NO. 293/JP/14 BECAME IN FRUCTUOUS DESPITE THE DECISION AT PARA 5.6 BEING ON TDS ON ROAMING CHARG ES U/S 194J/194C WHICH WAS UNCONNECTED WITH APPEAL NO. 293/JP/2014 RELATIN G TO TDS ON DISCOUNT U/S 194H. THE APPLICANT SUBMITS THAT THE ISSUE RELATED TO NON-DEDUCTION OF TDS U/S 194H WHICH WAS DECIDED AGAINST BY THE CIT(A) BY PAS SING A RECTIFICATION ORDER DATED FEBRUARY 18, 2014 AND AGAINST WHICH APPLICANT HAD FILED APPEAL NO. 293/JP/2014 OUGHT TO HAVE BEEN DECIDED AND WHICH RE MAINED NON-ADJUDICATED AMOUNTS TO MISTAKE APPARENT ON RECORD. THE APPLICANT THUS PRAYS THAT THE HONBLE ITAT KIND LY RECALL APPEAL NO. 293/JP/2014 TO ADJUDICATE THE ISSUE RELATED TO NON- DEDUCTION OF TDS U/S 194 H OF THE ACT ON DISCOUNT ALLOWED TO THE PREPAID DISTR IBUTORS OR PASS SUCH SUPPLEMENT ORDER AS YOUR HONOURS DEEM FIT UNDER THE FOREGOING FACTS AND CIRCUMSTANCES. MA NO. 135/JP/16 M/S IDEA CELLULAR LIMITED, JAIPUR VS. ITO(TDS)WARD- 2, JAIPUR 4 2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE ORDER PASSED BY THE COORDINATE BENCH DATED 15.04.2016. IT IS NOTED THAT THE GROUND TAKEN BY THE APPELLANT IN ITA NO. 293/JP/14 RELATES TO APPLI CANT BEING TREATED AS ASSESSEE-IN DEFAULT U/S 201/201(1A) ON ACCOUNT OF NON-DEDUCTION OF TDS ON DISCOUNT ALLOWED TO PREPAID DISTRIBUTORS U/S 194H O F THE ACT. ON PERUSAL OF THE ORDER PASSED BY THE COORDINATE BENCH DATED 15.0 4.2016, IT IS NOTED THAT THE GROUNDS TAKEN BY THE APPELLANT IN ITA NO. 293/J P/14 RELATING TO DISCOUNT ALLOWED TO PREPAID DISTRIBUTORS U/S 194H OF THE ACT HAVE NOT BEEN ADJUDICATED UPON. IN LIGHT OF THAT, WE HEREBY RECALL THE CONSOL IDATED ORDER OF THE COORDINATE BENCH DATED 15.04.2016 ON THE LIMITED GR OUND AND TO THE EXTENT OF NON-ADJUDICATION OF GROUNDS OF APPEAL TAKEN IN ITA NO. 293/JP/2014. OTHER THAN THAT, THE EARLIER ORDER OF COORDINATE BENCH CO NTINUES TO REMAIN IN FORCE AND THERE IS NO CHANGE IN THAT. THE REGISTRY IS DIRECTED TO FIX THE MATTER RELATING TO ITA NO. 293/JP/2014 ON 30.09.2016. THE PARTY SHALL BE AT LIBERTY TO FILE NECESSARY PAPER BOOK BEFORE THE DATE OF HEARING. WITH THE ABOVE, THE MA APPLICATION FILED BY THE APP LICANT IS DISPOSED OFF. ORDER PRONOUNCED IN THE OPEN COURT ON 19/09 /2016. SD/- SD/- ( LALIET KUMAR ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 19/09/2016 MA NO. 135/JP/16 M/S IDEA CELLULAR LIMITED, JAIPUR VS. ITO(TDS)WARD- 2, JAIPUR 5 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S IDEA CELLULAR LIMITED, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, TDS WARD-2, JAIPUR 3. VK;DJ VK;QDR@ CIT(TDS) , JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-III, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO.135 /JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR