The ADIT.,(Intl.Taxn.), Ahmedabad v. Toshiba Technical Services International Corporation, Ahmedabad

ITA 2245/AHD/2008 | 2005-2006
Pronouncement Date: 23-07-2010 | Result: Dismissed

Appeal Details

RSA Number 224520514 RSA 2008
Assessee PAN AABCT9577D
Bench Ahmedabad
Appeal Number ITA 2245/AHD/2008
Duration Of Justice 2 year(s) 1 month(s) 11 day(s)
Appellant The ADIT.,(Intl.Taxn.), Ahmedabad
Respondent Toshiba Technical Services International Corporation, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 23-07-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 23-07-2010
Date Of Final Hearing 19-07-2010
Next Hearing Date 19-07-2010
Assessment Year 2005-2006
Appeal Filed On 11-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH B BB B BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI N NN N. .. .S. SAINI S. SAINI S. SAINI S. SAINI ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AND AND AND AND SHRI SHRI SHRI SHRI MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING : 19-7-10 DRAFTED ON:19- 7-10 ITA NO. 2245 /AHD/ 2008 ASSESSMENT YEAR :2005-06 THE ASSISTANT DIRECTOR OF INCOME TAX (INTERNATIONALTAXATION) 4 TH FLOOR NATURE VIEW BUILDING ASHRAM ROAD AHMEDABAD VS. TOSHIBA TECHNICAL SERVICES INTERNATIONAL CORPORATION C/O. DELOITTEE HASKINS & SELLS CHARTERED ACCOUNTANT 12 DR.ANNIE BASANT ROAD OPP.SHIVSAGAR ESTATE MUMBAI-400018. PAN/GIR NO. : AABCT 9577 D (A PPELLANT ) .. ( RESPONDENT ) DEPARTMENT BY: MR.K. MADHUSUDAN SR.D.R. RESPONDENT BY: MR. YOGESH SHAH O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XXI AHMEDABAD DATED 18-3-2008. 2. THE REVENUE HAS TAKEN FOLLOWING EFFECTIVE GROUND S: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )- XXI AHMEDABAD HAS ERRED IN LAW AND FACTS IN DELETI NG THE ADDITION OF `.5 75 082/- HOLDING THAT LEARNED ASSESSING OFFICER HAS ADOPTED TT SELLING RATE AS DO NE BY SUMITOMO CORPORATION RELYING ONLY ON ASSESSEES SUBMISSION. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT IN PRESENT CASE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S HIMSELF SUBMITTED THAT BASIS OF CONVERSION BY SUMITOMO CORPORATION IS NOT KNOWN TO HIM. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXI AHMEDABAD HAS ALSO ERRED IN LAW AND FACTS IN DELETING THE ADDITION RELYING ON ASSESSEES SUBMISS ION THAT COMPUTATION AS PER TT BUYING RATE WOULD BE LES S - 2 - THAN THE AMOUNT DECLARED IN BOOKS OF ACCOUNT DESPIT E THE FACT THAT PRESENT CASE ASSESSEE HAS NOT COMPUTE D THE RECEIPT IN ITS BOOKS OF ACCOUNT AS PER RULE 115 OF INCOME TAX ACT AS REQUIRED AS PER LAW. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXI AHMEDABAD HAS ERRED IN LAW AND FACTS IN HOLDIN G THAT SUMITOMO CORPORATION HAS ADOPTED THE TT SELLIN G RATE INSTEAD OF TT BUYING RATE. LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT A S PER RULE 26 IT IS THE DUTY OF DEDUCTOR TO APPLY TH E CORRECT RATE WHICH IN PRESENT CASE IS SUMITOMO CORPORATION. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT IN PRESENT CASE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S HIMSELF SUBMITTED THAT THE BASIS OF CONVERSION BY SUMITOMO CORPORATION IS NOT KNOWN TO HIM. 3. SINCE THE FACTS AND ISSUE INVOLVED IN ALL THE AB OVE GROUNDS OF APPEAL ARE COMMON THEY ARE BEING DISPOSED OFF TOGET HER AS UNDER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE ASSESSEE IS A FOREIGN COMPANY. THE ASSESSEE-COMPANY RECEIVED CONS IDERATION FOR CONTRACT WORK EXECUTED IN INDIA FROM CONTRACTEE NAMELY SUMITOMO CORPORATION WHICH IS ALSO A FOREIGN COMPAN Y. THE ASSESSEE RECEIVED THE AMOUNT IN FOREIGN EXCHANGE OU TSIDE INDIA. THE ASSESSEE HAS SHOWN SUCH RECEIPT AT `.6 54 57 24 2/- IN ITS RETURN OF INCOME WHEREAS THE SAME WAS REFLECTED AT `. 6 60 32 324/- IN THE TDS CERTIFICATE ISSUED BY SUMI TOMO CORPORATION. 5. BEFORE THE LEARNED ASSESSING OFFICER THE ASSESSE E EXPLAINED THAT THE BASIS ON WHICH SUMITOMO CORPORATION HAS ME NTIONED THE AMOUNT IN THE TDS CERTIFICATE IS NOT KNOWN AND THE ASSESSEE HAS CALCULATED ITS RECEIPT ON THE BASIS OF TT BUYING RA TE OF THE RBI ON THE TRANSACTION DATE. 6. ACCORDING TO THE LEARNED ASSESSING OFFICER SUMIT OMO CORPORATION SHOULD HAVE MENTIONED THE AMOUNT AS PER TT BUYING RATE IN THE TDS CERTIFICATE. THE LEARNED ASSESSING OFFICER THEREFORE - 3 - ADOPTED THE AMOUNT DECLARED IN TDS CERTIFICATE AS T HE RECEIPT OF THE ASSESSEE AND ADDED ` 5 75 082 TO THE INCOME OF THE ASSESSEE 7. ON APPEAL THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) FOUND THAT AS PER THE TT BUYING RATE THE VALUE OF RECEIPT OF THE ASSESSEE COMES TO `. 6 53 91 055/- AND THE A SSESSEE ITSELF HAS DECLARED MORE THAN THAT I.E. `. 6 54 57 243/- A S ITS RECEIPT AND THEREFORE THE LEARNED ASSESSING OFFICER WAS NOT JU STIFIED IN FURTHER ADDING `. 5 57 082/- TO THE INCOME OF THE ASSESSEE. THEREFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DELETE D THE ADDITION OF ` 5 75 082/-. 8. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIV E RELIED UPON THE ORDER OF THE LEARNED ASSESSING OFFICER. 9. WE FIND THAT THE LEARNED DEPARTMENTAL REPRESENTA TIVE COULD NOT BRING ANY MATERIAL BEFORE US TO SHOW THAT THE A SSESSEES RECEIPT SHOULD HAVE BEEN MORE THAN `. 6 54 57 243/- AS PER RULE 115 OF THE I.T. RULES. IT IS ALSO OBSERVED THAT TH E LEARNED ASSESSING OFFICER ALSO FAILED TO BRING ON RECORD ANY MATERIAL TO SHOW THAT THE ASSESSEES RECEIPT AS PER RULE 115 COMES TO AN AMOU NT WHICH IS MORE THAN `. 6 54 57 243/- AS DECLARED BY THE ASSES SEE. THE ONLY MATERIAL POINTED OUT BY THE LEARNED ASSESSING OFFIC ER WAS TDS CERTIFICATE WHICH THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) ON VERIFICATION WITH THE CERTIFICATE ISSU ED BY SBI MUMBAI FOUND THAT THE VALUE IN TDS CERTIFICATE WAS WRONGLY TAKEN AT SELLING RATE OF TT IN PLACE OF ITS BUYING RATE AS PER RULE 115. NO MATERIAL WAS BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT T HE AMOUNT TAKEN IN TDS CERTIFICATE ISSUED BY SUMITOMO CORPORA TION WAS AS PER TT BUYING RATE. IN ABSENCE OF ANY MATERIAL BRO UGHT ON RECORD BY THE REVENUE WE DO NOT FIND ANY GOOD REASON TO IN TERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IT IS CONFIRMED AND THE GROUNDS APPEAL OF THE REVENUE ARE DISMISSED. 10. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. - 4 - ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 23RD JULY 2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 23RD DAY OF JULY 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 20-7-10 2. DRAFT PLACED BEFORE AUTHORITY 20-7-10 3. DRAFT PROPOSED & PLACED 20-7-10 JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED J M/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 6. KEPT FOR PRONOUNCEMENT ON ---------------- -- ------------------ 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- -- -------------------