Birla Corporation Limited, SATNA V. ACIT(TDS), Jabalpur

SA 9/JAB/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1099 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K UPADHYAYA
• Assessee Lawyers: AP SRIVASTAVA
• Keywords: Application of stay; Non-deduction of tax; TDS
• Section: 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER S.A. NO. 08 & 09/JAB./2013 (IN ITA NO.251 & 252/JAB./2013) ASST. YEAR : 2010-11 & 2011-12 BIRLA CORPORATION LIMITED, VS. A.C.I.T. (TDS), SATNA. JABALPUR. (PAN-AABCB 2075 J) (APPELLANT) (RESPONDENT) APPELLANT BY :SH SAPAN USRETHE & SH. A.P. SRIVASTA VA, SR. ADV. RESPONDENT BY :SHRI K.K. UPADHYAYA, D.R. DATE OF HEARING : 24.03.2014 DATE OF PRONOUNCEMENT : 27 .03.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF BOTH THE STAY APPLICA TIONS FILED BY THE ASSESSEE FOR THE ABOVE ASSESSMENT YEARS. 2. IN ASSESSMENT YEAR 2010-11, THE ASSESSEE PRAYED FOR STAY OF THE OUTSTANDING DEMAND OF RS.55,54,630/- & IN ASSESSMENT YEAR 2011- 12, THE ASSESSEE SIMILARLY PRAYED FOR STAY OF OUTSTANDING DEMAND OF RS.8,54,08 ,460/-. S.A. NO.08 & 09/JAB./2013 2 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE STAY APPLICATIONS HAVE BEEN FILED TO STAY THE OUTSTANDING DEMAND RAISED FO R NON-DEDUCTION OF TAX ON PURCHASE OF MACHINERY FROM NON-RESIDENTS BY TREATIN G IT AS A COMPOSITE CONTRACT WHEREAS IT WAS PURE PURCHASE OF MACHINERY ETC., ON WHICH THE CUSTOM DUTY WAS PAID. HE HAS SUBMITTED THAT THE LD. CIT(A) DISMISSE D THE APPEAL OF THE ASSESSEE AND SAID ADDITION WAS CONFIRMED. THEREFORE, THE APPEALS OF THE ASSESSEE ARE PENDING BEFORE THE TRIBUNAL. HE HAS SUBMITTED THAT IN ASSES SMENT YEAR 2010-11, THE AO RAISED THE DEMAND WITH INTEREST IN A SUM OF RS.1,90 ,54,630/- UNDER SECTION 201(1) & 201(1A) OF THE IT ACT. HE HAS REFERRED TO PB 23, ON WHICH THE DETAILS OF EQUIPMENTS/ MATERIAL PURCHASED FROM FOREIGN SUPPLIE RS HAVE BEEN MENTIONED TO SHOW THAT NATURE OF PAYMENTS MADE TO THE NON-RESIDE NTS WERE FOR ADVANCE FOR PURCHASE. AT PAGE 25 OF THE PAPER BOOK, THE AMOUNTS PAID IN INSTALLMENTS TO THE REVENUE DEPARTMENT HAVE BEEN MENTIONED IN A SUM OF RS.1,45,00,000/- AND THE BALANCE DEMAND LEFT IS RS.45,54,630/- AND AFTER ADD ING THE DEMAND PENDING FOR RECTIFICATION IN A SUM OF RS.6,57,150/-, THE TOTAL DEMAND OUTSTANDING ULTIMATELY LEFT IS RS.52,11,780/-. HE HAS SUBMITTED THAT THE AO HAS STATED THAT THE PURCHASES WERE MADE AS COMPOSITE CONTRACT AND RAISED THE DEMAND FO R NON-DEDUCTION OF TDS, THOUGH IN THE CASE OF ASSESSEE, THE TDS PROVISIONS ARE NOT APPLICABLE. S.A. NO.08 & 09/JAB./2013 3 4. SIMILARLY, IN THE ASSESSMENT YEAR 2011-12, SUMMA RY OF THE PURCHASES HAVE BEEN FILED AT PAGE 24 AND DETAILS OF THE DEMAND RAI SED WAS RS.10,84,08,460/- (DETAILS FILED AT PAGE 44 OF THE PAPER BOOK), IN WH ICH IT IS ALSO HIGHLIGHTED THAT THE ASSESSEE HAS PAID INSTALLMENTS AGAINST THE OUTSTAND ING DEMAND IN A SUM OF RS.2,65,00,000/- AND BALANCE DEMAND OUTSTANDING WAS RS.8,19,08,460/- AND AFTER ADDING THE DEMAND PENDING FOR RECTIFICATION IN A SU M OF RS.32,64,730/-, THE TOTAL OUTSTANDING DEMAND ARISES AT RS.8,51,73,190/-. THE LD. COUNSEL FOR THE ASSESSEE SIMILARLY SUBMITTED THAT IN THIS YEAR ALSO, THE ASS ESSEE HAD PURCHASED PLANTS AND MACHINERY ETC., DETAILS OF WHICH HAVE BEEN HIGHLIGH TED TO SHOW THAT IT WAS NOT COMPOSITE CONTRACT AND CUSTOM DUTY HAS BEEN PAID ON THE PURCHASES, UPON WHICH TDS PROVISIONS ARE NOT APPLICABLE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS A PRIMA FACIE CASE FOR GRANT OF ABSOLUTE STAY TILL THE DECISION OF THE APPEALS PENDING BEFORE THE TRIBUNAL AND ALSO SUBMIT TED THAT SUBSTANTIAL DEMAND HAS ALREADY BEEN PAID BY THE ASSESSEE AND TO PROTEC T THE INTEREST OF REVENUE, THE ASSESSEE IS WILLING TO PAY FURTHER RS.50,00,000/- T O THE REVENUE DEPARTMENT AND FOR THE BALANCE OUTSTANDING AMOUNT IN BOTH THE YEARS, T HE ASSESSEE IS WILLING TO FURNISH THE BANK GUARANTEE TO THE SATISFACTION OF THE REVEN UE DEPARTMENT. HE HAS, THEREFORE, SUBMITTED THAT OUTSTANDING DEMAND IN BOT H THE ASSESSMENT YEARS MAY BE STAYED. ON THE OTHER HAND, THE LD. DR SUBMITTED THA T PROVISIONS OF TDS ARE APPLICABLE IN THE CASE OF ASSESSEE AND IF THE ASSES SEE IS ABLE TO FURNISH BANK S.A. NO.08 & 09/JAB./2013 4 GUARANTEE, WOULD MEAN THAT THE ASSESSEE HAS NO FINA NCIAL DIFFICULTY TO PAY THE REMAINING OUTSTANDING DEMAND. THEREFORE, BOTH THE S TAY APPLICATIONS MAY BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. THE ISSUE FOR CONSIDERATION BEFORE THE TRIB UNAL IS WHETHER TDS PROVISIONS ARE APPLICABLE TO FASTEN LIABILITY UPON THE ASSESSE E U/S 201(1)/201(1A) OF THE IT ACT. THE REVENUE AUTHORITIES HAVE TAKEN VIEW AGAINS T THE ASSESSEE AND THE ASSESSEE WAS HELD TO BE IN DEFAULT AND WAS REQUIRED TO PAY THE AMOUNTS IN QUESTION IN BOTH THE ASSESSMENT YEARS. THE ASSESSEE IN ASSES SMENT YEAR 2010-11 HAS ALREADY PAID SUBSTANTIAL AMOUNT TO THE REVENUE DEPARTMENT A GAINST THE OUTSTANDING DEMAND AND SIMILARLY IN ASSESSMENT YEAR 2011-12, THE ASSES SEE HAS ALSO PAID MORE THAN 20% OF THE OUTSTAND DEMAND. THE ISSUE OF APPLICABIL ITY OF TDS PROVISIONS IS PENDING FOR ADJUDICATION AND ASSESSEE HAS ARGUABLE CASE. THEREFORE, WITHOUT COMMENTING UPON THE MERITS OF THE CASE, WE ARE OF T HE VIEW THAT THE ASSESSEE HAS A PRIMA FACIE CASE FOR GRANT OF STAY AGAINST OUTSTAND ING DEMANDS PENDING APPEALS IN BOTH THE ASSESSMENT YEARS SUBJECT TO CERTAIN CONDIT IONS TO PROTECT THE INTEREST OF REVENUE FOR A PERIOD OF SIX MONTHS OR DISPOSAL OF A PPEALS WHICHEVER EXPIRES EARLIER. THE BALANCE OF CONVENIENCE ALSO LIES IN FAVOUR OF A SSESSEE. CONSIDERING THE ABOVE DISCUSSION, THE RECOVERY OF OUTSTANDING DEMAND IN B OTH THE ASSESSMENT YEARS ARE S.A. NO.08 & 09/JAB./2013 5 STAYED FOR A PERIOD OF SIX MONTHS OR TILL DISPOSAL OF APPEALS WHICHEVER EXPIRES EARLIER SUBJECT TO THE CONDITION THAT IN ASSESSMENT YEAR 2011-12, THE ASSESSEE SHALL MAKE FURTHER PAYMENT OF RS.1.00 CRORE IN TWO EQUAL INSTALLMENTS OF RS.50 LACS EACH WITH THE DIRECTION TO MAKE PAYMENT OF FIRST INSTALL MENT BY 15 TH APRIL, 2014 AND SECOND INSTALLMENT BY 15 TH MAY, 2014. THE OFFICE IS DIRECTED TO FIX BOTH THE APPEALS FOR HEARING ON MERITS ON OUT OF TURN BASIS AND BOTH THE APPEALS SHALL BE LISTED FOR HEARING AS AND WHEN ITAT, JABALPUR BENCH WOULD BE F UNCTIONING NEXT, WITH DUE NOTICE TO BOTH THE PARTIES. THE ASSESSEE SHALL NOT SEEK UNNECESSARY ADJOURNMENT IN THE MATTER. THE PAPER BOOK, IF ANY, BE FILED WITHIN ONE MONTH FROM THE DATE OF THE ORDER WITH ADVANCE COPY TO THE REVENUE DEPARTMENT. 6. IN THE RESULT, BOTH THE STAY APPLICATIONS ARE AL LOWED AS DIRECTED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (T.S. KAPOOR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, JABALPUR 6. GUARD FILE SR. PRIVATE SECRETARY ITAT, CAMP AT JABALPUR TRUE COPY