Income Tax Appellate Tribunal - Mumbai
Deputy Commissioner Of Income Tax (Tds) ... vs Hungama Digital Media Entertainment ... on 21 January, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "I" BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM M.A. Nos. 247 & 248/Mum/2018 (Arising out of ITA Nos. 2495 & 2494/Mum/2015) (Assessment Year: 2012-13 & 2011-12) DCIT(TDS)-1(2) M/s. Hungama Digital Media th Room No. 814, 8 Floor, Entertainment Pvt. Ltd. Smt. K. G. Mittal Ayurvedic Hospital SF-B-07, Art Guild House, Vs. Bldg., Mumbai-400 002 Phoenix Market City, LBS Marg, Kurla (West), Mumbai-400 070 PAN/GIR No. AAACV 7289 H (Appellant) : (Respondent) Appellant by : Shri S. Abi Rama Kartikayan Respondent by : Shri S. C. Tiwari Date of Hearing : 28.12.2018 Date of Pronouncement : 21.01.2019 Order u/s. 254(2) of the Income Tax Act, 1961 Per Shamim Yahya, A. M.:
By way of these miscellaneous applications the Revenue seeks rectification of mistake apparent from record in the common order of this tribunal in ITA Nos. 2494 & 2495/Mum/2015 for assessment years 2011-12 & 2012-13 vide order dated 01.11.2017.
2. In the miscellaneous applications, the assessee has made the following submissions:
2. In this Case AO has passed the order u/s 201(1)/201(1A) of the I T Act on 26.03.2013 after duly giving opportunities to the assessee and raised the demand which was partly confirmed by the CIT(A), Mumbai. Before the Hon'ble ITAT, the AR of the assessee placed reliance on various case laws including Hindustan Coca-Cola Beverage Pvt. Ltd. [293 ITR 226(SC)J.
3. In the present case, Hon'ble ITAT seem to has not considered the original issue of non deduction/short deduction so that the demand status of payee can be 2 M.A . Nos. 247 & 248/ Mum/2018 ascertained. Even in the above cited case the Hon'ble Supreme Court has also confirmed the liability of the assessee in the light of CBDT circular as under
"Be that as it may, the Circular No. 2751201195-/T(B), dated 29-1-1997 issued by the Central Board of Direct Taxes, in our considered opinion, should put an end to the controversy. The circular declares "no demand visualized under section 201(1) of the income-tax Act should he enforced after the tax deductor has satisfied the officer-in-charge of TDS, that taxes due have been paid by the deductee-assessee However, this will not alter the liability to charge interest under section 201(1A) of the Act till the date of payment of taxes by the deductee-assessee or the liability for penalty under section 271 C of the Income-tax Act."
4. The assesee has not taken plea of tax paid by the deductee though the assessee submitted its reply before AO. Moreover decision of Honble Supreme Court in Hindustan Coca Cola has came in year 2007 in this regard and circular number 275/201/95-IT(B), dated 29.01.1997 was in force. In any case Ld. ITAT may have directed to verify payment of taxes by deductee in view the above case law and circular. However, issue of levy of interest u/s 201(1A) should have been decided, which is based on the rate applicable to various transactions mentioned in the order In view of the above, Hon'ble ITAT has not decided the quantum issue of computation of interest which is based on rate of deduction/short deduction on various transactions. Thus Ud. ITAT erred in not deciding the issue of short deduction or non deduction, which is required for computing interest u/s 201(1A) and thus further erred in stating it is consequential to computation u/s 201 (1) only.
5. In view of the above facts, it is humbly prayed that the decision by the Hon'ble ITAT "L" Bench, Mumbai needs to be recalled and the issue is to be decided on merits of the case. Accordingly, this Miscellaneous Application is hereby moved u/s 254(2) of the Income Tax Act, 1961 with a prayer to recall the order dated 1.11.2017 for AY 2012-13 in ITA No. 2495/Mum/2015 and adjudicate the same on merits of the case.
3. We have heard both the counsel and perused the records. We find that in the IT appeal, the tribunal has considered an additional ground raised by the assessee. After admitting the same, the issue was remitted to the A.O. as its adjudication needed reference to factual matrix.
Furthermore, the Tribunal concluded that since the issue is being remitted on jurisdictional aspect, the others grounds on merits are not being dealt with by us and 3 M.A . Nos. 247 & 248/ Mum/2018 their survival will be dependent on the outcome of the issue remitted hereinabove.
4. Now the Revenue has filed miscellaneous application that the tribunal has not considered the original issue. We find that the Revenue authorities have not read the entire order of the tribunal before filing the above miscellaneous application.
In our considered opinion, there is no mistake apparent from the record in the order of the tribunal liable for rectification.
5. In the result, these miscellaneous applications by the Revenue stands dismissed.
Order pronounced in the open court on 21.01.2019 Sd/- Sd/-
(Sandeep Gosain) (Shamim Yahya)
Judicial Member Accountant Member
Mumbai; Dated : 21.01.2019
Roshani, Sr. PS
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent
3. The CIT(A)
4. CIT - concerned
5. DR, ITAT, Mumbai
6. Guard File
BY ORDER,
(Dy./Asstt. Registrar)
ITAT, Mumbai