Vodafone Mobile Services Ltd New Delhi v. Acit New Delhi

1 In The Income Tax Appellate Tribunal Delhi Bench C New Delhi Before Sh N K Saini Accountant Member And Sh K N Chary Judicial Member Ita No 409 Del 20 1 5 Assessment Year 20 04 05 Vodafone Mobile Services Ltd Earlier Known As Vodafone Essar Mobile Services Ltd Circle Office C 48 Okhla Industrial Area Phase Ii New Delhi Pan Aaacs 4457 Q Vs Assistant Commissioner Of Income Tax Circle 51 1 New Delhi Appellant Respondent Ita No 4 10 Del 20 1 5 Assessment Year 2005 06 Vodafone Mobile Services Ltd Earlier Known As Vodafone Essar Mobile Services Ltd Circle Office C 48 Okhla Industrial Area Phase Ii New Delhi Pan Aaacs 4457 Q Vs Assistant Commissioner Of Income Tax Circle 51 1 New Delhi Appellant Respondent Ita No 41 1 Del 20 15 Assessment Year 200 6 07 Vodafone Mobile Services Ltd Earlier Known As Vodafone Essar Mobile Services Ltd Circle Office C 48 Okhla Industrial Area Phase Ii Vs Assistant Commissioner Of Income Tax Circle 51 1 New Delhi 2 O Order Per K N Chary Judicial Member These Three Appeals Relat E To The Assessment Years 2004 05 To 2006 07 And Are Preferred By The Assessee Challenging The Findings Of The Learned Cit A Ix New Delhi Hereinafter Referred To The As The Act Where Under The Learned Cit A Refus Ing To Delete The Tds Liability Of Assessee Determined By The Learned Ao Under Section 201 201 1 A Of The Income Tax Act 1961 Hereinafter Referred To As The Act Facts Of These Three Appeals Are Similar Hence We Shall Dispose Them Of By Way Of Common O Rder With Reference To The Facts Involved For The Ay 2004 05 2 Briefly Sta Ted Facts Are That The Assessee Is A Subsidiary Company Of Vodafone Essar Ltd And Is Engaged In Telephony Services Through Pre Paid And Post Paid Connections In Connection With T He Telephony Services The Assessee Also Pays Roaming Charges To Other Telecom Operators That Relevant Tax Has Been Duly Deducted And Deposited By The Assessee On Upfront Commission Paid To The Prepaid Distributors Durin G The Subject Year That T He Ld Ao In His Order Treating The Assessee As An Assessee In New Delhi Pan Aaacs 4457 Q Appellant Respondent Assessee By Sh Salil Kapur Ms Ananya Kapur Advocates Respondent By Sh Arun Kumar Yadav Sr Dr Date Of Hearing 14 12 2017 Date Of Pronouncement 15 12 2017 3 Default Stated That Though The Assessee Submitted That Relevant Tax Had Been Deducted On The Amount Of Commission As Per The Provisions Of The Section 194 H Of The Act However No Evidence To Subs Tantiate The Same Was Furnished Before His Office As Such On Account Of Failure To Submit The Necessary Supporting The Assessee Was Held To Be Assessee In Default On Upfront Commission Further On Account Of Failure To Deduct Tax On Roaming Charges Th E Assessee Was Held To Be An Assess E E In Default On Non Deduction Of Tax On Roaming Charges Accordingly The Ao Raised The Demand Of Rs 2 10 27 473 As Tds Liability Along With Interest On Commission Paid To The Distributors On Pre Paid Connections And Rs 3 88 73 502 As Tds Liability And Interest On Roaming Charges Assessee Also Filed A Writ Petition Before The Hon Ble Delhi High Court Contending That The Tds Proceedings Are Time Barred The Hon Ble Delhi High Court Vide Order Dated 22 03 20 11 Has In Principle Allowed The Revenue To Pass Under Section 201 Of The Act For The Year Under Consideration With A Direction Not To Take Any Coercive Steps For Recovery Of Till The Disposal Of The Writ Petition The Ao Proceeded With The Matter And Concluded The Proceedings Under Section 201 Read With Section 201 1 A Of The Act By Determining Tds Liability And Interest Thereon At 5 99 00 939 In The Appeal Preferred By The Assessee Learned Cit A Observed That The Issue Is Pending Before The Hon Ble High Court Of Delhi Under The Writ Petition Filed By The Assessee As Such Without Adjudicating The Same He Sen T The Matter Back To The Ao Stating Once The Order Of The Hon Ble High Court Is Passed The Ao To Apply The Same In The Relevant Year 4 3 At The Outset It Is Brought To Our Notice By The Learned Ar That In Wp C 8535 2011 Cm Appls 19305 2011 9781 2012 Wp C 8536 2011 Cm Appls 19307 2011 9778 2012 And Wp C 8537 2011 Cm Appls 19309 2011 9776 2012 The Matters Preferred By The Assesse E The Hon Ble Jurisdictional High Court Was Pleased To Quash The Notice Issued By The Revenue Seeking To Initiate The Proceedings Against The Assessee To Declare Them To Be The Assessee In Default Under Section 201 3 Of The Act As Such The Determination The Tds Liability Done By The Ao U S 201 201 1 A Of The Act Does Not Survive Learned Dr Does Not Controvert This Fact 4 We Have Gone Through The Record Learned Ar Submitted That Wp C 8535 2011 Relate To The Financial Year 2003 04 Wp C 8536 2011 Relate To The Financial Year 2004 05 And Wp C 8537 2011 Relate To The Financial Year 2005 06 And The Order Dated 9 3 2016 Is Passed In These Three Wpcs However A Typographical Mistake Had Crept In Paragraph No 30 And 31 Of This Order Inasmuch As For The Financial Years By Typographical Mistake Assessment Year Is Mentioned 5 We Have Gone Through The Record Order Of The Learned Cit A Vide Paragraph No 3 1 Reads That The Assessee Challen Ged The Tds Proceedings As Time Barred Before Hon Ble High Court And In This Context Learned Cit A Directed The Learned Ao To Apply The Orders Of The Hon Ble High Court As And When They Are Passed In The Case Of The Assessee We Therefore In View Of The Order Dated 9 3 2016 Of The Hon Ble High Court Deem It Just And Convenient To Set Aside The Issue To The File Ao To Apply The Order Of The Hon Ble High Court In Wp C 8535 2011 Cm Appls 19305 2011 9781 2012 Wp C 5 8536 2011 Cm Appls 19307 2011 9778 2012 And Wp C 8537 2011 Cm Appls 19309 2011 9776 2012 To The Case Of The Assessee We Accordingly Direct The Ld Ao To To Apply The Order Of The Hon Ble High Court In Wp C 8535 2011 Cm Appls 19305 2011 And Batch To The Case Of The Assessee 6 In The Result These Appeal S Are Allowed For Statistical Purposes The Order Is Pronounced In The Open Court On 15 Th December 2017 Sd Sd N K Saini K N Chary Accountnat Member Judicial Member Date 15 Th Dec 2017 Sh Copy Forwarded To 1 Appellant 2 Respondent 3 Cit 4 Cit Appeals 5 Dr Itat Assistant Registrar Itat New Delhi Date 1 Draft Dictated On 1 4 1 2 2017 Ps 2 Draft Placed Before Author 15 1 2 2017 Ps 3 Draft Proposed Placed Before The Second Member Jm Am 4 Draft Discussed Approved By Second Member Jm Am 5 Approved Draft Comes To The Sr Ps Ps 15 1 2 2017 Ps Ps 6 Kept For Pronouncement On Ps 7 File Sent To The Bench Clerk 15 1 2 2017 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