TATA TELESERVICES (MAHARASHTRA) LIMITED, MUMBAI V. JCIT (OSD) DY. CIT CIRCLE-8(3)(1), MUMBAI

MA 623/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1330 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2014-2015
• Appeal Filed On: 10-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 201(1); 13

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SRI MAHAVIR SINGH, VP AND SRI RAJESH KUMAR, AM . / MA NO. 623 / MUM/ 2019 ( ARISING IN ITA NO. 1493/MUM/2018 FOR A.Y:2014 - 15) TATA TELESERVICES (MAHARASHTRA) LIMITED D - 26 TTC INDUSTRIAL AREA, MIDC, SANPADA, P.O. TURBHE, NAVI MUMBAI - 400 073 ( / APPLICANT) / VS. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE 8(3)(1), ROOM NO.615, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400 020 ( P`%YAQAAI - / RESPONDENT) . / PAN NO. AAADH 1458 C / APPLICANT BY : SHRI HITEN CHANDE, AR / RESPONDENT BY : MS. SHREEKALA PARDESHI, DR / DATE OF HEARING : 27.11.2020 / DATE OF PRONOUNCEMENT : 07.12.2020 / O R D E R , / PER MAHAVIR SINGH, VP : BY WAY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS REQUESTED FOR R ECTIFICATION OF TRIBUNAL ORDER IN ITA NO. 1204 & 1493/MUM/2018 DATED 28.08.2019 , FOR ASSESSMENT YEAR 2014 - 15. PAGE | 2 MA NO.623/MUM/2019 TATA TELESERVICES (MAHARASHTRA) LIMITED; 2014 - 15 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SHRI HITEN CHANDE, STATED THAT THE TRIBUNAL HAS DECIDED THE APPEAL OF REVENUE IN ITA NO.1493/ MUM/2018 FOR ASSESSMENT YEAR 2014 - 15 VIDE ORDER DATED 28. 08.2019, WHEREIN TRIBUNAL HAS MADE AN INADVERTENT MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER BY QUOTING THE FAVORABLE EXTRACTS FROM TRIBUNAL ORDER IN ASSESSEES OWN CASE IN ITA NOS. 2043 - 2045 /MUM/2014. HE STATED THAT THE TRIBUNAL HAS QUOTED PARA 13 BUT EXTRACT IS WRONG. HE REFERRED TO THE FOLLOWING PARA WHICH IS CORRECT PARA: - 7. FROM THE AFORESAID FACTS, IT IS CLEARLY EVIDENT THAT AS FAR AS SALE OF STARTER KIT / SIM CARD IS CO NCERNED, IT IS PURELY A PURCHASE / SALE TRANSACTION ON PRINCIPAL TO PRINCIPAL BASIS AND THERE IS NO RELATIONSHIP OF AGENCY. THAT BEING THE CASE, THE PROVISIONS OF SECTION 194H ARE NOT APPLICABLE. THE HON'BLE KARNATAKA HIGH COURT AFTER EXAMINING IN DETAIL T HE AFORESAID FACTORS HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY REVERSING THE ORDER OF THE TRIBUNAL. IN VIEW OF THE CHANGED SCENARIO, AFTER THE ORDER OF THE HON'BLE KARNATAKA HIGH COURT AS REFERRED TO ABOVE, THE DECISION OF THE LEARNED COMMISSIONE R (APPEALS) CANNOT BE SUSTAINED. IN FACT, ITAT, JAIPUR BENCH, IN CASE OF M/S. TATA TELESERVICES LTD. V/S ITO, ITA NO.309/JP./2012 AND OTHERS, DATED 13TH MARCH 2015, FOLLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT (SUPRA), HELD THAT PROVISIONS OF SEC TION 194H IS NOT ATTRACTED ON THE DISCOUNT GIVEN ON SALE OF PRE PAID STARTER KIT AND ACCORDINGLY, FOLLOWING THE DECISIONS REFERRED TO ABOVE, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) AND QUASH THE DEMAND RAISED BY THE ASSESSING OFFICER UNDER SECTIONS 201(1) AND 201(1A) . 3. THE LEARNED COUNSEL STATED THAT THE TRI BUNAL ORDER DATED 28.08.2019 MAY SUITABLY RECTIFIED WITH REGARD TO REVENUES APPEAL. ON PAGE | 3 MA NO.623/MUM/2019 TATA TELESERVICES (MAHARASHTRA) LIMITED; 2014 - 15 THE OTHER HAND, THE LEARNED SR. DEPARTMENTAL REPRESENTATIVE FAIRLY AGREED THAT THE TR IBUNAL HAS COMMITTED MISTAKE BY REPRODUCING THE WRONG PARA. 4. AFTER HEARING BOTH THE SIDES AND GOING THROUGH THE FACTS, WE ARE OF THE VIEW THAT THE CORRECT PARA NOW REFERRED BY THE LEARNED COUNSEL BE READ AS PARA 7 OF THE TRIBUNALS ORDER AND ACCORDINGLY MI STAKE IS RECTIFIED. 5. IN THE RESULT, THE MA OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.12.2020. SD/ - SD/ - ( / RAJESH KUMAR ) ( /MAHAVIR SINGH) ( / ACCOUNTANT MEMBER) ( / VICE PRESIDENT ) , / MUMBAI, DATED: 07.12.2020 , . / SUDIP SARKAR, SR.PS / COPY OF THE ORDE R FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, //TRUE COPY// / ASST. REGISTRAR , / ITAT, MUMBAI