TMI Blog2012 (10) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount accordingly. No doubt, if the person (payer) who had to make payments to the non-resident had defaulted in deducting the tax at source from such payments, the non-resident is not absolved from payment of taxes thereupon. However, in such a case, the non-resident it liable to pay tax and the question of payment of advance tax would not arise. This would be clear from the reading of Sec 191 along with Sec. 209 (1) (d). Therefore, it would not be permissible for the revenue to charge any interest u/s 234 B. In favour of assessee - IT Appeal No. 4054 (Delhi) of 2011 - - - Dated:- 24-8-2012 - G.D. Agrawal And I.C. Sudhir, JJ. Sunil Gautam for the Appellant. Pawan Kumar for the Respondent. ORDER I.C. Sudhir, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x. 3. A survey u/s 133 A of the Act was carried out on 22.2.2009 at the office premises of Alcatel Lucent India Ltd. (including its predecessors) located at New Delhi and Gurgaon. Based upon the documents found, statement recorded during and after the survey and subsequent discussions, it was held in the assessment order of Alcatel Lucent France, for assessment year 2006-07 that various Alcatel Lucent Overseas entities including the assessee had a permanent establishment (PE) in India. Subsequently, a notice u/s 148 of the Act was issued upon the assessee. In response the assessee filed a return of income declaring "Nil" income. Based upon the findings made in the assessment order in the case of Alcatel Lucent France, for the assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld make it clear that the Act makes assessee responsible for estimation of its current income and also for payment of advance tax. He submitted that the assessee have not filed regular return of income and the assessment order has been passed pursuant to notice u/s 148 after recording the reasons. He submitted that Section 195 of the Act puts an obligation on the payer that any person responsible for paying to a non-resident to deduct income tax at source at the sake in force. Once it is found that the liability was that of payer and the said payer has defaulted in taking the tax at source the department is having no option but to take action under the provision of Section 201 of the Act. He submitted that on the one hand assessee at the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porated/Mitsubishi Corpn. (supra) (ii) Motorola Inc. v. Dy. CIT [2005] 95 ITD 269 (iii) Samsung Heavy Industries Co. Ltd. v. Asstt. DIT [2011] 133 ITD 413 (iv) CIT v. Sedco Forex International Drilling Co. Ltd. [2003] 264 ITR 320 (v) Mitsui Engg. Ship Building Co. Ltd. v. Asstt. CIT [2001] 79 ITD 481 (Delhi) (vi) Dy. CIT v. Metapath Software International Ltd. [2006] 9 SOT 305 (Delhi). (vii) Dy. CIT v. Pride Foramer SAS [2008] 24 SOT 59 (Delhi) 7. After considering the above submissions in view of the orders of the authorities below and the decisions relied upon, there is no dispute that combined reading of the provisions of Section 209(1)(d) with the provisions of Section 234B of the Act makes it clear that the liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayer i.e. any person responsible for paying any tax at source at the rates in force from such payments and if payer has defaulted in deducting tax at source, the department can take action against the payer under the provisions of Section 201. In such a case, the non-resident is liable to pay tax but there is no question of payment of advance tax and therefore, it cannot be held liable to pay interest u/s 234B on account of default of the payer in deducting tax at source from the payments made to the appellant. The contents of para no. 9 of the said decisions of Hon'ble Delhi High Court are being reproduced hereunder for a ready reference: "This clause categorically uses the expression "deductible or collectible at source" and it is this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading of section 191 of the Act along with section 209 (1) (d) of the Act. For this reason, it would not be permissible for the revenue to charge any interest under section 234 B of the Act." Respectfully following the above decision of Hon'ble Jurisdictional High Court in the case of Jacabs Civil Incorporated/Mitsubishi Corpn. (Supra) the Ld. CIT (A) has deleted the interest charged u/s 234 B in question. Since the issue raised in the ground of the present appeal is squarely covered by the decision of Hon'ble Jurisdictional High Court in the case of Jacabs Civil Incorporated/Mitsubishi Corpn. (Supra) followed by the Ld. CIT (A), we do not find infirmity in the first appellate order in this regard. The same is affirmed. The ground is acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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