Idea Cellular Ltd., Pune V. Additional Commissioner of Income-tax, Pune

MA 73/PUN/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5712 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-01-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 14-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: RAKESH DWIVEDI
• Keywords: Rectification of order
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO S. 71 TO 74 /P U N/201 7 (ARISING OUT OF ITA NOS. 1867 TO 1870/PUN/2014 ) / ASSESSMENT YEAR S : 20 0 7 - 08 TO 2010 - 11 IDEA CELLULAR LTD., 11/1, SHARDA CENTR E, OFF KARVE ROAD, ERANDWANE, PUNE - 411004 PAN : AAACB2100P . / APP LICANT V/S. ADDITIONAL COMMISSIONER OF INCOME TAX, (TDS), PUNE . / RESPONDENT ASSESSEE BY : S HRI RAKESH DWIVEDI REVENUE BY : SHRI MUKESH JHA / DATE OF HEARING : 1 9 - 01 - 2018 / DATE OF PRONOUNCEMENT : 19 - 01 - 2018 / ORDER PER VIKAS AWASTHY, JM : TH E ASSESSEE/APPLICANT HAS FILED THESE MISCELLANEOUS APPLICATION S U/S. 254(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) SEEKING RECTIFICATION OF MISTAKE IN THE ORDER OF TRIBUNAL IN THE AFORESAID APPEALS DATED 04 - 01 - 2017. 2 MA NO S. 71 TO 74/PUN/2017, A.YS. 2007 - 08 TO 2010 - 11 2. SHRI RAKESH DWIVEDI APPEARING ON BEHALF OF THE ASSESSEE HAS FILED REQUEST LETTER DATED 18 - 01 - 2018 TO WITHDRAW THE MISCELLANEOUS APPLICATIONS. THE RELE VANT EXTRACT OF THE LETTER IS REPRODUCED HERE - IN - BELOW : THE CAPTIONED MATTERS ARE SCHEDULED FOR HEARING BEFORE THE HON'BLE 'B' BENCH OF INCOME TAX APPELLATE TRIBUNAL, PUNE , ( 'TRIBUNAL') TOMO RROW. IN THIS CONNECTION, WE HUMBLY STATE AS UNDER: THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE HON'BLE TRIBUNAL FOR AY 2007 - 08 TO AY 2011 - 12 FOR QUANTUM PROCEEDINGS AND AY, 2007 - 08 TO 2010 - 11 FOR PENALTY PROCEEDINGS. THE APPEAL WAS HEARD ON OCTOBER 18, 2016 AND A CONSOLIDATED APPELLATE ORDER DATED JANUARY 04, 2017 WAS PASSED BY THE HONBLE TRIBUNAL (ATTACHED HEREWITH AS 'ANNEXURE A. ON PERUSAL OF TH E CONSOLIDATED ORDER PASSED BY THE HON BLE TRIBUNAL IT WAS NOTICED THAT YOUR HONOURS HAD ALLOWED IN PRINCIPAL, THE CLAIM OF THE ASSESSEE ON MERITS FOLLOWING T HE DECISION OF HON'BLE KARNATAKA HIGH COURT IN BHARTI AIRTEL LTD V. DCIT (372 ITR 33) ( KAR HC) STATING THEREIN THAT THE SALE OF SIM CARDS / RECHARGE COUPON AT DISCOUNTED RATE TO DISTRIBUTORS IS NOT COMMISSION AND THEREFORE NOT LIABLE TO TAX DEDUCTION AT S O URCE U /S 194H OF THE ACT. HOWEVER , THESE MATTERS WERE REMANDED TO THE TDS OFFICER ONLY FOR THE LIMITED PURPOSE OF VERIFYING THE ACCOUNTING TREATMENT ACCORDED BY THE ASSESSEE IN VIEW OF THE DECISION OF THE BHARTI AIRTEL (SUPRA). THE' HON'BLE TRIBUNAL HAD AL SO RESTORED THE PENALTY PROCEEDING TO THE FILE OF THE TDS O FFICER . IN VIEW OF THE SAME, THE ASSESSEE HAD FILED AN MAS DATED JULY 13; 2017 ON JULY 14, 2017 STATING THEREIN THAT RESTORING THE PENALTY PROCEEDINGS INSPITE OF HOLDING THAT THE ASSESSEE WAS NO T AN 'ASSESSEE IN DE FAULT FOR NON - DEDUCTION OF TAX AT SOURCE U/S. 194H OF THE ACT, WAS A MISTAKE APPARENT ON RECORD AND NEEDED TO BE AMENDED SUITABLY (ATTACHED HEREWITH AS ANNEXURE B TO E). IN THE MEANWHILE PURSUANT TO THE DIRECTIONS OF THE HONBLE T RIBUNAL, THE TDS OFFICER PASSED AN ORDER GIVING EFFECT, FOR ALL THE CAPTIONED ASSESSMENT YEARS, DATED SEPTEMBER 18, 2017 ON NOVEMBER 23, 2017 (ATTACHED HEREWITH AS ANNEXURE F TO I) TO THE HONBLE TRIBUNALS ORDER AFTER VERIFYING THE DETAILS, WHEREIN THE TDS OFFICER HAS GRANTED TOTAL RELIEF FROM THE PENALTY. IN VIEW OF THE ABOVE, THE ASSESSEE WISHES TO WITHDRAW THE MA FILED BEARING MA NO. 71 TO 74 (ARISING OUT OF ITA NO. 1867 TO 1870). THE ASSESSEE REQUESTS YOUR HONOUR TO KINDLY ALLOW THE ASSESSEE TO W ITHDRAW THE AFOREMENTIONED MAS. 3 MA NO S. 71 TO 74/PUN/2017, A.YS. 2007 - 08 TO 2010 - 11 3. SHRI MUKESH JHA REPRESENTING THE DEPARTMENT SUBMITTED THAT THE DEPARTMENT HAS NO OBJECTION IN CASE THE ASSESSEE WISHES TO WITHDRAW THE MISCELLANEOUS APPLICATIONS. 4. IN VIEW OF THE WRITTEN REQUEST MADE BY THE ASSESSEE/APPLICANT THE MISCELLANEOUS APPLICATIONS ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN OPEN COURT AFTER HEARING OF THE MISCELLANEOUS APPLICATIONS ON FRIDAY, THE 19 TH DAY OF JANUARY, 2018. SD/ - SD / - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 19 TH JANUARY, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - V, PUNE 4. / THE CIT( TDS), PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE