DZ BANK INDIA REPRESENTATIVE OFFICE, MUMBAI V. DCIT (IT) 2(1)(2), MUMBAI

MA 262/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4473 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 26-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief; TDS
• Section: 205

Judgement Text

MA No 262/Mum/2021 In ITA No.1812/Mum/2018 Assessment year: 2008-09 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI ‘I’ BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Sandeep Singh Karhail (Judicial Member)] MA No 262/Mum/2021 In ITA No.1812/Mum/2018 Assessment year: 2008-09 DZ Bank India Representative Office ............................ Appellant C/o. SRBC and Associates LLP, 14 th Floor, The Ruby, 29 Senapati Bapat Marg, Dadar (W), Mumbai 400028 [PAN: AABCD6455E] Vs. Deputy Commissioner of Income Tax (IT) 2(1)(2) Mumbai ........................ Respondent Appearances by Nitesh Joshi for the applicant Milind Chavan for the respondent Date of concluding the hearing : February 11, 2022 Date of pronouncement the order : May 05 , 2022 ORDER Per Pramod Kumar, VP: 1. By of this application the assessee applicant points out the following mistakes, said to the apparent on record, in our order dated 07.04.2021. 1. The Appellant files this miscellaneous application for rectification of certain mistakes in the Tribunal's Order dated 7 April 2021 disposing of its appeal for the assessment year 2008-09, which it is respectfully submitted, are apparent from the record. 2. In Ground Nos. 9 and 10 of the Appeal, it has been claimed that credit may be allowed in respect of tax deducted at source (TDS), including for such items where it MA No 262/Mum/2021 In ITA No.1812/Mum/2018 Assessment year: 2008-09 Page 2 of 3 could not furnish the TDS certificates, but, the income was received net of taxes. It is further claimed that raising of demands without allowing such credit for the TDS was not in consonance with section 205 of the Income-tax Act, 1961 (the Act). Though the Tribunal has reproduced the said grounds of appeal in paragraph 2 at page 2 of its Order, the said grounds have unfortunately remained un-adjudicated. The Appellant respectfully submits that non- disposal of these grounds discloses a mistake which is apparent from the record. 3. The Appellant states that the Indian borrowers have paid the aforesaid incomes after deducting tax at source in accordance with Article 11 of the Double Taxation Avoidance Agreement between India and Germany (the DTAA). The amount of such income assessed in the Appellant's hands represents the grossed-up amount in view of section 198 of the Act, as the arrangement was that tax thereon was to be borne by the Indian borrowers. The entire liability to pay tax stands discharged by the deduction of tax at source. Once the Appellant has been assessed on grossed up basis and it has received only the net amount from the Indian borrowers i.e., after deduction of tax at source, then, in view of section 205 of the Act and Office Memorandum No. F. No. 275/29/2014-IT(B) dated 11 March 2016, the Appellant cannot be called upon to pay the tax, notwithstanding whether the payer of income/deductor of tax has deposited the tax into the Government account. In this regard, reliance is also placed upon the following judgments where it has been held that assessee's placed in a similar position as the Appellant cannot be regarded as "assessee in default" and the amount to the extent of TDS cannot be recovered from them: Yashpal Sahni v. ACIT (20071 293 ITR 539 (Bom HC): Devarsh Pravinbhai Patel v. ACT [R/Special Civil Application No. 12965 & 12966 of 2018]; ACIT v. Om Prakash Gattani (2000] 242 ITR 638 (Gauhati); and Smt. Anusuya Alva v. Deputy Commissioner of Income-tax Circle-8(1) (2005] 147 taxman 152 (Kar.) 4. In view of the above the Appellant submits that the Tribunal may be pleases to: a. recall its Order to the extent of Ground Nos. 9 and 10 of the appeal for fresh hearing or pass appropriate thereon in the present proceedings itself; or b. pass such further and other order as it may deem it. 2. Learned counsel for the assessee points out that the tribunal has inadvertently left ground no 9 and 10 un-adjudicated. It is pointed out that while the related grounds were duly written in paragraph 2 on the impugned the order the same have not been disposed of. We are thus urged to recall the order for the limited purposes of adjudicating upon these two grounds of appeal which are as follows:- MA No 262/Mum/2021 In ITA No.1812/Mum/2018 Assessment year: 2008-09 Page 3 of 3 9. erred in not granting credit for tax deducted at source (TDS), including credit for which the appellant could not furnish certificates but the payments were received net of taxes. 10. erred in raising a demand, in respect of taxes already deducted at source appropriately by the deductor and, making a demand of the said taxed which is not in consonance as per provisions of section 205 of the Act. 3. Learned Departmental Representative fairly does not dispute the factual element embedded in the plea of the assessee, but relies upon the order of the Tribunal nevertheless. 4. Having heard the rival contentions, and having perused the material on record we find that an inadvertent error have indeed crept in our order dated 07.04.2021 inasmuch as there was no specific adjudication on the ground no 9 and 10. We therefore, we deem it fit and proper recall the impugned order for the limited purposes of disposing of ground no 9 and 10 above. The registry is directed post the matter for hearing, on these limited grounds of appeal in the first half of July. Ordered, accordingly. 5. In the result miscellaneous application is allowed in the terms indicated above Pronouncement in the open court today on the 05 th May, 2022. Sd/- Sd/- Sandeep Singh Karhail Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 05 th May, 2022 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/ Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai