HELIX ENERGY SOLUTIONS GROUP OMC, V. DDIT 3(1),

MA 260/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1464 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 15-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI N. K. BILLAIYA , AM MISCELLANEOUS APPLICATION NO. 260/MUM/2013 ( ARISING FROM ITA NO. 7736/MUM/2011 A. Y - 2008-09 ) HELIX ENERGY SOLUTIONS GROUP OMC, C/O BABAJI SHIVRAM CLEARING & CARRIERS PVT. LTD., FLAT NO. 2, BEHIND EXCOM HOUSE, SAKIVIHAR ROAD, SAKINAKA, ANDHERI (E) MUMBAI VS DDIT 3(1) MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AABCH9122J ASSESSEE BY SHRI MAYUR KISNADWALA REVENUE BY MS. NEERAJA PRADHAN DATE OF HEARING 10 TH JANUARY 2014 DATE OF PRONOUNCEMENT 17 TH JANUARY 2014 ORDER PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER DATED 6.3.2013 OF THIS TRIBUNAL WHEREBY T HE APPEAL OF THE ASSESSEE WAS DISPOSED OFF. 2. THE LD. A.R OF THE ASSESSEE HAS SUBMITTED THAT T HERE IS A MISTAKE IN THE IMPUGNED ORDER WITH RESPECT TO THE FINDING OF I SSUE OF LEVY OF INTEREST U/S 234B OF THE INCOME TAX ACT. HE HAS FURTHER SUBM ITTED THAT THE TRIBUNAL HAS NOT CONSIDERED THE CHARGEABILITY OF IN TEREST U/S 234B IN THE CASE OF THE ASSESSEE WHEN THE ASSESSEE IS A NON-RES IDENT AND THE PAYMENT RECEIVED BY THE ASSESSEE WAS REQUIRED TO BE AFTER DEDUCTION OF TAX AT SOURCE BY THE PAYEE. HE HAS RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF DIT (INTERNATI ONAL TAXATION) VS NGC MA 260/M/2013 HELIX ENERGY SOLUTIONS GROUP OMC 2 NETWORK ASIA LLC 222 CTR (BOM) 86 AND SUBMITTED THA T THE HONBLE HIGH COURT HAS HELD THAT THE ASSESSEE IS NOT LIABLE TO P AY ADVANCE TAX SINCE THE TAX IS DEDUCTIBLE BY THE PAYER THOUGH NOT ACTUALLY DEDUCTED BY IT. THEREFORE, IN VIEW OF THE SAID DECISION THERE IS A MISTAKE CREPT IN THE IMPUGNED ORDER WHICH IS REQUIRED TO BE RECTIFIED. H E HAS ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF AC IT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 AND SUBMITTED THAT NON- CONSIDERATION OF DECISION OF HONBLE JURISDICTIONAL HIGH COURT CONSTITUTES A MISTAKE APPARENT FROM RECORD WHICH REQUIRES RECTIFI CATION. THE LD. D.R VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE IMPUGNED ORDER WE NOTE THAT THE TRIBUNAL HAS DISMIS SED THE GROUND OF THE ASSESSEE REGARDING LEVY OF INTEREST U/S 234B ON THE GROUND THAT THE SAME IS CONSEQUENTIAL IN NATURE HOWEVER, THE HONBLE JUR ISDICTIONAL HIGH COURT IN CASE OF DIT (INTERNATIONAL TAXATION) VS NGC NETW ORK ASIA LLC (SUPRA) HAS HELD IN PAR 8 AS UNDER: 8. WE ARE IN RESPECTFUL AGREEMENT WITH THE VIEW TA KEN IN THE CASE OF CIT & ANR. VS SEDCO FOREX INTERNATIONAL DRI LLING CO. LTD. (SUPRA), BY THE UTTARANCHAL HIGH COURT. WE ARE CLEA RLY OF THE OPINION THAT WHEN A DUTY IS CAST ON THE PAYER TO PA Y THE TAX AT SOURCE, ON FAILURE, NO INTEREST CAN BE IMPOSED ON T HE PAYEE ASSESSEE. 4. SINCE THE DECISION OF THE TRIBUNAL ON THE POINT OF LEVY OF INTEREST U/S 234B IN CASE OF NON-RESIDENT ASSESSEE IS CONTRARY T O THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT (SUPRA) THEREFORE , IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN CASE OF ACIT VS SAURASH TRA KUTCH STOCK EXCHANGE LTD. IT CONSTITUTES A ERROR APPARENT FROM RECORD WHICH REQUIRES MA 260/M/2013 HELIX ENERGY SOLUTIONS GROUP OMC 3 RECTIFICATION. ACCORDINGLY, WE RECALL THE IMPUGNED ORDER OF THE TRIBUNAL TO THE EXTENT OF THE FINDING ON THE ISSUE OF CHARGEABI LITY OF INTEREST U/S 234B. 5. SINCE THE ISSUE IS COVERED BY THE DECISION OF HO NBLE JURISDICTIONAL HIGH COURT IN CASE OF DIT (INTERNATIONAL TAXATION) VS NGC NETWORK ASIA LLC (SUPRA) THEREFORE, RESPECTFULLY FOLLOWING THE S AME, WE ALLOW THE GROUND OF THE ASSESSEE IN RESPECT OF LEVY OF INTERE ST U/S 234B. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF JANUARY 2014 SD/- SD/- (N. K. BILLAIYA) ACCOUNTANT MEMBER (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI: DATED: 17 TH JANUARY 2014 SUBODH. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI