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Gujarat High Court

The Commissioner Of Income Tax ... vs Adani Power Limited on 27 January, 2020

Author: J.B.Pardiwala

Bench: J.B.Pardiwala, Bhargav D. Karia

         C/TAXAP/13/2020                                           ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/TAX APPEAL NO. 13 of 2020

==========================================================
 THE COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION)
                         Versus
                  ADANI POWER LIMITED
==========================================================
Appearance:
MRS MAUNA M BHATT(174) for the Appellant(s) No. 1
for the Opponent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
        and
        HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 27/01/2020

                      ORAL ORDER

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. This Tax Appeal is at the instance of the revenue. The revenue has proposed the following three substantial questions of law for the consideration of this Court.

[A] Whether the Appellate Tribunal has erred in law and on facts of the case in coming to the conclusion that Section 206AA of IT Act does not override the provision of Section 90(2) of the Act, despite the fact that Sec.206AA starts with a non­obstante clause?

[B] Whether the Appellate Tribunal has erred in law and on facts of the case in ignoring the memorandum explaining the provisions of the Finance (No.2) Bill, 2009 which clearly states that the Sec.206AA of IT Act applied to Non­Residents and also Press Release of CBDT No.402/92/2006­MC(04 of 2010) dated 20/01/2010 which reiterates that Section 206AA of the Act will also apply to all non­ residents in respect of payments/remittances liable to TDS where PAN is not provided to the deductor?

[C] Whether the Appellate Tribunal has erred in law and on facts in concluding that Section 206AA of the IT Act, 1961 which provides a Page 1 of 2 Downloaded on : Mon Jan 27 22:23:28 IST 2020 C/TAXAP/13/2020 ORDER higher tax @ 20% in the event of foreign entity not obtaining the Permanent Account Number in India cannot be pressed into service to impose obligation on the Non­residents to obtain PAN?

2. We are inclined to admit this tax appeal on question No.2[A]. The same reads thus:­ 2[A] Whether the Appellate Tribunal has erred in law and on facts of the case in coming to the conclusion that Section 206AA of IT Act does not override the provision of Section 90(2) of the Act, despite the fact that Sec.206AA starts with a non­obstante clause?

3. The other two questions as proposed would stand covered in the first question as proposed by the revenue is concerned.

To be heard with the Tax Appeal No.1044 of 2018.

(J. B. PARDIWALA, J) (BHARGAV D. KARIA, J) aruna Page 2 of 2 Downloaded on : Mon Jan 27 22:23:28 IST 2020