ASST CIT 16(1), V. DIGIWAVE INFRASTRUCTURE & SERVICES P.LTD,

MA 48/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3655 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 27-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G N MAKWANA
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER MA NO.48/M/2015 (ARISING OUT OF ITA NO.723/M/2012) ASSESSMENT YEAR: 2005-06 ASSTT. COMMISSIONER OF INCOME TAX 16(1), MUMBAI. [PREVIOUSLY APPELLANT WAS JT. COMMISSIONER OF INCOME TAX (OSD), RANGE 8(1), MUMBAI] AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S. DIGIWAVE INFRASTRUCTURE & SERVICES PVT. LTD., STAR HOUSE, 3 RD FLOOR, OFF. DR. D.E. MOSSES RD., MAHALAXMI, MUMBAI 400 011 PAN: AABCD 3096M (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI G.N. MAKWANA, A.R. REVENUE BY : SHRI DIVESH CHAWLA, D.R. DATE OF HEARING : 09.10.2015 DATE OF PRONOUNCEMENT : 09.10.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN MOV ED BY THE REVENUE PLEADING THAT AN ERROR APPARENT ON RECORD HAS OCCUR RED IN THE ORDER DATED 22.09.14 OF THIS TRIBUNAL PASSED IN ITA NO.723/M/20 12. IT HAS BEEN CONTENDED THAT THE TRIBUNAL, WHILE RELYING UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWORK LLC 313 ITR 187, HAS OBSERVED THAT THE INTEREST UNDER SECTION 234B CANNO T BE LEVIED ON THE ASSESSEE ON THE AMOUNT OF TAX IN RESPECT OF TDS AMOUNT WHICH WAS LIABLE TO BE DEDUCTED BY THE PAYER MBPL. THE ASSESSEE WAS NOT S UPPOSED TO PAY ADVANCE TAX TO THE EXTENT THE TDS WAS DEDUCTABLE BY THE OTH ER PARTY. NOW, THE REVENUE, THROUGH THIS APPLICATION, HAS PLEADED THAT THE RATE OF TDS ON THE MA NO.48/M/2015 (ARISING OUT OF ITA NO.723/M/2012) M/S. DIGIWAVE INFRASTRUCTURE & SERVICES PVT. LTD. 2 INTEREST AMOUNT IN QUESTION WAS 20% + SURCHARGE + E DUCATION CESS WHEREAS THE RATE OF TAX PAYABLE IN REGULAR COURSE WAS 35% + SUR CHARGE + EDUCATION CESS. IT HAS BEEN, THEREFORE, CONTENDED THAT THE AMOUNT OF T DS DEDUCTABLE WAS NOT SUFFICIENT TO DISCHARGE THE ENTIRE TAX LIABILITY OF THE ASSESSEE ON THE SAID AMOUNT. 2. WE FIND THAT THE TRIBUNAL IN ITS ORDER DATED 12. 09.14 HAS CATEGORICALLY DIRECTED THAT THE ASSESSEE AS PER PROVISIONS OF SEC TION 209(1)(D) OF THE INCOME TAX ACT WAS ENTITLED TO REDUCE THE AMOUNT OF DEDUCT ABLE TDS, WHETHER ACTUALLY DEDUCTED OR NOT BY THE PAYER, WHILE CALCUL ATING THE ADVANCE TAX PAYABLE. HOWEVER, THE TRIBUNAL HAS NOT QUANTIFIED THE AMOUNT OF TAX DEDUCTED OR THE RATE OF TAX DEDUCTABLE AS TDS BY THE PAYER O R PAYABLE BY THE ASSESSEE AS ADVANCE TAX. THE TRIBUNAL HAS ONLY HELD THAT THE A SSESSEE WAS ENTITLED TO REDUCE THE AMOUNT OF DEDUCTABLE TDS WHILE CALCULATI NG THE ADVANCE TAX PAYABLE. IT IS UP TO THE AUTHORITIES TO CALCULATE THE AMOUNT OF TDS DEDUCTABLE AND THE AMOUNT PAYABLE AND GIVE EFFECT TO THE ORDER OF THE TRIBUNAL ACCORDINGLY. THE TRIBUNAL HAS NOT HELD THAT THE AS SESSEE WAS NOT LIABLE TO PAY ANY INTEREST UNDER SECTION 234B AT ALL. IT IS UP T O THE AO/REVENUE TO CALCULATE THE AMOUNT OF TDS DEDUCTABLE AND REDUCE IT FROM THE ADVANCE TAX PAYABLE BY THE ASSESSEE. UNDER SUCH CIRCUMSTANCES, THERE CANN OT BE SAID TO BE ANY ERROR IN THE ORDER DATED 12.09.14 OF THIS TRIBUNAL. THERE I S NO MERIT IN THE MISCELLANEOUS APPLICATION MOVED BY THE REVENUE AND THE SAME IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2015. SD/- SD/- (B.R. BASKARAN) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 09.10.2015. * KISHORE, SR. P.S. MA NO.48/M/2015 (ARISING OUT OF ITA NO.723/M/2012) M/S. DIGIWAVE INFRASTRUCTURE & SERVICES PVT. LTD. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.