ITO, Jaipur V. VODAFONE DIGILINK LIMITED, Jaipur

MA 20/JPR/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3453 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 26-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Assessee Lawyers: MRS MANASWANI BAJPAYEE
• Keywords: Application of stay
• Section: 201(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM M.A. NO. 20 & 21/JP/2015 (ARISING OUT OF S.A. NO. 01 & 02/JP/2015) FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2012-13 & 2013-14 A.C.I.T. (TDS), JAIPUR. CUKE VS. M/S VODAFONE DIGILINK LIMITED, JAIPUR. TAN NO.: JPRA 02455 F VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI O.P. BHATEJA (ADDL. CIT). FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI DEEPAK CHOPRA & MRS. MANASWANI BAJPAYEE (ADV) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 21/09/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 21/09/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE REVENUE HAS FILED THE PRESENT MISC. APPLICATION S ON 25/3/2015 AGAINST THE ORDER OF THE ITAT, JAIPUR BENC H, JAIPUR DATED 13/02/2015 PASSED IN S.A. NO. 01 & 02/JP/2015. M.A. NO. 20 & 21/JP/2015 ACIT (TDS) VS. VODAFONE DIGILINK LTD. 2 2. THE REVENUE CLAIMED THAT THE LD ITO (TDS) HAS CRE ATED TOTAL DEMAND FOR F.Y. 2012-13 AND 2013-14 OF RS. 5,68,95 ,553/- ON ACCOUNT OF NON-DEDUCTION OF TDS ON ROAMING CHARGES AND PREPA ID COMMISSION PAID TO DISTRIBUTORS BY ORDER U/S 201(1) AND 201(1A ). THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE LD CIT(A). THE HON BLE ITAT, JAIPUR BENCH, JAIPUR HAS ALLOWED THE STAY PETITIONS OF THE ASSESSEE BY HOLDING THAT THE APPELLANT HAD PAID SUBSTANTIAL AMOUNT AGAI NST THE TOTAL DEMAND CREATED BY THE ITO TDS-2, JAIPUR ON THE SAME I SSUE. THE HONBLE ITAT HAS CONTENDED THAT THE HON'BLE SUPREME COURT HAS GRANTED INTERIM STAY ON RECOVERY AGAINST TAX ON ACC OUNT OF ROAMING CHARGES VIDE ORDER DATED 28/08/2011. THEREFORE, THE HONBLE ITAT, JAIPUR BENCH, JAIPUR HAS ALLOWED THE STAY AGAINST TH E ENTIRE REMAINING UNPAID DEMAND TILL THE DISPOSAL OF THE APPEAL BEFOR E THE ITAT OR 180 DAYS FROM THE DATE OF ORDER WHICHEVER IS EARLIER. TH E LD ACIT, TDS, JAIPUR HAS FURTHER SUBMITTED AS UNDER:- A) HONBLE ITAT HAS BASED THIS DECISION ON THE FACT THAT HON'BLE SUPREME COURT HAS GRANTED INTERIM STAY ON RECOVERY AGAINST TAX ON ACCOUNT OF ROAMING CHARGES VIDE ORDER DATED 28/01/2011 AND HAS STAYED THE ENTIRE DE MAND IN THE PRESENT CASE BASED ON THIS JUDGMENT. THIS IS M.A. NO. 20 & 21/JP/2015 ACIT (TDS) VS. VODAFONE DIGILINK LTD. 3 ERRONEOUS CONSIDERING THE FACT THAT IN A.Y. 2012-13 THIS IS NOT AN ISSUE AT ALL WHILE FOR BOTH THE YEAR ALMOST 85% OF THE DEMAND IS ON ACCOUNT OF NON-DEDUCTION OF TDS ON PREP AID COMMISSION PAID TO DISTRIBUTORS. B) WITH REGARD TO THE DEMAND ON THE ISSUE OF NON DE DUCTION OF TDS ON COMMISSION PAID TO DISTRIBUTORS, IT IS IMPORT ANT TO MENTION THAT THE LD ITAT, JAIPUR HAS ITSELF DISMISSE D THE APPEAL OF THE ASSESSEE ON THE SAME ISSUE IN EARLIER YEARS ON MERIT VIDE ORDER NO. ITA NO. 250 TO 252/JP/2012 FOR THE A.Y. 2007-08 TO 2009-10 AND DEPARTMENTAL APPEAL ALL OWED VIDE NO. 239/JP/2012 FOR THE A.Y. 2009-10 DATED 29/08/2013. SINCE THE HONBLE ITAT JAIPUR HAS TAKEN A CONSIDERED VIEW IN EARLIER YEARS, THAT ASSESSEE HAS COMMITTED DEFAULT U/S 201(1) FOR DEDUCTION OF TDS IN PREPAID COMMISSION PAID TO DISTRIBUTORS. HENCE GRAN TING STAY OF DEMAND ON THIS VERY ISSUE IS NOT IN CONSONA NCE WITH THEIR OWN DECISION. APPROVAL FOR FILING OF MISCELLAN EOUS APPLICATION IS ACCORDED BY WORTHY CIT (TDS), JAIPUR V IDE LETTER NO. 2978 DATED 23/03/2015. FURTHER HE PRAYED THAT THE HONBLE ITAT, JAIPUR BENC H, JAIPUR RECONSIDER THE STAY ON DEMAND GRANTED FOR SIX MONTH S AND REVOKE THE SAME. ALTERNATIVELY, THE ASSESSEE MAY BE ASKED TO P AY THE ENTIRE DEMAND CORRESPONDING TO THE ISSUE ON NON DEDUCTION OF TDS ON PREPAID COMMISSION PAID TO DISTRIBUTORS ON WHICH LD ITAT HAS ALREADY DECIDED M.A. NO. 20 & 21/JP/2015 ACIT (TDS) VS. VODAFONE DIGILINK LTD. 4 THE ISSUE AGAINST THE ASSESSEE AND DESPITE THIS ORD ER NEITHER HAVING BEEN REVISED NOR STAYED, THE DECISION IS NOT BEING FOLLOWED BY THE ASSESSEE IN SUBSEQUENT YEARS. 3. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS ARG UED THAT BOTH THE ISSUES ARE COVERED BY THE HONBLE BENCH DECISION VI DE ORDER DATED 12/06/2015 IN CASE OF M/S BHARTI HEXACOM LIMITED VS . ITO, TDS-II, JAIPUR IN ITA NO. 656/JP/2010 AND HELD THAT TDS IS NOT LIABLE TO BE DEDUCTED ON COMMISSION PAYMENT AND ROAMING CHARGES, THEREFORE, M.A. FILED BY THE REVENUE MAY BE DISMISSED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE CO ORDINATE BENCH VIDE ORDER DATED 12/6/2015 IN THE CASE OF M/S BHART I HEXACOM LIMITED VS. ITO, TDS-II, JAIPUR IN ITA NO. 656/JP/2010 HAS H ELD THAT NO TDS IS LIABLE TO BE DEDUCTED ON COMMISSION PAYMENT AND ROA MING CHARGES PAID BY THE ASSESSEE. THE ASSESSEES CASE HAS BEEN A LREADY FIXED AND ADJOURNED FOR SHORT DATE ON THE REQUEST OF THE REVE NUE I.E. FOR 30/09/2015. THEREFORE, BOTH THE ISSUES WILL BE ADDRES SED IN THE APPEAL ITSELF. THE REVENUES M.AS. ARE NOT MAINTAINABLE ON GIVEN FACTS AND M.A. NO. 20 & 21/JP/2015 ACIT (TDS) VS. VODAFONE DIGILINK LTD. 5 CIRCUMSTANCES. THEREFORE, WE DISMISS THE M.A. APPLICA TIONS FILED BY THE REVENUE. 5. IN THE RESULT, BOTH THE MA PETITIONS ARE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/09/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 21 ST SEPTEMBER, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, TDS, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- VODAFONE DIGILINK LTD., JAIPUR 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 20 & 21/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR