Income Tax Appellate Tribunal - Delhi
M/S. Samsung India Electronics Pvt. ... vs Acit (Tds), New Delhi on 13 March, 2018
1 ITA No. 2496/Del/2015
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'F' NEW DELHI
BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
I.T.A .No. 2496/DEL/2015
(ASSESSMENT YEAR-2007-08)
Samsung India Electronics Pvt. Ltd. Vs ACIT (TDS)
3rd Floor, Tower-C, Circle-51(1)
Vipul Tech Square, New Delhi
Golf Course Road, Sector 43
Gurgaon
AAACS5123K (RESPONDENT)
(APPELLANT)
Appellant by Sh. Gaurav Jain, Adv & Sh.
Deepesh Jain, CA
Respondent by Sh. Atiq Ahmad, Sr. DR
Date of Hearing 27.12.2017
Date of Pronouncement 13.03.2018
ORDER
PER SUCHITRA KAMBLE, JM
This appeal has been filed by the assessee against the order dated 24/02/2015 passed by CIT(A)- 41, New Delhi for Assessment Year 2011-12.
2. The grounds of appeal are as under:-
"1. That the CIT(A) erred in confirming the action of the assessing officer in charging interest of Rs. 16,78,676/- under section 201(1A) of the Act in respect of amount of differential tax deducted at source deposited in relation to payments made to Samsung Data System India Pvt. Ltd. (SDSL).
2. That the CIT(A) erred on facts and in law in not appreciating that since the deductee did not have any liability to pay advance tax or self 1 2 ITA No. 2496/Del/2015 assessment tax for the relevant assessment year as the actual amount of TDS (excluding TDS deducted by the appellant) exceeded the tax payable by it on its total income, no interest was leviable under section 201(1A) of the Act.
2.1 That the CIT(A) erred on facts and in law in holding that payment of tax by the deductee would not alter the liability to levy interest under section 201(1A) of the Act.
The Appellant craves leave to add to, alter, amend or vary the above grounds of appeal at or before the time of hearing."
3. A survey was conducted on the assessee on 15.02.2011, during which it was observed that the assessee was liable to deduct TDS u/s 194J (@10%) and not u/s 194C (@2%) on the payments being made to Samsung Data Systems Pvt. Ltd. (SDSL) for services being rendered by the latter, as in terms of contract agreement between the assessee and SDSL the services being rendered by SDSL to the assessee were professional in nature. Thereafter during proceedings u/s 201/201A of the Act, it was observed by the Assessing Officer that apart from short deduction on account of the findings during survey, there was also delay in deposit of the taxes due. Hence a demand of Rs. 16,78,677/- was created u/s 201/201(1A) of the Act vide order dated 25.03.2013.
4. Being aggrieved by the order u/s 201/201(1A), the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.
5. The Ld. AR submitted that there was no loss to the department in as much as taxes due from the deductee (SDSL) stands already recovered by the Revenue Department, in advance, by way of deduction of substantial tax at source from the income of the deductee (much more than tax due on income of the deductee), no question of levy of interest under Section 201(1A) of the Act arises against the deductor assessee for delay in part deduction and payment of tax on payments made to deductee. The said contention of the assessee was 2 3 ITA No. 2496/Del/2015 not accepted by the CIT(A) on the ground that since the scrutiny assessment in the case of Samsung Data System India Pvt. Ltd. (deductee) for the relevant assessment Year 2011-12 was pending, the aforesaid claim of the assessee qua sufficient tax deposited in the case of deductee/refunds due to the deductee could not be accepted as assessment in the case of deductee was not finalized and accordingly refunds due to the deductee were not accepted by the Revenue till that date i.e. till passing of order by the CIT(A). The Ld. AR submits that since the assessment order dated 23.03.2015 was passed under Section 143(3) of the Act in the case of the deductee (SDSL) wherein returned income and refunds have duly been accepted by the Revenue Department. The Ld. AR further submitted that the same could not be placed on record before the Assessing Officer as the same was passed much after passing of impugned order by the Assessing Officer. Further, the aforesaid assessment order in the case of deductee was also not available with the assessee company at the time of conclusion of the hearing before the CIT(A)/passing of order by the CIT(A) in as much the assessment order in the case of deductee was passed on 23.02.2015 i.e. just a day prior to passing of the impugned order by the CIT(A) (on 24.02.2015) and was received later. Therefore, the Ld. AR prayed that the additional evidence be taken on record and the issue be decided in light of the order dated 23.02.2015. The Ld. AR relied upon various decision of the Hon'ble High Courts.
5. The Ld. DR submitted that since the order under Section 143(3) of the Act was passed on 23.02.2015, the present issue be decided a fresh by the Assessing Officer.
6. We have heard both the parties and perused the material available on record. The order u/s 143(3) was passed on 23.02.2015 by the Assessing Officer wherein the return of income of the assessee was accepted. The said order is passed afterwards and therefore, the CIT(A) was not having the benefit of the said order. In the interest of justice, we are admitting the additional 3 4 ITA No. 2496/Del/2015 evidence relying upon the decision of the Hon'ble Delhi High Court in case of CIT vs. Text Hundred India Pvt. Ltd. 239 CTR 263 wherein it is held that Rule 29 permitting the Tribunal to admit additional evidence is made to enable the Tribunal to admit any additional evidence which would be necessary to do substantial justice in the matter. Further, it will be appropriate to take the additional evidence at this juncture and decide the issue on merit. Since the order u/s. 143(3) was passed on 23.02.2015 and the CIT(A) was not looked into the same while passing the order, therefore, it will be appropriate to remand back this issue to the file of the CIT(A) for taking cognizance of the order u/s 143(3) while deciding the issue of charging interest of Rs. 16,78,676/- under section 201(1A) of the Act. Thus, the order of the CIT(A) is set aside. Needless to say, the assessee be given full opportunity of hearing by following principles of natural justice. Therefore, the appeal of the assessee is partly allowed.
7. In result, appeal of the assessee is partly allowed for statistical purpose. Order pronounced in the Open Court on 13th March, 2018.
Sd/- Sd/-
(R.K. PANDA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 13/03/2018
R. Naheed *
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
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5 ITA No. 2496/Del/2015
Date
1. Draft dictated on PS
28/12/2017
2. Draft placed before author PS
28/12/2017
3. Draft proposed & placed before .2018 JM/AM
the second member
4. Draft discussed/approved by JM/AM
Second Member.
5. Approved Draft comes to the PS/PS
Sr.PS/PS 13.03.2018
6. Kept for pronouncement on PS
7. File sent to the Bench Clerk 13.03.2018 PS
8. Date on which file goes to the AR
9. Date on which file goes to the
Head Clerk.
10. Date of dispatch of Order.
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6 ITA No. 2496/Del/2015
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