ADIT, Dehradun v. M/s. Global Industries Offshore LLC., New Delhi

ITA 4009/DEL/2010 | 2006-2007
Pronouncement Date: 05-01-2011 | Result: Dismissed

Appeal Details

RSA Number 400920114 RSA 2010
Assessee PAN AACCG4200F
Bench Delhi
Appeal Number ITA 4009/DEL/2010
Duration Of Justice 4 month(s) 8 day(s)
Appellant ADIT, Dehradun
Respondent M/s. Global Industries Offshore LLC., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 05-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 05-01-2011
Date Of Final Hearing 05-01-2011
Next Hearing Date 05-01-2011
Assessment Year 2006-2007
Appeal Filed On 27-08-2010
Judgment Text
I.T.A. NO. 4009 /DEL/2010 1/3 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH C NEW DELHI BENCH C NEW DELHI BENCH C NEW DELHI BENCH C BEFORE SHRI R. P. TOLANI JUDICIAL MEMBER AND SHRI K. D. RANJAN ACCOUTANT MEMBER ITA NO. 4009/DEL/2010 (ASSESSMENT YEAR2006-07) ACIT VS. M/S. GLOBAL INDUSTRIES OFFSHORE LLC V S. INTERNATIONAL TAXATION C/O S R BATLIBOI & CO. CAS DEHRADUN 6 TH FLOOR H T HOUSE 18-20 KASTURBA GANDHI MARG NEW DELHI. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AACCG4200F APPELLANT BY: SMT. MONA MOHANTY SR. DR RESPONDENT BY: NONE ORDE ORDE ORDE ORDER RR R PER K. D. RANJAN AM: PER K. D. RANJAN AM: PER K. D. RANJAN AM: PER K. D. RANJAN AM: 1. THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YE AR 2006-07 ARISES OUT OF THE ORDER OF LD. CIT(A) II DEHRADUN . THE GROUNDS OR APPEAL RAISED BY THE REVENUE IS AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CI T(A) HAS ERRED IN DIRECTING THAT INTEREST UNDER SECTION 234B IS NOT CHARGEABLE IN THIS CASE. 2. AT THE TIME OF HEARING WHEN THE CASE WAS CALLED UPON NONE ATTENDED ON BEHALF OF THE ASSESSEE. HAVING REGARD TO THE ISSUE INVOLVED THE APPEAL IS DECIDED AFTER HEARING THE L D. SR. D.R. 3. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT T HE A.O. WHILE COMPUTING TOTAL INCOME CHARGED INTEREST U/S 234B. ON APPEAL IT WAS SUBMITTED THAT THE A.O. WHILE DETERMINING THE T AX PAYABLE HAS NOT ALLOWED CREDIT OF ` 11 87 71 699/- ON ACCOUNT O F TAX DEDUCTED AT SOURCE ON PAYMENTS MADE TO THE ASSESSEE BY ONGC. C ONSEQUENTLY TAX DEMAND OF ` 14 36 05 762/- INCLUDING INTEREST O F ` 3 56 31 486/- U/S 234B WAS RAISED ON THE ASSESSEE. PURSUANT TO O RDER U/S 154 THE A.O. ALLOWED TAX CREDIT FOR TDS TO THE EXTENT ON AC COUNT OF RETURNED I.T.A. NO. 4009 /DEL/2010 2/3 INCOME I.E. ` 10 79 74 276/-. SINCE THERE WAS NO T AX PAYABLE INTEREST U/S 234B WAS NOT PAYABLE BY THE ASSESSEE. IT WAS ALSO SUBMITTED THAT ADVANCE TAX U/S 208 AND 209 OF THE A CT IS NOT PAYABLE IN A CASE WHERE TAX IS DEDUCTIBLE AT SOURCE ON THE ENTIRE INCOME RECEIVED BY THE ASSESSEE. LD. CIT(A) RELYING ON THE DECISION OF UTTARAKHAND HIGH COURT IN THE CASE OF CIT VS SED CO FOREX INTERNATIONAL DRILLING CO. 264 ITR 320 AND DELETED THE ADDITION. 4. WE HAVE HEARD LD. SR. DR AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ISS UE IS COVERED BY THE DECISION OF HONBLE UTTARAKHAND HIGH COURT IN T HE CASE OF SEDCO FOREX INTERNATIONAL DRILLING CO. LTD. (SUPRA). LD. CIT(A) WHILE DELETING THE LEVY OF PENALTY HELD AS UNDER: 5. THE SECOND GROUND AGITATES CHARGE OF INTEREST U /S 234B OF THE ACT. IN THIS REGARD THE WRITTEN SUBMISSION S OF THE LD. ARS DATED 27.04.2009 HAVE BEEN GONE THROUGH AND THE SAME ARE ALSO BEING REPRODUCED AS UNDER: THE TAX LIABILITY OF THE APPELLANT FOR THE CAPTION ED YEAR HAS BEEN DETERMINED BY THE LD. A.O. AT ` 10 79 74 2 76/-. HOWEVER THE LD. A.O. DID NOT GRANT CREDIT FOR THE TDS OF ` 11 87 71 699/- ON THE PAYMENTS MADE TO THE APPELL ANT BY ONGC. CONSEQUENTLY A TAX DEMAND OF ` 14 36 05 762/- (INCLUSIVE OF INTEREST AMOUNTING TO ` 3 56 31 486/- U/S 234B OF THE ACT) WAS RAISED ON TH E APPELLANT FOR THE CAPTIONED YEAR. PURSUANT TO THE ORDER U/S 154 OF THE ACT DATED 30.03.2009 WHEREIN THE LD. A.O. HAS GRANTED CREDIT FOR THE TDS TO THE EXTENT OF TAX ON THE RETURNED INCOME I.E. ` 10 79 74 276/- THERE IS BE NO TAX PAYABLE AND HE NCE NO INTEREST U/S 234B PAYABLE BY THE APPELLANT FOR T HE CAPTIONED YEAR. HENCE THIS GROUND IS NOT BEING PR ESSED BEFORE YOUR HONOUR. WITHOUT PREJUDICE TO THE ABOVE IT IS RESPECTFULLY SUBMITTED THAT HE ENTIRE REVENUES RECEIVED BY THE APPELLANT BEING A NON-RESIDENT IS SUBJECT TO TAX DEDUCTION AT SOURCE. ACCORDINGLY IN CASE WHERE TA X IS DEDUCTIBLE AT SOURCE ON THE ENTIRE INCOME RECEIVED BY THE APPELLANT THERE WOULD BE NO ADVANCE TAX PAYABL E U/S 208 AND 209 OF THE ACT. IT IS THEREFORE RESP ECTFULLY SUBMITTED THAT AS THE APPELLANT IS NOT LIABLE TO PA Y ANY ADVANCE TAX UNDER THE ACT NO INTEREST U/S 234B OF THE ACT (FOR DEFAULT IN PAYMENT OF ADVANCE TAX) IS LEVI ABLE. RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL DECISI ONS: I.T.A. NO. 4009 /DEL/2010 3/3 I) CIT VS. SEDCO FOREX INTERNATIONAL DRILLING CO. L TD. (264 ITR 320) (UTTARANCHAL HIGH COURT) II) MOTOROLA INC. VS DCIT (95 ITD 269) (DELHI ITAST ) (SB) III) DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION ) VS. NGC NETWORK ASIA LLC (222 CTR 86) (MUMBAI H.C.) IV) FISONS PIC VS. DCIT (2004) ((1 ITD 450). IN VIEW OF THE ABOVE IT IS RESPECTFULLY SUBMITTED THAT THE INTEREST U/S 234B OF THE ACT IS NOT LEVIABLE IN THE APPELLANTS CASE. 6. THE UNDERSIGNED IS IN AGREEMENT WITH APPELLANTS RELIANCE ON THE DECISION OF THE HON'BLE HIGH COURT OF UTTARAKHAND IN CIT VS SEDCO FOREX INTL. DRILLING CO . LTD. (264 ITR 320) WHICH HAS RULED THAT INTEREST U/S 234 B IS NOT LEVIABLE WHERE TAXES ARE TO BE COLLECTED THROUGH TD S ONLY AND WHERE THERE IS NO ADVANCE TAX LIABILITY. THIS IS ONE SUCH CASE. THE GROUND IS THEREFORE ALLOWED. 5. SINCE THE ISSUE IS COVERED BY THE DECISION OF HO N'BLE HIGH COURT OF UTTARAKHAND IN THE CASE OF SEDCO FOREX INT L. DRILLING CO. LTD. (SUPRA) WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A) DELETING THE ADDITION. 6. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. 7. PRONOUNCED IN THE OPEN COURT ON 05 TH JAN. 2011 ON CLOSE OF HEARING. SD./- SD./- (R. P. TOLANI) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05 TH JAN. 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI