M/s. Idea Cellular Ltd., Indore V. The I.T.O.(TDS)-1, Indore

MA 4/IND/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2997 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 30-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Opportunity of being heard; Question of law
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. M.A.NO.04/IND/2015 (ARISING OUT OF I.T.A.NO. 267/IND/2010) A.Y. : 2007-08 IDEA CELLULAR LIMITED, 139-140, ELECTRONIC COMPLEX, PARDESHIPURA, INDORE. VS. INCOME - TAX OFFICER, (TDS)-I, INDORE. APPLICANT RESPONDENT PAN NO. :AAACB2100P APP LICANT BY : SHRI RONAK DOSHI, C. A. RESPONDENT BY : SHRI R. A. VERMA, SR. DR DATE OF HEARING : 08 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 13 . 0 5 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS MISC. APPLICATION IS FILED BY THE ASSESSEE ON THE GROUND THAT THE TRIBUNAL HAS FOLLOWED THE ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2006-07 AND DECIDED THE ISS UE. 2. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT TH E TRIBUNAL HAS DECIDED THE ISSUE FOLLOWING THE DECISI ON OF ASSESSEES OWN CASE WHICH WAS DECIDED BY THE HON'BL E DELHI HIGH COURT IN THE CASE OF THE SAME ASSESSEE. THE HO N'BLE DELHI HIGH COURT HAS TAKEN A VIEW AGAINST THE ASSES SEE. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT NO APP EAL WAS PENDING FOR EARLIER ASSESSMENT YEAR IN I.T.A.T., IN DORE BENCH. THEREFORE, THE ASSESSEES OWN CASE WHICH WAS DECIDE D BY HON'BLE DELHI HIGH COURT WAS WRONGLY FOLLOWED BY TH E TRIBUNAL. THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT HON'BLE KARNATAKA HIGH COURT HAS DECIDED THE I SSUE IN FAVOUR OF BHARTI AIRTEL LIMITED, VODAFONE ESSAR SOU TH LIMITED AND TATA TELESERVICES LIMITED. THEREFORE, THE ASSES SEE HAS -: 3: - 3 PRAYED THAT IT IS A MISTAKE APPARENT FROM RECORD AN D THIS ORDER MAY BE RECTIFIED ACCORDINGLY. 3. THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT THE MAIN ISSUE IN APPEAL IS WHETHER TDS IS TO BE DEDUCTED OR NOT FOR DISCOUNT OFFER TO PRE-PAID DISTRIBUTORS BY THE ASSESSEE. HON'BLE KERALA HIGH COURT IN THE CASE OF VODAFONE ESSAR CELLULAR LIMITED, 332 ITR 255, HON'BLE CALCUT TA HIGH COURT IN THE CASE OF BHARTI CELLULAR LIMITED, VS. A CIT, 200 TAXMAN 254 AND HON'BLE DELHI HIGH COURT IN THE CASE OF THE ASSESSEE IDEA CELLULAR LIMITED, DECIDED THE CASE AG AINST THE ASSESSEE. THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT THE HON'BLE KARNATAKA HIGH COURT AFTER CONSIDE RING THE ABOVE DECISIONS HAS RULED THAT IN CASE OF TRADE DIS COUNT EXTENDED BY MANUFACTURER OR SUPPLIER TO DISTRIBUTOR , NO COMMISSION CONTEMPLATED AND, THEREFORE, NO TDS IS R EQUIRED U/S 194A, BASED ON CERTAIN ACCOUNTING TREATMENT. T HE FINDING HAS TO BE VERIFIED BY THE ASSESSING OFFICER. THE LD . AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT IN THE ABOVE DECISIONS, SLP HAS BEEN FILED AND THE MATTER IS PENDING BEFORE THE HON'BLE SUPREME COURT. THEREFORE, THE ORDER MAY BE MODIFIED. -: 4: - 4 THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT THIS TYPE OF ISSUES ARE OF REPETITIVE IN APPEALS, THEREF ORE, IT MAY BE RESTORED TO THE AO TO DECIDE THE ISSUE TILL THE OUT COME OF SLP. 4. ON THE OTHER HAND, THE LD. SENIOR D.R. RELIED UPON THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THE I.T.A. T., INDORE BENCH, IN PARA 5.1 HAS FOLLOWED THE DECISION OF HON 'BLE DELHI HIGH COURT IN THE ASSESSEES OWN CASE. THE APPEAL F OR EARLIER YEAR WAS NOT PENDING BEFORE THE I.T.A.T. INDORE BEN CH, BUT THE SAME ISSUE WAS DECIDED BY THE HON'BLE DELHI HIGH CO URT IN ASSESSEES OWN CASE. THEREFORE, THERE WAS NO MISTAK E APPARENT IN THE ORDER PASSED BY THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE REPRODUCE PARA 5.1 OF THE I.T.A.T., INDORE BENCH , WHICH READS AS UNDER :- 5.1 IN VIEW OF THE FACTS THAT THE ISSUE HAS ALREADY BEEN DECIDED AGAINST THE ASSESSEE BY THE HON'BLE KERALA HIGH COURT IN THE CASE OF VODAFONE ESSAR CELLULAR LIMITED (SUPRA) AND BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF BHARTI CELLULAR LIMITED (SUPRA) AND THE -: 5: - 5 COORDINATE BENCH OF THIS TRIBUNAL (I.T.A.T. INDORE) HAS FOLLOWED THE JUDGEMENT OF THE HON'BLE HIGH COURT IN ASSESSEE S OWN CASE IN EARLIER YEAR, THEREFORE, WE HAVE NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A), THE SAME IS HEREBY UPHELD AND GROUND NOS. 1 & 2 OF ASSESSEES ARE REJECTED. HO IT IS CLARIFIED THAT IN CASE THE ISSUE IS DECIDED BY THE HON'BLE APEX COURT, THE ASSESSEE WOULD BE AT LIBERTY TO EXERCISE ITS REMEDY AS AVAILABLE UNDER THE LAW. 6. FROM THE ABOVE PARAGRAPH OF THE TRIBUNAL, WE FOUND THAT THE TRIBUNAL HAS FOLLOWED THE DECISIONS OF HON 'BLE DELHI HIGH COURT, HON'BLE KERALA HIGH COURT AND HON'BLE C ALCUTTA HIGH COURT AND IN THAT THE ISSUE HAS BEEN DECIDED A GAINST THE ASSESSEE. THE ISSUE HAS ALREADY BEEN DECIDED BY THE VARIOUS HIGH COURTS OF THIS COUNTRY. THE LD. AUTHORIZED REP RESENTATIVE SUBMITTED BEFORE US THAT THE MATTER IS PENDING BEFO RE THE HON'BLE SUPREME COURT AND THE MATTER IS LIKELY TO B E DECIDED WITHIN NO TIME. LD. SENIOR D.R. SUBMITTED THAT THE ASSESSEE HAS ALSO FILED THE APPEAL AGAINST THE ORDER OF THIS BENCH, WHICH IS PENDING BEFORE THE HON'BLE MADHYA PRADESH HIGH -: 6: - 6 COURT, INDORE. WE FIND THAT THE MATTER IS SUB-JUDIC E, MOREOVER, THE CONTENTION OF THE ASSESSEE THAT VARIOUS HIGH CO URTS - HON'BLE KERALA HIGH COURT, HON'BLE CALCUTTA HIGH CO URT AND HON'BLE DELHI HIGH COURT HAVE ALREADY DECIDED THE C ASE AGAINST THE ASSESSEE. THEREFORE, WE FIND THAT THERE IS NO MISTAKE WHICH CAN BE RECTIFIED U/S 254(2) OF THE IN COME-TAX ACT, 1961. THE ASSESSEES GRIEVANCE THAT IF THE MAT TER IS DECIDED IN THE HON'BLE SUPREME COURT, THE ISSUE MAY BE RESTORED TO THE AO AS IT IS A REPETITIVE APPEAL. WE CLARIFY THAT AS PER SECTION 158A OF THE INCOME-TAX ACT, 1961, WH ICH READS AS UNDER :- SECTION 158A OF THE INCOME-TAX ACT, 1961, INSERTED BY THE TAXATION LAWS (AMENDMENT) ACT, 1984, MAKES SPECIAL PROVISION FOR AVOIDING REPETITIVE APPEALS. THIS SECTION PROVIDES THAT WHERE AN ASSESSEE CLAIMS THAT ANY QUESTION OF LAW ARISING IN HIS CASE FOR AN ASSESSMENT YEAR WHICH IS PENDING BEFORE THE ASSESSING OFFICER OR ANY APPELLATE AUTHORITY IS IDENTICAL WITH A QUESTION OF LAW ARISING IN HIS CAS E FOR ANOTHER ASSESSMENT YEAR WHICH IS PENDING BEFORE THE HIGH COURT ON A REFERENCE UNDER SECTION 256 OR IN APPEAL UNDER SECTION 260A OR BEFORE THE SUPREME COURT ON A REFERENCE UNDER SECTION 257 OR IN APPEAL S UNDER SECTION 261, HE MAY FURNISH TO THE CONCERNED AUTHORITY A DECLARATION IN THE FORM AS AT APPENDIX XXII (A) WHICH SHALL BE VERIFIED IN THE MANNER INDICATED THEREIN. THE DECLARATION AND THE VERIFICA TION SHALL BE SIGNED BY THE PERSON COMPETENT TO SIGN THE -: 7: - 7 APPEAL. SUCH DECLARATION SHALL BE FURNISHED TO THE APPELLATE TRIBUNAL IN TRIPLICATION. ON RECEIPT OF DECLARATION MENTIONED ABOVE, THE APPELLATE TRIBUNAL SHALL CALL FOR A REPORT FROM THE ASSESSING OFFICER ON THE CORRECTNESS OF THE CLAIMS MADE IN THE DECLARATION AND WHERE THE ASSESSING OFFICER MAKES A REQUEST TO THE APPELLATE TRIBUNAL T O GIVE HIM AN OPPORTUNITY OF BEING HEARD IN THE MATTE R, THE APPELLATE TRIBUNAL WILL ALLOW HIM SUCH OPPORTUNITY. THE ASSESSEE IS AT LIBERTY TO GIVE THIS UNDERTAKING BEFORE THIS TRIBUNAL AS STATED IN THE ORDER OF THE TRIBUNAL. 7. IN THE RESULT, THE MISC. APPLICATION IS DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 13 TH MAY, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :13 TH MAY , 2015. CPU* 12