Prashanth Fertility Research Centre Pvt. Ltd., CHENNAI V. ITO, CHENNAI

MA 46/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4455 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-07-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 24-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: T VASUDEVAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NOS.45, 46 & 47/MDS/2016 (IN I.T.A. NOS.2311/MDS/2014 & 486 & 487/MDS/2015) & '& / ASSESSMENT YEARS : 2013-14, 2012-13 & 2011-12 M/S PRASHANTH FERTILITY RESEARCH CENTRE PVT. LTD., 76 / 77, HARRINGTON ROAD, CHETPET, CHENNAI - 600 031. PAN : AACCP 2513 J V. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION II(1), CHENNAI. ()*& /PETITIONER) ()+*,/ RESPONDENT) )*& . / /PETITIONER BY : SHRI T. VASUDEVAN, ADVOCATE )+*, . / / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT 0 . 1$ / DATE OF HEARING : 01.07.2016 2!' . 1$ / DATE OF PRONOUNCEMENT : 01.07.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITIONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER O F THIS TRIBUNAL DATED 15.10.2015. 2. SHRI T. VASUDEVAN, THE LD. COUNSEL FOR THE ASSES SEE, SUBMITTED THAT THIS TRIBUNAL FOUND THAT THE PAYMENT MADE BY THE 2 M.P. NOS.45 TO 47/MDS/16 ASSESSEE TO NON-RESIDENT EMBRYOLOGISTS FOR THEIR PR OFESSIONAL SERVICES RENDERED IN INDIA IS TAXABLE IN INDIA. AC CORDING TO THE LD. COUNSEL, BECAUSE OF DOUBLE TAXATION AVOIDANCE AGREE MENT, THE PAYMENT MADE BY THE ASSESSEE TO EMBRYOLOGISTS FOR T HEIR PROFESSIONAL SERVICE IN INDIA IS NOT TAXABLE IN IND IA. IT HAS TO BE TAXED IN THE CONTRACTING STATE. THE LD. COUNSEL FU RTHER SUBMITTED THAT THE ASSESSEE, IN FACT, OBTAINED PERMANENT ACCO UNT NUMBER DURING THE YEAR UNDER CONSIDERATION. THEREFORE, TH E ASSESSEE HAS DULY COMPLIED WITH STATUTORY REQUIREMENT AND HENCE THERE CANNOT BE ANY DISALLOWANCE. LD. COUNSEL FURTHER SUBMITTED TH AT THERE WAS NO DEFAULT ON THE PART OF THE ASSESSEE WARRANTING LEVY OF INTEREST. REFERRING TO THE ORDER OF THIS TRIBUNAL DATED 15.10 .2015, MORE PARTICULARLY AT PARA 10, THE LD. COUNSEL SUBMITTED THAT THIS TRIBUNAL OBSERVED THAT THE AMOUNT RECEIVED BY THE NON-RESIDE NT FOREIGN COMPANY IS TAXABLE IN INDIA AND ALSO IN THE ABSENCE OF PERMANENT ACCOUNT NUMBER TAX HAS TO BE DEDUCTED AT THE RATE O F 20%. ACCORDING TO THE LD. COUNSEL, THE FACT THAT THE ASS ESSEE OBTAINED PERMANENT ACCOUNT NUMBER, WHICH WAS RAISED BEFORE T HIS TRIBUNAL BY WAY OF A SPECIFIC GROUND, WAS NOT CONSIDERED. T HE LD. COUNSEL FURTHER SUBMITTED THAT IT IS NOT A CASE OF NON-DEDU CTION OF TDS BUT, ONLY A SHORT DEDUCTION. ACCORDING TO THE LD. COUNS EL, FOR SHORT 3 M.P. NOS.45 TO 47/MDS/16 DEDUCTION, THE ASSESSEE IS NOT LIABLE TO PAY INTERE ST AND THERE CANNOT BE ANY DISALLOWANCE. 3. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THIS TRIBUNAL FOUND THAT IT IS NOT THE CASE OF THE ASSESSEE BEFORE THIS TRIBUNAL THAT THE PAYMENT MADE BY THE ASSESSEE TO NON-RESIDENTS IS NOT TAXABLE IN IND IA. THIS ARGUMENT WAS NOT MADE BEFORE THIS TRIBUNAL DURING T HE COURSE OF HEARING. THEREFORE, THE CONTENTION OF THE ASSESSEE THAT THE PAYMENT MADE BY THE ASSESSEE IS NOT TAXABLE IN INDI A DUE TO DOUBLE TAXATION AVOIDANCE AGREEMENT IS A NEW CASE B EFORE THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT A NEW PLEA CANNOT BE ENTERTAINED AT THIS STAGE. WITH REGARD TO PERMANENT ACCOUNT NUMBE R, THIS TRIBUNAL HAS TAKEN NOTE OF THE FACT THAT THE ASSESS EE OBTAINED PERMANENT ACCOUNT NUMBER ON 27.02.2013. ON A QUERY FROM THE BENCH, THE LD. COUNSEL FOR THE ASSESSEE FAIRLY ACCE PTED THAT THE PAYMENT MADE BY THE ASSESSEE WAS IN THE NATURE OF F EE FOR TECHNICAL SERVICE. THEREFORE, THE ASSESSEE HAS TO NECESSARILY DEDUCT TAX WHILE PAYING TO NON-RESIDENTS. THIS OBS ERVATION WAS 4 M.P. NOS.45 TO 47/MDS/16 RECORDED AT PAGE 5 OF THE TRIBUNAL ORDER. THEREFOR E, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS NO PRIMA FACIE ERROR IN THE ORDER WHICH NEEDS TO BE RECTIFIED UNDER SECTION 254 (2) OF THE INCOME-TAX ACT, 1961. IN VIEW OF THIS, THIS TRIBUN AL DO NOT FIND ANY MERIT IN THE MISCELLANEOUS PETITION FILED BY THE AS SESSEE. ACCORDINGLY, THE SAME IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2016 AT CHENNAI. SD/- SD/- (. !' ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 1 ST JULY, 2016. KRI. . )156 76'1 /COPY TO: 1. )*& / PETITIONER 2. )+*, /RESPONDENT 3. 0 81 () /CIT(A) 4. 0 81 /CIT 5. 69 )1 /DR 6. :& ; /GF.