TMI Blog2018 (6) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... A For The Respondent : Sh. S. R. Senapati, Sr. DR ORDER PER BENCH These appeals are filed by the assessee against the order dated 27/10/2015 passed by CIT(A)-1, Noida for A.Ys. 2013-14 and 2014-15. 2. The grounds of appeal are as under:- The appellant, being aggrieved against the order of learned Commissioner of Income tax (Appeals) 1, Noida [hereinafter the learned CIT(A)] upholding order u/s 201(1) and 201(1 A) for short deduction of TDS u/s 194A plus interest demand of ₹ 1,78,945/- presents this appeal on following amongst other grounds without prejudice to one another: 1.1 It is submitted that the appellant has not committed default within the meaning of section 201(1) and section 201(1 A) on facts and law of the case and the order deserves to be cancelled. 1.2 The order passed u/s 201 (1J/201 (1 A) by Additional CIT (TDS), Ghaziabad is without jurisdiction, as the appellant is centrally registered for all TDS compliances and holds centralised TANs (for its Central office, Registered office, all India branches/offices) with Mumbai TDS Range. 2.1 It is submitted that the payees are statutory body constituted under Uttar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the decision of High Court in one case, it is not open to revenue to challenge the identical matter in different taxpayer's case. The Revenue must be consistent and it cannot differentiate between taxpayers. Recently Bombay High Court in the case of CIT v Vijay G Patil [2015 (11) TMI 868 (Bom)] applied the SC ratio to a fact pattern where Tax Department had accepted the decision of the Tribunal in one case whereas in identical matter of another assessee, Tax Department appealed against order of Tribunal. Bombay HC held that ratio of SC which was rendered in the context of High court decision will apply in the context of jurisdictional ITAT order. In fact, ratio of these ruling should apply with more force in our case, as order of CIT(A) in our own case has been accepted by the Tax Department. 2.3. It is submitted that ( a) (a) TDS provision is tax collection machinery, is not charging section, is subordinate to charge of tax u/s 4 r.w.s. 5. The Department is not justified, in the peculiar circumstances, effectively shifting charge of tax on the payer bank, when the payee authorities are State Government statutory bodies and holding PAN. The payees in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, they should have applied to the A.O. for a certificate under section 197 for lower deduction of tax and provided it to the banks. The assessee has not produced any certificate under section 197 to support NIL deduction of TDS on interest. The Assessing Officer further observed that Noida Authority/Greater Noida Authority are not covered under the exemption u/s 194A(3)(iii)(f) of the Income Tax Act, 1961. Thus, the Assessing Officer held that the exemption is allowable to only such corporation established by a State, Central or provincial Act and not under such Acts. Hence, CBDT notification No. S.O. 3489 dated 22.10,1970 is not applicable in the present case. The Assessing Officer further held that the assessee itself admitted that Noida Authority/Greater Noida Authority are formed under U.P. Industrial Area Development Act, 1976 passed by the State Govt. Thus the Assessing Officer held that Noida Authority does not fall under any exemption clause nor Noida Authority is a local Authority as has been held by the Allahabad High Court dated 28.02.2011. Hence, TDS provisions are applicable in the case of Noida Authority. Unless a certificate u/s 197 from the department is produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty fall in exempted category provided in Section 194A(3)(iii)(f) of the Act covered vide notification No. CBDT SO No. 3489 dated 22/10/1970; as both the above authorities are Corporation established by State Act namely U.P. Industrial Area Development Act, 1976. The Ld. AR submitted that the said matter is already examined in much details by the Tribunal, Delhi in numerous appeals as cited hereunder, wherein it is categorically held that above authorities fall in exempted category provided in section 194A(3)(iii)(f), covered vide notification No. CBDT SO No. 3489 dated 22/10/1970:- S. No. ITA No. Order dated Appellant/Respondent 1 1359/Del/2014 07/08/2015 Add. CIT(TDS) Vs. Canara Bank 2 1360 1362/Del/2014 07/08/2015 Add. CIT(TDS) Vs. Canara Bank 3 1361/Del/2014 07/08/2015 Add. CIT(TDS) Vs. Canara Bank 4 1351 to 1353/del/2014 07/08/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed by the decision of the Jurisdictional High Court i.e. Allahabad High Court in case of Canara Bank. Therefore, the appeal of the assessee be allowed. 6. We have heard both the parties and perused the material available on record. This issue is squarely covered by the decision of the Hon ble Allahabad High Court in case of CIT Vs. Canara Bank 2016 386 ITR 504 (All) wherein the Hon ble High Court is held as under:- 41. We have, therefore, no manner of doubt from a reading of the provisions of the Industrial Area Development Act that the Noida has been constituted by the State Act and, therefore, entitled to exemption of payment of tax at source under section 194A(1) of the Act. 42. The decision of the Division Bench of this court in New Okhla Industrial Development Authority (supra), on which reliance has been placed by learned counsel for the appellants, would, therefore, not come to the aid of the appellants as it was restricted to the issue as to whether Noida would be a local authority or not and did not deal with the issue involved in this appeal as to whether the Noida is a Corporation established by a State Act. 43. We, therefore, answer the question ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
