ACCENTURE UK LIMITED , MUMBAI V. DEPUTY DIRECTOR OF INCOME TAX (IT) 1(1), MUMBAI

MA 562/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 1600 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Keywords: TDS
• Section: 234B; 201; 208; 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER MA NO. 562/MUM/2018 (OUT OF ITA NO. 8676/MUM/2010) : A.Y : 2006 - 07 ACCENTURE UK LIMITED C/O. ACCENTURE SERVICES PVT. LTD., PLANT NO. 3, GODREJ & BOYCE COMPLEX, PIROJSHAH NAGAR, OFF LBS MARG, MUMBAI 400 079. PAN : AAECA9264H (APPLICANT) VS. DCIT(IT) - 1(1), MUMBAI. (RESPONDENT) APPLICANT BY : SHRI M.P. LOHIA & SHRI NIKHIL TIWARI RESPONDENT BY : SHRI MANISH KUMAR SINGH DATE OF HEARING : 18/01/2019 DATE OF PRONOUNCEMENT : 13 /02/2019 O R D E R PER G.S. PANNU , VICE PRESIDENT : THE PRESENT APPLICATION HAS BEEN MOVED BY THE ASSESSEE UNDER SECTION 254(2) OF THE ACT POINTING OU T THAT CERTAIN MISTAKE APPARENT FROM THE RECORD HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 23.02.2018. 2. THUS, IT IS SOUGHT TO BE POINTED OUT THAT WHILE ADJUDICATING GROUND OF APPEAL NO. 3 IN THE APPEAL FOR ASSESSMENT YEAR 2006 - 07, A MISTAKE HAS OCCU RRED. GROUND OF APPEAL NO. 3 WAS WITH REGARD TO THE CHALLENGE TO LEVY OF 2 MA NO. 562/MUM/2018 ACCENTURE UK LIMITED INTEREST UNDER SECTION 234B AND 234C OF THE ACT OF ` 1,71,68,638/ - AND ` 15,76,393/ - RESPECTIVELY. 3. THE TRIBUNAL IN ITS ORDER DATED 23.02.2018 VIDE PARA 9 DISPOSED OFF THE SAID GROU ND BY OBSERVING THAT CHARGING OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT IS CONSEQUENTIAL IN NATURE AND THUS, NO SPECIFIC ADJUDICATION WAS REQUIRED. 4. BY WAY OF THE PRESENT PETITION, IT IS SOUGHT TO BE POINTED OUT THAT AT THE TIME OF HEARING OF T HE APPEAL, SPECIFIC ARGUMENT WAS RAISED AGAINST THE LEVY OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT BY RELYING ON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF DIT(IT) VS M/S NGC NETWORK ASIA LLC, 3 1 3 ITR 187 (BOM.) . THE PLEA OF THE ASSESSEE WAS THAT IT BEING A NON - RESIDENT , AND SINCE ITS ENTIRE INCOME WAS SUBJECTED TO DEDUCTION OF TAX AT SOURCE, THE INTEREST UNDER SECTION 234B AND 234C OF THE ACT IS NOT CHARGEABLE. 5. WE FIND THAT THE MISTAKE SOUGHT TO BE POINTED OUT BY THE LEARNED REPRESENTATIVE IS BORNE OUT OF RECORD AND THE APPRECIATION OF THE AFORESAID ARGUMENT CANVASSED BY THE ASSESSEE, BASED ON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWO RK ASIA LLC (SUPRA) , ESCAPED THE ATTENTION OF THE BENCH WHILE DISPOSING OFF THE APPEAL . 6. IN THE COURSE OF HEARING OF THIS PETITION, THE AFORESAID WAS PUT ACROSS THE LD. DR. IT WAS ALSO POINTED OUT THAT THE PLEA OF THE APPELLANT IS FULLY SUPPORTED BY TH E JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWORK ASIA LLC (SUPRA) , AN ASPECT WHICH I S NOT DISPUTED BY THE LD.DR. 3 MA NO. 562/MUM/2018 ACCENTURE UK LIMITED 7. IN VIEW OF THE AFORESAID, WE DEEM IT FIT AND PROPER TO MODIFY OUR ORDER DATED 23.2.2018 (SUPRA) TO THE FOLLOWING EXTE NT. IN PARA 9 OF THE ORDER DATED 23.2.2018 (SUPRA), INSTEAD OF THE SENTENCE IN SO FAR AS GROUND OF APPEAL NO. 3 IS CONCERNED, THE SAME IS WITH RESPECT TO CHARGING OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT , WHICH IS CONSEQUENTIAL IN NATURE AND NO ADJUDICATION IS REQUIRED. , THE FOLLOWING BE READ THAT SO FAR AS THE CHALLENGE TO THE LEVY OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT BY WAY OF GROUND OF APPEAL NO. 3 IS CONCERNED, THE SAME IS FULLY COVERED BY THE JUDGMENT OF THE HON'BLE BOMBA Y HIGH COURT IN THE CASE OF NGC NETWORKS ASIA LLC (SUPRA). THE ASSESSEE BEING A NON - RESIDENT AND ITS ENTIRE INCOME BEING SUBJECTED TO TDS, NO ADVANCE TAX WAS PAYABLE IN TERMS OF SEC. 208 R.W.S. 20 9(1)(D) OF THE ACT AND THUS, FOLLOWING THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWORKS ASIA LLC (SUPRA), CHARGING OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT IS UNTENABLE. ACCORDINGLY, THE GROUND OF APPEAL NO. 3 IS ALLOWED. 8. ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF THE AS SESSEE IS ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 T H FEBRUARY, 2019. SD/ - SD/ - ( PAWAN SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) VICE PRESIDENT MUMBAI, DATE : 1 3 T H FEBRUARY , 201 9 *SSL* 4 MA NO. 562/MUM/2018 ACCENTURE UK LIMITED C OPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI