TMI Blog2016 (10) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... e Pollution on ETV and Sub-TV at the time of Deewali. The ld. AR submitted that the payment was made for telecasting short film on Doordarshan and no TDS was required to be deducted at all and prayed that the order of the ld.CIT(A) be set aside on this issue and the ground raised by the assessee be allowed by allowing the appeal of the assessee. On the contrary, the ld.DR heavily relied on the orders of authorities below. We find that the payment is made through intermediary for further making payment to Doordarshan and therefore we are in agreement with the findings recorded by the ld. CIT(A) that the payment made to these parties were of the nature of contractual and the TDS was to be deducted u/s 194C of the Act - Decided against assessee Charging Interest u/s 201 - Held that:- After going through the provisions of section 201(1A), we find some merit in the argument of the ld. AR that the interest was not to be charged from the beginning of the financial year the argument of the ld.AR that the same was to be charged from the date of assessment year is not convincing. It has been clearly provided in the section that interest has to be calculated from the date on which the TDS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e directed against the five separate orders passed by the ld.CIT(A)-13, Mumbai dated 28.11.2013 and 6.12.2013 respectively. Since, the appeals before us relate to the same assessee, therefore, for the sake of convenience, they are clubbed together, heard together and disposed of in this consolidated order. 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 ₹ 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 ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order u/s 154 of the Act passed by the AO on 22.3.2012 rectifying the mistakes by which tax demand was reduced to ₹ 3,56,394/-. 6. Ground Nos.1,2 and 3 raised by the assessee are against the confirmation of demand raised on account of non deduction of tax at source by disregarding the fact that the assessee was 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... system of accounting followed by the assessee we find that the assessee has rightly deduced TDS on payment basis without taking into consideration the service tax and the AO, in our opinion, was not correct in applying deemed service tax on the payment made. Similarly, the ld.CIT(A) has also erred in holding that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the return of income of the deductees by considering the various proof and details filed by the assessee by observing as under : 9. By taking ground no.10 appellant agitated that interest has been charged only up to the date of filing return by deductee which they say have furnished before AO, whereas 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eductees. Accordingly, we direct the AO to charge interest from the date on which the TDS was deductible to the date of filing of return of income of the deductees. The order of the ld.CIT(A) is set aside and the AO is directed accordingly. The ground taken by the assessee is partly allowed. Now, we shall take 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 ₹ 444840/- for purchase of instruments, where CST is charged in bill hence not liable to TDS. Appellant prays to delete Demand of ₹ 25178/- levied u/s 194J as payments are for purchase of instruments not liable to T.D.S. 3. Learned CIT{A} 13 erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed TDS u/s 194J on an amount of ₹ 4,44,840/- which comprises of three bills for supply of RDHBS Machines and accordingly, raised a liability of TDS of ₹ 25,178/-. During the appellant proceedings, the ld. CIT(A) did not give any specific finding for deduction of TDS and hence the assessee is in appeal before us. 17. After hearing both the parties, we find that the assessee has made payment of ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2768/- u/s 194J. 22. We find that the ld.CIT(A) has not passed a speaking order on this issue, therefore, we are of view that 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Chemtrol Engineers Ltd providing services for installation of quality monitoring system and operation and maintenance and installation of machinery and maintenance of contracts are covered by the provision of section 194C of the Act. Accordingly, we set aside the order of ld. CIT(A) on this issue by holding that the section 194C is applicable in this case and not 194J. The AO is directed accordingly and this ground is allowed. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibition stall Booking 579240 Booking Amt. for stall booking c 1.3.2007 Shivaji University 84833 Financial assistance for punch Ganga river report d 26.3.2007 B.B.Nimarte for CRISIL Adv 622400 Payment to staff for CRISIL Appellant prays that since payment do not relate to year in Appeal and pertains to earlier year, Appellant prays for deletion of TDS Demand of ₹ 202407/- on above advances u/s 194J. 7. Learned CIT(A) 13 erred in not discussing and not passing speaking order with regard to Advance payment of ₹ 953280/- paid to civil surgeon CRP Hospital, Kolhapur and calculated TDS Demand of ₹ 100807/- u/s 194J. As Advance payment is as financial Assistance for Bio medical Waste Treatment Plant, Appellant prays to delete demand of ₹ 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 ₹ 2923000/- to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 vide para 13 of this order and therefore, our decision in ITA No.902/Mum/2014 would mutatis mutandis apply to this ground as well. The AO is directed accordingly. Now, we shall take the appeal bearing ITA No.906/Mum/2014 relating to assessment year 2009-10. 36. Grounds of appeal taken by the assessee 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.D.S. on Deemed service tax do not arise and Appellant prays for deletion of same. 2. Learned CIT(A) 13 erred in directing Assessing Officer to delete T.D.5. liability 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 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 ₹ 6377316/- given to M/s. Ashtech Infotech Pvt. Ltd. for IMIS Project Imple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Demand of ₹ 47586/- as Advances to employee are not liable to T.D.5. 9. Learned ClT(A) 13 erred in not discussing and not giving speaking order with regard to Advance payment to Trio service and calculated TDS Demand u/s 194J of ₹ 4899/- Appellant prays to delete Demand as Advance are below limit not liable to TDS. 10. Learned ClT(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 by deductee where proof of filing return by deductee are submitted. 0-discussing and not giving speaking order with regard. . 37. Ground of 1 2 are identical to that of Grounds of appeal No.1 ,2 and 3 taken in ITA No.902/Mum/2014. Therefore, following the same reasoning , our decision in ITA No.902/Mum/2014 th in para 7 and 8 , would mutatis mutanids, apply to ground no 1 2 of this appeal as well. The grounds 1 2 are allowed and AO is directed accordingly. 38. Issues raised in grounds of appeal No.3,4,5, 6,7,8 and 9 have not been decided by the ld.CIT(A) by passing speaking order and therefore, we set aside the issues to the file of the ld.CIT(A) and direct him to decide these issues afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
