Appeal details
Counselvise Citation
[2020] 110 COUNSELVISE.COM (IT) 2859 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 11 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
25-11-2020
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Assessment Year
2011-2012
Appeal Filed On
14-09-2020
Judgement Text
M.A. NO. 89/KOL/2020 (IN ITA NO. 404/KOL/2015) ASSESSMENT YEAR : 2010-2011 & M.A. NO. 90/KOL/2020 (IN ITA NO. 625/KOL/2016) ASSESSMENT YEAR: 2011-2012 RECKITT BENCKISER (INDIA) PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER M.A. NO. 89/KOL/2020 (IN I.T.A. NO. 404/KOL/2015) ASSESSMENT YEAR: 2010-2011 & M.A. NO. 90/KOL/2020 (IN I.T.A. NO. 625/KOL/2016) ASSESSMENT YEAR: 2011-2012 RECKITT BENCKISER (INDIA) PRIVATE LIMITED,......... ........................... APPLICANT INFINITY LAGOON, 12 TH FLOOR, UNIT-1201, PLOT NO. E2-2/1, BLOCK-EP-GP, SALT LAKE, SECTOR V, KOLKATA-700091 [PAN NO.:AABCR2655Q] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .......................... RESPONDENT CIRCLE-12(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: SHRI DEEPAK CHOPRA, A.R., APPEARED ON BEHALF OF THE ASSESSEE SMT. RANU BISWAS, ADDL. CIT , APPEARED ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : NOVEMBER 20, 2020 DATE OF PRONOUNCING THE ORDER : NOVEMBER 25, 2020 O R D E R PER SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER :- THESE TWO ASSESSEES MISCELLANEOUS APPLICATIONS FI LED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT SEEK TO RE- CALL/RECTIFY THE TRIBUNALS COMMON ORDER DATED 17.0 6.2020 PASSED IN THE CORRESPONDING MAIN APPEALS ITA NOS. 404/KOL/2015 & 625/KOL/2016 PARTLY ALLOWING ITS SUBSTANTIVE GROUNDS RAISED THER EIN. HEARD BOTH THE PARTIES. CASE FILES PERUSED. M.A. NO. 89/KOL/2020 (IN ITA NO. 404/KOL/2015) ASSESSMENT YEAR : 2010-2011 & M.A. NO. 90/KOL/2020 (IN ITA NO. 625/KOL/2016) ASSESSMENT YEAR: 2011-2012 RECKITT BENCKISER (INDIA) PVT. LIMITED 2 2. WE NOW TAKE THE ASSESSEES FORMER MISCELLANEOUS APPLICATION 89/KOL/2020 IN RELATION TO THE MAIN APPEAL ITA 404/ KOL/2015 FOR A.Y. 2010-11. THE ASSESSEES FIRST AND FOREMOST SUBSTANT IVE GROUND IS THAT OUR IMPUGNED ORDER DATED 17.06.2020 SUFFERS FROM AN APP ARENT ERROR FOR HAVING NOT ADJUDICATED ITS GROUND(S) AS PER LAW. WE HAVE HEARD BOTH THE PARTIES. WE FIND FORCE IN THE ASSESSEES PLEADINGS SINCE ITS GROUND NO. 6 IN THE SUBSTANTIVE GROUNDS CHALLENGING CORRECTNESS OF THE LOWER AUTHORITIES ACTION GRANTING IT SHORT DEDUCTION OF TDS DEDUCTED OF RS.1,29,98,043/- TO THE EXTENT OF RS.1,05,57,280/- ONLY; HAS NOT BEEN C ONSIDERED. WE THEREFORE RESTORE THIS ISSUE TO THE ASSESSING OFFIC ER FOR CARRYING OUT THE NECESSARY FACTUAL VERIFICATION AS PER LAW. THIS SUB STANTIVE GROUND NO. 6 RAISED IN THE ASSESSEES APPEAL IS TREATED AS ALLOW ED FOR STATISTICAL PURPOSES. 3. THE ASSESSEES NEXT GRIEVANCE IS THAT ITS ADDITI ONAL GROUND NO. 13 CLAIMING REFUND FOR EXCESS DIVIDEND DISTRIBUTION TA X IN RESPECT OF DIVIDEND PAID TO THE NON-RESIDENT SHAREHOLDERS. WE NOTICE AT THIS STAGE THAT THE ASSESSEES LATTER MISCELLANEOUS APPLICATIO N NO. 90/KOL/2020 IN ITA NO. 625/KOL/2016 FOR AY 2011-12 ALSO RAISES AN IDENTICAL GROUND OF REFUND OF EXCESS DIVIDEND DISTRIBUTION TAX FOR PAYM ENTS MADE TO NON- RESIDENT SHAREHOLDERS IN ENGLAND AND SPAIN. LD. AUT HORIZED REPRESENTATIVE SUBMITTED THAT OUR COMMON ORDER HAS DIRECTED THE LOWER AUTHORITIES TO TAKE INTO ACCOUNT ONLY THE INDIA U K DOUBLE TAXATION AVOIDANCE AGREEMENT AND INDIA SPAIN DOUBLE TAXATI ON AVOIDANCE AGREEMENT HAS BEEN MISSED DUE TO OVERSIGHT. HIS CAS E THEREFORE IS THAT THE NECESSARY RECTIFICATION/MODIFICATION TO THIS EF FECT IS ALSO REQUIRED IN THE LATTER ASSESSMENT YEAR. THE REVENUE IS EQUALLY FAIR IN NOT DISPUTING ALL THESE CLINCHING FACTS. WE THEREFORE DIRECT THE ASSESSING OFFICER TO TREAT M.A. NO. 89/KOL/2020 (IN ITA NO. 404/KOL/2015) ASSESSMENT YEAR : 2010-2011 & M.A. NO. 90/KOL/2020 (IN ITA NO. 625/KOL/2016) ASSESSMENT YEAR: 2011-2012 RECKITT BENCKISER (INDIA) PVT. LIMITED 3 THE INDO-SPAIN DOUBLE TAXATION AVOIDANCE AGREEMENT AS WELL IN ASSESSMENT YEAR 2011-12 IN CONSEQUENTIAL PROCEEDING S AND ALSO DECIDE THE VERY ISSUE IN FORMER ASSESSMENT YEAR 2010-11. T HE ASSESSEES SUBSTANTIVE GROUND NO. 13 IN THE SAID FORMER ASSESS MENT YEAR IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES AND CORRESPONDI NG SIMILAR DIRECTIONS ARE ISSUED IN IDENTICAL SUBSTANTIAL GROUND NO. 13 F OR ASSESSMENT YEAR 2011-12. LATTER MISCELLANEOUS APPLICATION NO. 89/KO L/2020 IS ALLOWED IN THESE TERMS. 4. WE NOW REVERT BACK TO MA NO. 89/KOL/2020 FOR AY 2010-11 RAISING THE LAST SUBSTANTIVE GROUND THAT ALTHOUGH THE TRIBU NALS COMMON ORDER DATED 17.06.2020 HAD GRANTED RELIEF ON EDUCATION CE SS IN AY 2011-12 BUT THE SAME HAS NOT BEEN CONSIDERED IN THE FORMER AY 2 010-11. THIS FACT HAS GONE UN-REBUTTED FROM THE DEPARTMENTAL SIDE. WE THU S FOLLOW OUR DETAILED REASONING IN PARAGRAPHS 55 TO 59 OF THE IMPUGNED OR DER IN AY 2011 THAT EDUCATION CESS IS NOT TO BE DISALLOWED UNDER SECTIO N 40(A)(II) OF THE ACT AND DIRECT THE ASSESSING OFFICER TO GRANT NECESSARY RELIEF TO THE TAX PAYER IN THE LIGHT OF OUR FINDINGS IN THE SAID LATTER ASS ESSMENT YEAR. NECESSARY COMPUTATION SHALL BE FINALIZED AS PER LAW. THE ASSE SSEES FORMER MISCELLANEOUS APPLICATION 89/KOL/2020 IS ALLOWED IN ABOVE TERMS. 5. THESE TWO ASSESSEES MISCELLANEOUS APPLICATIONS 89 & 90/KOL/2020 ARE ALLOWED IN THE ABOVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 25, 2020. SD/- SD/- (J. SUDHAKAR REDDY) (SATBEER SINGH GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA, THE 25 TH DAY OF NOVEMBER, 2020 M.A. NO. 89/KOL/2020 (IN ITA NO. 404/KOL/2015) ASSESSMENT YEAR : 2010-2011 & M.A. NO. 90/KOL/2020 (IN ITA NO. 625/KOL/2016) ASSESSMENT YEAR: 2011-2012 RECKITT BENCKISER (INDIA) PVT. LIMITED 4 COPIES TO : (1) RECKITT BENCKISER (INDIA) PRIVATE LIMITED, INFINITY LAGOON, 12 TH FLOOR, UNIT-1201, PLOT NO. E2-2/1, BLOCK-EP-GP, SALT LAKE, SECTOR V, KOLKATA-700091 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-12(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATA ; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.
