Samne Deutz Fahr Group Spa, Mumbai vs Department Of Income Tax

सर्वश्री आय.सी.शभमव, रेखम सदस्म एवुं सश्र ु ी सष ु भम चमर्रम, न्ममयमक सदस्म BEFORE SHRI R.C.SHARMA, AM & MS. SUSHMA CHOWLA, JM आमकय अऩीर सं./ITA No.1291/Mum/2013 ( नििाारण वषा / Assessment Year :2011-12) DDIT(IT)-2(1), Mumbai Vs. M/s Same Deutz Fahr Group SPA, SRBC & Associates, 14 t h Floor, The Ruby, Senapati Bapat Marg, Dadar(W ), Mumbai-400028 स्थममी रेखम सं ./ जीआइआय सं ./ PAN/GIR No. : AABCS 1680 A (अऩीरमथी /Appellant) .. (प्रत्मथी / Respondent)

यमजस्र् की ओर से /Revenue by : Shri Neil Philip यनधमवरयती की ओर से /Assessee by : None

सुनर्मई की तमयीख / Date of Hearing : 02/06/2015 घोषणम की तमयीख/Date of Pronouncement 10/06/2015

आदे श / O R D E R

PER R.C.SHARMA (A.M):

This is an appeal filed by the revenue against the order of CIT(A)-

11, Mumbai, dated 27-11-2012 for the assessment year 2011-12, in the

matter of order passed u/s.143(3) of the I.T. Act, wherein the revenue has

taken following grounds :-

1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in deleting the interest charged under section 234-B of the Income-tax Act, 1961 without appreciating the fact that Explanation 1(i) of the section 234B of the Income-tax Act, 1961 used the expression 'income deducted or collected at source". Accordingly, material is whether the tax at source was deducted or collected and if it 2 ITA No.1291/13

was not actually collected or deducted, the liability to pay interest arises in the instant case.

2. On the facts & circumstances of the case and in law, the CIT(A) erred in giving relief to the assessee on the issue of chargeability of interest under section 234B, when the assessee has itself, in the return of income filed, computed & included the interest u/s 234B & 234C while computing the tax liability & further, the assessee has also not filed any revised return for the year under consideration for claiming this relief.

3. The Appellant prays that the order of the Id. CIT(A) be set aside on the above grounds and that of the Assessing Officer be restored.

2. Rival contentions have been heard and record perused. Facts in

brief are that the assessee company is established and registered under

the laws of Italy having its registered office at 14, Viale Francesco

Cassani Trevigelio-Italy). The assessee, a non-resident as per the IT Act

entered into a royalty agreement dated 1-4-2008 with Same Deuz Fahr

India Pvt. Ltd., a company incorporated under Indian Companies Act,

1956, for the use of the trade mark "Deutz Fahr" by Same India, pursuant

to which the assessee receives royalty income from Same India. For the

assessment year 2011-2012 under consideration, the royalty income was

the only source of income from India for the assessee as per the Act.

3. The issue of charging interest u/s.234B&234C where income is

subject to TDS, is covered by the decision of Hon'ble jurisdictional High

Court in the case of NGC Asia Networks LLC, 313 ITR 187, wherein it

was held that no interest is leviable u/s.234B&234C where the income is

subject to TDS. In the instant case before us, since the alleged income

was liable to tax deduction at source u/s.195, there was no liability to pay

advance tax under section 208 of the Act and in absence of any liability to 3 ITA No.1291/13

pay advance tax, the provisions of Section 234B and 23C of the Act is not

applicable. Accordingly, we do not find any infirmity in the order of CIT(A)

for deleting the interest u/s.234B&234C of the Act by following the

decision of Hon'ble Bombay High Court in the case of NGC Asia

Networks LLC (supra).

4. In the result, appeal of the revenue is dismissed.

Order pronounced in the open court on this 10/06/2015.

Sd/- Sd/- (सष ु भम चमर्रम) (आय.सी.शभमव) (SUSHMA CHOWLA) (R.C.SHARMA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER भंफ ु ई Mumbai; ददनमंक Dated 10/06/2015 प्र.कु.मभ/pkm, यन.स/ PS

आदे श की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to :

1. अऩीरमथी / The Appellant

2. प्रत्मथी / The Respondent.

3. आमकय आमक् ु त(अऩीर) / The CIT(A), Mumbai.

4. आमकय आमुक्त / CIT

5. वर्बमगीम प्रयतयनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai

6. गमर्व पमईर / Guard file.

आदे शािसार/ BY ORDER, सत्ममवऩत प्रयत //True Copy/

उप /सहायक पुंजीकार (Asstt. Registrar) आयकर अपीऱीय अधिकरण, भुंफई / ITAT, Mumbai