DEPUTY COMMISSIONER OF INCOME TAX (TDS) 1 (2), MUMBAI V. HUNGAMA DIGITAL MEDIA ENTERTAINMENT P.LTD, MUMBAI

MA 247/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6734 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ABI RAMA KARTIKAYAN
• Assessee Lawyers: S C TIWARI
• Keywords: Rectification of order
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN , J M M .A. NO S . 247 & 248/MUM/2018 (ARISING OUT OF ITA NO S . 2495 & 2494/MUM/2015 ) ( ASSESSMENT YEAR: 2012 - 13 & 2011 - 12 ) DCIT(TDS) - 1(2) ROOM NO. 8 14, 8 TH FLOOR, SMT. K. G. MITTAL AYURVEDIC HOSPITAL BLDG., MUMBAI - 400 002 VS. M/S. HUNGAMA DIGITAL MEDIA ENTERTAINMENT PVT. LTD. SF - B - 07, ART GUILD HOUSE, PHOENIX MARKET CITY, LBS MARG, KURLA (WEST), MUMBAI - 400 070 PAN/GIR NO. AAACV 7289 H ( AP PELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI S. ABI RAMA KARTIKAYAN RESPONDENT BY : SHRI S. C. TIWARI DATE OF HEARING : 28.12.2018 DATE OF PRONOUNCEMENT : 21.01 .2019 ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: BY W AY OF THE S E MISCELLANEOUS APPLICATION S THE REVENUE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE COMMON ORDER OF THIS TRIBUNAL IN ITA NO S . 2494 & 2495 / MUM/201 5 FOR ASSESSMENT YEAR S 20 11 - 12 & 201 2 - 1 3 VIDE ORDER DATED 0 1 . 11 .201 7 . 2. IN THE MISCELLA NEOUS APPLICATION S , THE ASSESSEE HAS MADE THE FOLLOWING SUBMISSIONS: 2. IN THIS CASE AO HAS PASSED THE ORDER U/S 201(1)/201(1A) OF THE I T ACT ON 26.03.2013 AFTER DULY GIVING OPPORTUNITIES TO THE ASSESSEE AND RAISED THE DEMAND WHICH WAS PARTLY CONFIRMED BY THE CIT(A), MUMBAI. BEFORE THE HON'BLE ITAT, THE AR OF THE ASSESSEE PLACED RELIANCE ON VARIOUS CASE LAWS INCLUDING HINDUSTAN COCA - COLA BEVERAGE PVT. LTD. [293 ITR 226(SC)J. 3. IN THE PRESENT CASE, HON'BLE ITAT SEEM TO HAS NOT CONSIDERED THE ORIGINAL ISSU E OF NON DEDUCTION/SHORT DEDUCTION SO THAT THE DEMAND STATUS OF PAYEE CAN BE 2 M.A. NOS. 247 & 248/MUM/2018 ASCERTAINED. EVEN IN THE ABOVE CITED CASE THE HON'BLE SUPREME COURT HAS ALSO CONFIRMED THE LIABILITY OF THE ASSESSEE IN THE LIGHT OF CBDT CIRCULAR AS UNDER BE THAT AS IT MAY, THE CIRCULAR NO. 2751201195 - /T(B), DATED 29 - 1 - 1997 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, IN OUR CONSIDERED OPINION, SHOULD PUT AN END TO THE CONTROVERSY. THE CIRCULAR DECLARES 'NO DEMAND VISUALIZED UNDER SECTION 201(1) OF THE INCOME - TAX ACT SHOULD HE ENFORCED AFTER THE TAX DEDUCTOR HAS SATISFIED THE OFFICER - IN - CHARGE OF TDS, THAT TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE - ASSESSEE HOWEVER, THIS WILL NOT ALTER THE LIABILITY TO CHARGE INTEREST UNDER SECTION 201(1A) OF THE ACT TILL THE DATE OF PAYMENT OF TA XES BY THE DEDUCTEE - ASSESSEE OR THE LIABILITY FOR PENALTY UNDER SECTION 271 C OF THE INCOME - TAX ACT.' 4. THE ASSESEE HAS NOT TAKEN PLEA OF TAX PAID BY THE DEDUCTEE THOUGH THE ASSESSEE SUBMITTED ITS REPLY BEFORE AO. MOREOVER DECISION OF HONBLE SUPREME CO U RT IN HINDUSTAN COCA COLA HAS CAME IN Y EAR 2007 IN THIS REGARD AND CIRCULAR NUMBER 275/201/95 - IT(B), DATED 29.01.1997 WAS IN FORCE. IN ANY CASE LD. ITAT MAY HAVE DIRECTED TO VERIFY PAYMENT OF TAXES BY DEDUCTEE IN VIEW THE ABOVE CASE LAW AND CIRCULAR. HOW EVER, ISSUE OF LEVY OF INTEREST U/S 201(1A) SHOULD HAVE BEEN DECIDED, WHICH IS BASED ON THE RATE APPLICABLE TO VARIOUS TRANSACTIONS MENTIONED IN THE ORDER IN VIEW OF THE ABOVE, HON'BLE ITAT HAS NOT DECIDED THE QUANTUM ISSUE OF COMPUTATION OF INTEREST WHICH IS BASED ON RATE OF DEDUCTION/SHORT DEDUCTION ON VARIOUS TRANSACTIONS. THUS UD. ITAT ERRED IN NOT DECIDING THE ISSUE OF SHORT DEDUCTION OR NON DEDUCTION, WHICH IS REQUIRED FOR COMPUTING INTEREST U/S 201(1A) AND THUS FURTHER ERRED IN STATING IT IS CONSEQUE NTIAL TO COMPUTATION U/S 201 (1) ONLY. 5. IN VIEW OF THE ABOVE FACTS, IT IS HUMBLY PRAYED THAT THE DECISION BY THE HON'BLE ITAT 'L' BENCH, MUMBAI NEEDS TO BE RECALLED AND THE ISSUE IS TO BE DECIDED ON MERITS OF THE CASE. ACCORDINGLY, THIS MISCELLANEOUS APP LICATION IS HEREBY MOVED U/S 254(2) OF THE INCOME TAX ACT, 1961 WITH A PRAYER TO RECALL THE ORDER DATED 1.11.2017 FOR AY 2012 - 13 IN ITA NO. 2495/MUM/2015 AND ADJUDICATE THE SAME ON MERITS OF THE CASE. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE REC ORDS. WE FIND THAT IN THE IT APPEAL, THE TRIBUNAL HAS CONSIDERED AN ADDITIONAL GROUND RAISED BY THE ASSESSEE. AFTER ADMITTING THE SAME, THE ISSUE WAS REMITTED TO THE A.O. AS ITS ADJUDICATION NEEDED REFERENCE TO FACTUAL MATRIX. FURTHERMORE, THE TRIBUNAL CO NCLUDED THAT SINCE THE ISSUE IS BEING REMITTED ON JURISDICTIONAL ASPECT, THE OTHERS GROUNDS ON MERITS ARE NOT BEING DEALT WITH BY US AND 3 M.A. NOS. 247 & 248/MUM/2018 THEIR SURVIVAL WILL BE DEPENDENT ON THE OUTCOME OF THE ISSUE REMITTED HEREINABOVE. 4. NOW THE REVENUE HAS FILED MISCEL LANEOUS APPLICATION THAT THE TRIBUNAL HAS NOT CONSIDERED TH E ORIGINAL ISSUE. WE FIND THAT THE REVENUE AUTHORITIES HAVE NOT READ THE ENTIRE ORDER OF TH E TRIBUNAL BEFORE FILING THE ABOVE MISCELLANEOUS APPLICATION. IN OUR CONSIDERED OPINION, THERE IS NO MIST AKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL LIABLE FOR RECTIFICATION. 5 . IN THE RESULT, THE SE MISCELLANEOUS APPLICATION S BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.01.2019 SD/ - SD/ - ( SANDEEP GOSAIN ) (S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 21.01.2019 ROSHANI , SR. PS COPY OF THE ORDER FORWA RDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI