9911796707
TMI Blog2014 (4) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... e as well as in law, the ld.CIT(Appeals) has erred in deleting the demand raised u/s 201(1)/201(1A) of the IT Act, 1961 giving the finding that the A.O. has accepted the plea that section 194C of the IT Act, 1961 is not applicable in the case of the assessee. 2. On the facts and in the circumstances of the case as well as in law, the ld.CIT(Appeals) has erred in observing that section 172 of the IT Act, 1961 is applicable in the case of the assessee. 3. On the facts and in the circumstances of the case as well as in law, the ld.CIT(Appeals) has erred in allowing relief to the assessee by relying upon the CBDT circulars No.723 dated 19.09.1995 and 732 dated 20.12.1995. 4. On the facts and in the circumstances of the case as well as in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer has accepted the plea of the assessee that Section 194C is not applicable in the case of the appellant and only Section 172 is applicable. This finding recorded by the learned CIT(A) is contrary to the finding of the Assessing Officer. She, therefore, submitted that the order of learned CIT(A) should be reversed and that of the Assessing Officer should be restored. 4. Learned counsel for the assessee, on the other hand, argued at length. She stated that before the Assessing Officer as well as before the CIT(A), the assessee explained that in respect of all foreign shipping companies, Section 172 is applicable and the foreign shipping companies are required to make the payment of tax as per Section 172 which is a self-contained code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, without payment, ship cannot move. There is no provision u/s 197 to obtain a low or no deduction for TDS u/s 172. Ld.ACIT, TDS has not applied the correct law. Respectfully following the Circular No.723 dated 19.09.1995 and Circular No.732 dated 20.12.1995 and also following the case law mentioned by the AR of the appellant, I am of the view that in the case of appellant tax deducted at source is not applicable for the payment made to the shipping companies or their agents. In view of these facts the order of the ACIT, TDS treating the assessee in deemed to be in default u/s 201(1)/201(1A) for Rs.12,31,450/- (TDS Rs.12,09,205/- + interest Rs.22,245/-_ is hereby deleted." (emphasis by underlining supplied by us) 6. From the above, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Thus, the Assessing Officer has recorded a clear finding that the agents of non-resident shipping company with subsidiary in India are not covered by Section 172 and Section 194C would be applicable in respect of payment made to them. Therefore, it is evident that learned CIT(A) totally misunderstood the order of the Assessing Officer and proceeded with the presumption that as per Assessing Officer, Section 194C is not applicable in the case of the appellant. The learned counsel for the assessee stated that even if some incorrect finding is recorded by the CIT(A), it will not affect the outcome of the appeal because, when, in law, Section 172 is applicable and the shipping companies have paid the tax as per Section 172, there is no requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 172 and this finding remained uncontroverted before the ITAT. No such confirmations were produced in the case under appeal before us either before the Assessing Officer or before the learned CIT(A) or before us. However, considering the totality of the facts and arguments of both the sides, in our opinion, it would meet the ends of justice if the matter is set aside to the file of learned CIT(A) because he has based his finding on wrong appreciation of the order of the Assessing Officer. We, therefore, set aside the order of learned CIT(A) and restore the matter to his file for readjudication afresh in accordance with law. The learned CIT(A) will allow adequate opportunity of being heard to both the parties and thereafter readjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
