TMI Blog2013 (11) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ide proceedings is merely calculation of the tax for which the respondent can be treated as an “Assessee in default” - provisions of section 251(1)(a) of the Act are not attracted and in any event, the directions given by the CIT(A) cannot be equated with an order setting aside the assessment and referring the case back to the AO for making fresh assessment - Decided against Revenue. - ITA Nos.1266 to 1271/Bang/2011 & 1475 to 1486/Bang/2012 - - - Dated:- 19-4-2013 - N Barathvaja Sankar and N V Vasudevan,JJ. For the Appellant : Shri A Sundararajan, Jt. CIT(DR) For the Respondent : Shri T K Vedamurthy, Adv. ORDER:- Per: Bench: These are appeals by the revenue. These appeals arise for consideration before the Tribunal under the following facts and circumstances. 2. The respondent-assessee in these appeals is a statutory authority constituted under the Indian Electricity Act, 1910 ( Electricity Act, 2003) and Indian Electricity Rules, 1956, apart from the State Act Rules such as Karnataka Electricity (Compensation Consumption) Act, 1959, Karnataka Licensing Rules, 1976, Karnataka Cinema Act and Rules, 1976, etc. The nature and object of the respondent is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19,44,704 12,05,716 31,50,420 2005-06 23,62,602 11,81,301 35,43,903 2006-07 24,63,412 9,36,096 33,99,509 2007-08 29,19,426 7,59,091 36,78,477 2008-09 60,77,753 8,50,885 69,28,638 5. Aggrieved by the orders passed by the AO, the assessee preferred appeals before the CIT(Appeals). The CIT(Appeals) confirmed the order of the AO regarding applicability of the provisions of section 194H. 6. One of the plea put forth by the respondent before the CIT(A) was that the recipients of the rebate had filed returns of income disclosing the receipts from the assessee and paid taxes thereon and to the extent the taxes were paid by the recipients, the assessee should not be treated as an assessee in default . The assessee also prayed that the levy of interest to the extent payments on taxes were made by the recipients should be deleted. On the above plea put forth by the assessee, the CIT(A) held as follows:- 3.8 However, the appellant has also pointed out that in most cases the payees have accounted for the receipts in their books of account and paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 475 to 1486/Bang/2012. In view of the above, ITA Nos.1246 to 1271/Bang/2011 are considered as superfluous and dismissed. 8. Now we shall take up for consideration the appeals in ITA Nos. 1475 to 1486/Bang/2012. The common grounds of appeal raised by the revenue in all these appeals read thus:- 1. The CIT(A) has erred in not following the principles laid down in Mahindra Mahindra vs. DCIT (ITAT Mumbai Special Bench) ITAT, MUMBAI SPECIAL BENCH H , MUMBAI Mahindra Mahindra Ltd. v. DCIT ITA NOS. 2606, 2607, 2613 2614/MUM/2000 = (2009-TII-44-ITAT-MUM-SB-INTL) which relied on the judgement of the Hon ble Apex Court in the case of Income-tax Officer v. Delhi Development Authority 252 ITR 112 (SC) wherein it is held that orders u/s 201 are akin to assessment. 2. The CIT(A) has erred therefore in remitting the issue of computing interest u/s 201(lA) after examining the evidences to be produced which is in contravention of the provisions of section 251(1)(a) of the Act. 3. The CIT(A) has erred in holding that once tax is paid by the deductee, no tax liability fastens to the deductor. 4. The CIT(A) has erred in not appreciating the fact that the Explanation u/s 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act can be said to be an order of assessment so as to attract the provisions of section 251(1)(a) of the Act. To counter such objection, the revenue has raised ground No.1 and contended that the order passed u/s. 201(1) of the Act is akin to assessment and in this regard, reference has been made to the decision of the Special Bench of the ITAT Mumbai in the case of Mahindra Mahindra Ltd. v. DCIT 313 ITR 263 (Mum)(SB)(AT) = (2009-TII-44-ITAT-MUM-SB-INTL). We are of the view that the decision of the Special Bench in the case of Mahindra Mahindra Ltd. v. DCIT (supra), was rendered in the context of the time limit within which the order u/s. 201(1) has to be passed. There was no period of limitation prescribed in the Act and therefore a reference was made to the period of limitation for completing the assessments and that anology was sought to be applied to orders passed u/s. 201(1) of the Act also. That will not make the order u/s. 201(1) of the Act as an order of assessment so as to attract the provisions of section 251(1)(a) of the Act. The provisions of Sec.251 of the Act read as follows:- 251. Powers of the CIT(A)-(1) In disposing of an appeal, the CIT(A) shall have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question that ought to have been decided by the CIT(A) was as to whether rebate paid to the electricity distribution companies was Commission within the meaning of Sec.194H of the Act. That question has been answered by the CIT(A). The CIT(A) has also laid down the basis on which the quantum of money in respect of which the Assessee should be treated as an Assessee in default . What the AO has to do in the set aside proceedings is merely calculation of the tax for which the respondent can be treated as an Assessee in default . We are therefore of the view that the provisions of section 251(1)(a) of the Act are not attracted and in any event, the directions given by the CIT(A) cannot be equated with an order setting aside the assessment and referring the case back to the AO for making fresh assessment. 12. In the alternative, we are also of the view that the directions given by the CIT(Appeals) are appropriate and we direct the AO to treat the aforesaid direction as a direction given by the Tribunal. According to us, doing so will meet the ends of justice and avoid any technical objections being put forth by the revenue. 13. For the reasons given above, we do not find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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