Robert Bosch GmbH, Germany V. ACIT, Bangalore

MA 31/BANG/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7670 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-02-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 15-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ETWA MUNDA CITIII
• Assessee Lawyers: S ANANTHA
• Section: 234B

Judgement Text

PAGE 1 OF 3 M.P. NO .31/BANG/2011 1 INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B BEFORE SHRI N K SAINI, ACCOUNANT MEMBER AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER M.P.NO.31/BANG/2011 (IN ITA NO.364/ BANG/2007) (ASST. YEAR 2003-04) ROBERT BOSCH GMBH, POSTTACH 106050, 70049, STUTTGART, GERMANY. PA NO.AADCR1702Q VS THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-11(2), BANGALORE. (APPELLANT) (RESPONDENT) DATE OF HEARING 24.02.2012 DATE OF PRONOUNCEMENT 24.02.2012 APPELLANT BY : SHRI S ANANTHA, C.A. RESPONDENT BY : SHRI ETWA MUNDA, CIT-III O R D E R PER GEORGE GEORGE K : THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE COMPANY ARISE OUT OF THE TRIBUNAL ORDER DATED 23 RD JULY, 2010 IN ITA NO.364/BANG/2007. 2. THE TRIBUNAL, WHILE PASSING ITS ORDER DATED 23 RD JULY, 2010, HAD HELD AT PAGE 2 OF ITS ORDER THAT GROUND NO.10 IS NO T MAINTAINABLE, AS THE LEVY OF INTEREST UNDER SECTION 234B OF THE ACT IS MANDAT ORY AND CONSEQUENTIAL IN NATURE. IT WAS SUBMITTED BY THE LEARNED AR THAT THI S FINDING OF THE PAGE 2 OF 3 M.P. NO .31/BANG/2011 2 TRIBUNAL IS INCORRECT IN VIEW OF THE JUDGEMENT OF T HE HONBLE UTTARANCHAL HIGH COURT IN THE CASE OF SEDCO FOREX INTERNATIONAL DRILLING CO. LTD. (264 ITR 320) AND THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF NGC NETWORK ASIA LLC (313 ITR 187), WHEREIN IT WAS HELD THAT TH E ASSESSEE IS NOT LIABLE TO PAY ADVANCE TAX ON THE INCOME RECEIVABLE BY IT WHEN I T IS SUBJECT TO DEDUCTION OF TAX AT SOURCE UNDER CHAPTER XVII-B OF THE ACT. THEREFORE, THE LEVY/CHARGING OF INTEREST UNDER SECTION 234B OF THE ACT DID NOT ARISE. IT WAS STATED THAT THE ABOVE MENTIONED JUDGEMENTS O F THE HONBLE HIGH COURTS ARE APPLICABLE TO THE FACTS OF THE INSTANT C ASE, AS THE ASSESSEE IN THIS CASE IS A NON-RESIDENT AND WHATEVER INCOME THA T IS CHARGEABLE TO TAX WAS TO BE SUBJECTED TO DEDUCTION UNDER SECTION 195 OF THE ACT. 3. THE LEARNED DR WAS DULY HEARD. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. AS RIGHTLY POINTED OUT BY THE LEARNED AR, THE ASSESSEE COMPANY IS A NON-RESIDENT AND ITS INCOME WAS LIABLE FOR DED UCTION OF TAX UNDER SECTION 195 OF THE ACT. THE HONBLE UTTARANCHAL HIGH COUR T IN THE CASE OF SEDCO FOREX INTERNATIONAL DRILLING CO. LTD. (264 ITR 320) AND THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWORK ASIA LLC (313 ITR 187) HAD HELD IN SUCH SITUATIONS THAT THE PETITIONER IS NOT LIABLE F OR LEVY OF INTEREST UNDER SECTION 234B OF THE ACT. WE HAVE IN OUR ORDER DATE D 23 RD JULY, 2010 HAD HELD THAT GROUND NO.10 WITH REFERENCE TO THE LEVY OF INTEREST UNDER SECTION 234B OF THE ACT IS NOT MAINTAINABLE SINCE LEVY OF IN TEREST IS MANDATORY AND CONSEQUENTIAL IN NATURE. IN VIEW OF THE ABOVE SAID JUDGEMENTS OF THE HONBLE HIGH COURTS, OUR CONCLUSION THAT GROUND NO.10 IS NO T MAINTAINABLE IS INCORRECT. THE NON-CONSIDERATION OF THE JUDGEMEN TS IN THE ORDER OF THE PAGE 3 OF 3 M.P. NO .31/BANG/2011 3 TRIBUNAL DATED 23 RD JULY, 2010 IS A MISTAKE APPARENT FROM RECORD WARRAN TING OUR INTERFERENCE UNDER SECTION 254(2) OF THE ACT. THEREFORE, WE RECALL THE FINDING IN OUR ORDER DATED 23 RD JULY, 2010 IN RESPECT OF GROUND NO.10 AND DECIDE THE MATTER IN THE LIGHT OF THE JUDGEMENTS RE FERRED SUPRA. 4.1. THE ISSUE REGARDING LEVY OF INTEREST UNDER SE CTION 234B HAS NOT BEEN RAISED BEFORE THE FIRST APPELLATE AUTHORITY. H ENCE, THIS MATTER IS RESTORED TO THE CIT(A) FOR FRESH CONSIDERATION. TH E CIT(A) SHALL DISPOSE OFF THE MATTER IN ACCORDANCE WITH LAW AFTER AFFORDI NG A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDER ED ACCORDINGLY. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. SD/- SD/- (N K SAINI) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED :24/02/2012 COPY TO:- 1.THE REVENUE 2. THE ASSESSEE 3. THE CIT CONCE RNED 4. THE CIT(A) CONCERNED 5. THE DR 6. GF MSP/- BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.