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TMI Blog2016 (10) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... First we shall take the appeal in ITA Nos. 862 to 864/Mum/2014 relating to the assessment year 2007-08 to 2009-10 2. We find from the orders of authorities below that the tax effect involved in the above referred cases is below the monetary limit (Rs. 10,00,000/-) prescribed by the Central Board of Director Taxes(CBDT), vide its Circular No.21/2015(F.No.l42/2007-ITJ (Pt.) dated 10th December, 2015. 3. Shri Jeevraj P Jain and Bipin J Jain Shah appeared on behalf of the assessee. The Departmental Representative (DR) on a query by the Bench fairly conceded that the tax effect involved in the above cases is less than Rs. 10.00 lacs. Considering these facts, we dismiss these appeals holding it as not maintainable u/s. 268A of the Act. Now, we shall take the appeal bearing ITA No.902/Mum/2014 relating to assessment year 2005-06. 4. Grounds of appeal raised in this appeal read as under: "1. Learned CIT(A) 13 erred in not giving speaking order with regards to calculating T.D.S. Demand on Deemed Service Tax added by Assessing Officer. Appellant prays that since Appellant maintain accounts on payment basis, hence question of T.DS on deemed ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as following the cash system of accounting and therefore the TDS was deducted and deposited on the basis of actual payment. During the course of survey proceedings, the AO noted that the assessee has made certain payments to M/s Concept Creator and M/s ARK Designs Pvt.Ltd on which the assessee was liable to pay service tax. However, the AO found that the assessee has deducted and deposited TDS on the amount of payment without taking into account services tax as was imposable on the said payments and accordingly calculated the short in fall TDS resulting from not considering the amount of service tax part on the said payment into account. Aggrieved by the order of the AO, the assessee carried the matter before the ld.CIT(A) who allowed the appeal of the assessee for statistical purposes by observing and holding as under : "4.2 Thus, appellant has submitted that the TDS liability reflected by AO is only on account of deemed service tax, as no service tax was charged by the party in their bill raised upon the appellant. I have considered the same and also gone through the order passed my AO subsequently u/s.154 of the Act. The balance demand of Rs. 31,980/- remains there due to serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the TDS was deductible on the service tax component if charged in the bills not otherwise. In our opinion, no TDS is required to be deducted as the assessee was following cash system of account and accordingly, grounds no.1,2 and 3 are allowed in favour of the assessee. The AO is directed to delete the demand raised against the assessee. 9. The issue raised in ground no.4. is against the confirmation of T.D.S. u/s 194C for payment made to Urvi Communication for telecasting short film on Air pollution and Noise Pollution in the public interest on Doordarshan. The AO during the course of survey proceedings found that the assessee has made payment to M/s Urvi Communication of Rs.1,10,200/- on 10.11.2004 and similar payment was made to Prop. Urvi Deshmukh for the purpose of telecasting short film on Doordarshan on Air Pollution and Noise Pollution on ETV and Sub-TV. The AO noted that the assessee has not deducted TDS u/s 194J of the Act on these payments as required to be deducted for rendering the technical services and accordingly raised the demand for non TDS u/s 194J. Aggrieved by the order of AO, the assessee carried the matter before the ld.CIT(A), who partly allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it has been charged up to the date of order. In principle I am in agreement with the appellant on the issue and hence AO is directed to ascertain that interest is charged up to the date of filing return by deductee" 13. We have considered the rival submissions and perused the material placed on record. It has been submitted by the ld. AR that the interest has been charged from 1.4.2004 i.e. from the first day of financial year to 31.3.2011 which was modified by the ld. CIT(A) to the date of filing of the return of income of deductees. The grievance of the assessee is that the ld.CIT(A) has not passed speaking order as to the starting date of charging of interest. We have perused the provisions of section 201(1) and 201(1A) of the Act which provide that interest has to be charged where a person fails to deduct the whole or any part of the tax or after deducting fails to pay such tax as required under the Act shall pay interest on the specified rate from the date on which the tax was deductible to the date on actual paid. For the sake of convenience and for better understanding the provisions of section 201(1A) are reproduced below: "201. [(1) ...... [(1A) Withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the appeal bearing ITA No.903/Mum/2014 relating to assessment year 2006-07. 14. Grounds of appeal taken by the assessee are read as under : "1. Learned CIT(A) 13 erred in not giving speaking order with regards to calculating T.D.S. Demand on Deemed Service Tax added by Assessing Officer. Appellant prays that since Appellant maintain accounts on payment basis, hence question of T.DS on deemed service tax do not arise and Appellant prays for deletion of same 2. Learned CIT{A} 13 erred in discussing but not giving specific speaking order for payment made to Envirotech Instruments Pvt. Ltd. amount to Rs. 444840/- for purchase of instruments, where CST is charged in bill hence not liable to TDS. Appellant prays to delete Demand of Rs. 25178/- levied u/s 194J as payments are for purchase of instruments not liable to T.D.S. 3. Learned CIT{A} 13 erred in not discussing and not passing specific speaking order for Advance payment made to Abhinav Natyadham Pratisthan of Rs. 200000/- and creating TDS Demand of Rs. 11320/- u/s 194J for payment on account of Grant for making documentary film for public awareness. Appellant prays to delete Demand of Rs. 11320/- as such payments are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has made payment of Rs. 4,44,840/- to Envirotech Instruments Pvt. Ltd. for supply of machines. The details and invoices were produced before the AO. The ld. AR submitted before us that out of the three bills of the said parties two bills pertinent to supply of machines and third one related to payment of advance amounting to Rs. 44480/- and submitted that this was for sale of goods to the assessee which was supported by the bills and vouchers of the sale and therefore the TDS was not required to be deducted. After perusing the order of ld.CIT(A) ,we find that the FAA has not given any specific findings on this issue. Therefore, we are of the considered opinion, it would meet ends of justice if the issue is restored to the file of ld. CIT(A) for passing speaking order after considering the facts and documents as submitted by the assessee during the re-appellate proceedings as per law. The issue is set aside to the file of ld.CIT(A). This ground is allowed for statistical purposes. 18. Ground No.3 is against the non-speaking order passed by the ld.CIT(A) where the TDS was deductible on payment made to Abhinav Natyadham Pratisthan as grant of Rs. 2,00,000/- for making d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.CIT(A). This ground is allowed for statistical purposes. 23. The issue raised in ground no.6 is identical to issue decided in ground No.5 in ITA No.902/Mum/2014 vide para 13 of this order which has been decided in favour of the assessee. Therefore following same reasoning , our decision in ITA No.902/Mum/2014 mutatis mutandis would apply to this ground as well. The AO is directed accordingly. Now, we shall take the appeal bearing ITA No.904/Mum/2014 relating to assessment year 2007-08. 24. Grounds of appeal taken by the assessee are as under : "1. Learned CIT(A) 13 erred in not giving speaking order with regards to calculating T.D.S. Demand on Deemed Service Tax added by Assessing Officer. Appellant prays that since Appellant maintain accounts on payment basis, hence question of T.DS on deemed service tax do not arise and Appellant prays for deletion of same 2. Learned CIT{A} 13 erred in confirming deduction of TDS u/s 194J instead of u/s 194C for payment made to Chemtrol Engineers Ltd on account of AMC of mobile monitoring vans and raising TDS demand of Rs. 17251/- appellant prays to delete demand of Rs. 17251/- as such services are liable to TDS u/s 194C being contract a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. In the third ground of appeal, the assessee has raised the issue regarding non passing of speaking order for charging interest u/s 201 up to date of order even though proof of filing return were submitted to AO. 29. An identical issue has been raised by the assessee in ITA No.902/Mum/2014 in ground no.5 and therefore, our decision in ITA No.902/Mum/2014 would ,mutatis mutandis, apply to this ground as well. The AO is directed accordingly. This ground is allowed. Now, we shall take the appeal bearing ITA No.905/Mum/2014 relating to assessment year 2008-09. 30. Grounds of appeal raised in this appeal are as under : "1. Learned CIT(A) 13 erred in not giving speaking order with regards to calculating T.D.S. Demand on Deemed Service Tax added by Assessing Officer. Appellant prays that since Appellant maintain accounts on payment basis, hence question of T.DS on deemed service tax do not arise and Appellant prays for deletion of same. 2. Learned CIT(A)13 erred in directly Assessing Officer to delete on Deemed Service Tax after verifying bill that no service tax is charged in bill of M/s. ARK Designs Pvt. Ltd.Appellant prays that Appellant follows payment (cash) system of Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53280/- paid to civil surgeon CRP Hospital, Kolhapur and calculated TDS Demand of Rs. 100807/- u/s 194J. As Advance payment is as financial Assistance for Bio medical Waste Treatment Plant, Appellant prays to delete demand of Rs. 100807/- as payment are as Financial Assistance not liable to TDS. 8. Learned CIT(A) 13 erred in not discussing and not passing speaking order with regard to Advance payment of Rs. 2923000/- to Executive, Jeevan Pradhikaran work and calculated TDS Demand of Rs. 331171/- u/s 194J. Appellant prays to delete Demand of Rs. 331171/- as Advance payment are for Financial Assistance for Affluent Treatment Plant, not liable to T.D.S. 9. Ld.CIT(A) 13 erred in not discussing and not passing speaking order with regard to Advance payment of Rs. 260000/- to SRO Solapur and calculated TDS Demand of Rs. 29458/- u/s 194J. Appellant prays to delete Demand of Rs. 29458/- as Advances are given to sub Regional Office of MPCB only, hence not liable to T.D.S .. 10. Learned CIT (A) 13 erred in not giving speaking order for charging Interest u/s 201 up to date of order even though proof of filing Return were submitted to Assessing Officer. 31. The issue raised in the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged in bill of M/s ARK Designs Pvt.Ltd. Appellant prays that Appellant follows cash (payment) system of Accounting hence there is no question of T.D.S. on Deemed service tax. Appellant prays for deleting same. 3. Learned CIT(A) 13 erred in not giving speaking order with regard to Advances of Rs. 6377316/- given to M/s. Ashtech Infotech Pvt. Ltd. for IMIS Project Implementation and calculating TDS u/s 194J amounting to Rs. 561667/- Appellant prays that Advances are liable to TDS u/s 194C being composite contract and tax deducted u/s 194C Appellant prays to delete Demand of Rs. 561667/-. 4. Learned CIT(A)13 erred in not discussing and not giving speaking order with regard to Advance payment of Rs. 3292721/- given to P.K. Enterprises and calculating T.D.S.Demand of Rs. 2880i17- u/s 194 J. Appellant prays that Advances are against composite contract for furniture & fixtures (cess fund) for infrastructure for housing new equipment and furnishing work being liable to TDS u/s 194C and tax deducted u/s 194C Appellant prays to delete demand of Rs. 288021/-. 5. Learned CIT(A) 13 erred in not discussing and not giving speaking order with regard to Advance payment of Rs. 3501704/- gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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