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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आयकर अपील�य अ�धकरण, इ�दौर �यायपीठ, इ�दौर
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE
BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA Nos.262 to 264/Ind/2018 Assessment Years: 2008-09 to 2010-11 Vodafone Idea Limited,(formerly JCIT, TDS, बनाम/ Idea Cellular Limited) Indore Vs. 139-140 Electronic Complex, Pardeshipura, Indore (Appellant) (Revenue) PAN: AAACB2100P Appellant by Shri Ronak Doshi, CA Revenue by Smt. Ashima Gupta, CIT-DR Date of Hearing: 25.09.2019 Date of Pronouncement: 25.10.2019 आदेश / O R D E R PER MANISH BORAD, A.M: The above captioned appeals at the instance of Assessee pertaining to A.Ys. 2008-09 to 2010-11 are directed against the order of Commissioner of Income Tax(Appeals)-II, Indore, (in short ‘CIT’), dated 01.02.2018 which is arising out of the order u/s 271C of the Income Tax Act 1961(hereinafter called as the ‘Act’) framed on 20.08.2013 by JCIT, Indore.
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 2. As the issues raised in these appeals relates to same assessee and are common in nature, therefore, these were heard together and are being disposed off by this common order for the sake of convenience and brevity.
The assessee has raised following grounds of appeal in ITA No.262/Ind/2018: “GROUND I: PENALTY ORDER PASSED BY LD. JCIT - TDS, INDORE ("TDS OFFICER") IS BARRED BY LIMITATION U/S. 275 OF THE ACT: 1.On the facts and circumstances of the case and in law, the Hon'ble Commissioner of Income Tax - Appeals, ["the Hon'ble CIT(A)"], erred in upholding the order passed by the TDS Officer u/s. 271C of the Act which was barred by limitation u/s. 275 of the Act. 2.In doing so, the Hon'ble CIT(A) further erred in not adjudicating alternate legal without prejudice ground raised for the first time before the CIT(A). 3.The Appellant prays that the order passed under section 271C of the Act be annulled set aside as being bad in law. WITHOUT PREJUDICE TO GROUND I: GROUND II: LEVY OF PENALTY UNDER SECTION 271C OF THE ACT AMOUNTING TO RS 3,06,72,500/-: 1.On the facts and circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding the order passed by the TDS Officer in levying a penalty of Rs 3,06,72,5001- under section 271 C of the Act on the alleged ground that Appellant has failed to deduct TDS under section 194H of the Act in respect of discount allowed to prepaid distributors and there was no reasonable cause for such non deduction. 2. He failed to appreciate and ought to have held that: a)The Appellant had acted under a honest and bona-fide belief that
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 tax was not deductible under section 194H of the Act on 'discount allowed to the prepaid distributors' . b)Without prejudice, in absence of payment or credit, the Appellant not being a person responsible for paying income by way of commission to the prepaid distributors and amount on which tax ought to be deducted, the mechanism to deduct TDS fails. c)There was 'reasonable cause' for non-deduction of TDS in view of failure of machinery provisions as also fact that contrary views have been taken by High Courts and ITA T. 3.The Appellant therefore prays Ld. TDS Officer be directed to delete the aforesaid penalty of Rs 3,06,72,500/- levied under section 271C of the Income Tax Act. GROUND III: GENERAL The Appellant craves leave to add to, amends and 1 or alter the above ground of appeal at the time of hearing.
The assessee has raised following grounds of appeal in ITA No.263/Ind/2018: “GROUND I: PENALTY ORDER PASSED BY LD. JCIT - TDS, INDORE ("TDS OFFICER") IS BARRED BY LIMITATION U/S. 275 OF THE ACT: 1. On the facts and circumstances of the case and in law, the Hon'ble Commissioner of Income Tax - Appeals, ["the Hon'ble CIT(A)"], erred in upholding the order passed by the TDS Officer u/s. 271C of the Act which was barred by limitation u/s. 275 of the Act. 2. In doing so, the Hon'ble CIT(A) further erred in not adjudicating alternate legal without prejudice ground raised for the first time before the CIT(A). 3. The Appellant prays that the order passed under section 271C of the Act be annulled set aside as being bad in law. WITHOUT PREJUDICE TO GROUND I:
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 GROUND II: LEVY OF PENALTY UNDER SECTION 271C OF THE ACT AMOUNTING TO Rs.7,28,75,033/-: 1. On the facts and circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding the order passed by the TDS Officer in levying a penalty of Rs 7,28,75,033/-under section 271C of the Act on the alleged ground that Appellant has failed to deduct TDS under section 194H of the Act in respect of discount allowed to prepaid distributors and there was no reasonable cause for such non deduction. 2. He failed to appreciate and ought to have held that: a)The Appellant had acted under a honest and bona-fide belief that tax was not deductible under section 194H of the Act on 'discount allowed to the prepaid distributors' . b)Without prejudice, in absence of payment or credit, the Appellant not being a person responsible for paying income by way of commission to the prepaid distributors and amount on which tax ought to be deducted, the mechanism to deduct TDS fails. c) There was 'reasonable cause' for non-deduction of TDS in view of failure of machinery provisions as also fact that contrary views have been taken by High Courts and ITAT. 3. The Appellant therefore prays Ld. TDS Officer be directed to delete the aforesaid penalty of Rs.7,28,75,033/-levied under section 271C of the Income Tax Act. GROUND III: GENERAL The Appellant craves leave to add to, amends and/ or alter the above ground of appeal at the time of hearing.
The assessee has raised following grounds of appeal in ITA No.264/Ind/2018: GROUND I: LEVY OF PENALTY UNDER SECTION 271C OF THE ACT
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 AMOUNTING TO Rs.6,71,51,801/-: 1. On the facts and circumstances of the case and in law, the Hon'ble CIT(A) erred in upholding the order passed by the TDS Officer in levying a penalty of Rs 6,71,51,801/-under section 271C of the Act on the alleged ground that Appellant has failed to deduct TDS under section 194H of the Act in respect of discount allowed to prepaid distributors and there was no reasonable cause for such non deduction. 2. He failed to appreciate and ought to have held that: a)The Appellant had acted under a honest and bona-fide belief that tax was not deductible under section 194H of the Act on 'discount allowed to the prepaid distributors' . b)Without prejudice, in absence of payment or credit, the Appellant not being a person responsible for paying income by way of commission to the prepaid distributors and amount on which tax ought to be deducted, the mechanism to deduct TDS fails. c) There was 'reasonable cause' for non-deduction of TDS in view of failure of machinery provisions as also fact that contrary views have been taken by High Courts and ITAT. 3. The Appellant therefore prays Ld. TDS Officer be directed to delete the aforesaid penalty of Rs. 6,71,51,801/-levied under section 271C of the Income Tax Act. GROUND II: GENERAL The Appellant craves leave to add to, amends and/ or alter the above ground of appeal at the time of hearing.
Briefly stated facts as culled out from the records are that the assessee company is engaged in the business of providing cellular telephone network through a card called subscriber Identification Module (SIM). Pre-paid or post-paid connections were provided to the subscribers
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 through distributors called Pre-paid Market Associates (PMAs) appointed by the assessee. It offered discount on pre-paid calling services to its distributors. As per the agreement, the distributors were required to store the SIM cards and recharge coupons in such a way as to clearly indicate at all times that pre-paid SIM cards/recharge Coupons were owned by the assessee and they were not allowed to remove obscure or to delete the marks made on pre-paid SIM card/ recharge coupons. The distributors were not free to sell similar products offered by the competitors of the assessee-company. PMAs further appointed the retailers after the written approval of the assessee. The maximum price of SIM cards/recharge Coupons was also decided by the assessee. PMAs had to comply with all the requirements of the assessee in respect of invoicing and accounts, maintenance of brand image and to provide monthly sale reports and other information relating to the business. The assessee's representative could inspect the things or materials of the business which were the subject- matter of the agreement. Further, minimum performance targets for the distributors were also set by the assessee-company which reserved the right to terminate the agreement unilaterally. 7. On the basis of these facts and the types of control exercised by the assessee on its pre-paid distributors, the Assessing Officer came to the conclusion that these transactions between the assessee and pre-paid distributors were that of a principal and an agent at all times and, consequently, amount of discount offered to pre-paid distributors was in the nature of commission liable to tax deduction at source under section 194H. As the assessee was not deducting tax at source from the amount offered to its distributors, the Assessing officer treated it as a defaulter under section 201(1) consequently imposed penalty u/s 271C.
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 8. Against the levy of penalty u/s 271C of the Act appeal was preferred before the Ld. CIT(A) but assessee could not succeed. Now assessee is in appeal before the Tribunal for A.Ys. 2008-09 to 2010-11 raising following two common issues: i. Challenging the impugned order u/s 271C of the Act being barred by limitation u/s 275 of the Act. ii. Challenging the levy of penalty u/s 271C of the Act for non failure to deduct tax u/s 194H of the Act.
We will first take up the legal issue through which the assessee has challenged the validity of the impugned assessment orders passed u/s 271C of the Act contending that they are barred by limitation as provided in section 275 of the Act and the penalty orders deserves to be quashed and set aside. 10. In support of the legal ground Ld. counsel for the assessee reiterated the following submissions which were also given before the first appellate authority. “AS REGARDS GROUND NO.I FOR APPEALS OF ASSESSMENT YEAR 2007-08 TO ASSESSMENT YEAR 2009-10: PASSING OF ORDER BARRED BY LIMITATION U/S 275 OF THE ACT:
At the outset, the Appellant invite Your Honors attention to the proviso section 275(1)(a) of the Act, the relevant extract is reproduced as under: "Provided that in a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A, and he Commissioner (Appeals) passes the order on or after the 1st day of June, 2003 7
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 disposing of such appeal, an order imposing penalty shall be passed before the expiry of the financial year in which the proceedings in the course of which action for imposition of penalty has been initiated, are completed, or within one year from the end of the financial year in which the order of the Commissioner (Appeals) is received by the Chief Commissioner or Commissioner, whichever is later;" Thus, an order imposing penalty should have been passed within one year from the end of the financial year in which the order of CIT(A) is passed. As stated earlier, the CIT(A) passed the order confirming the action of the ITO only on February 22, 2010 for AY 2007-08, February 22, 2010 for AY 2008-09, and December 02, 2011 for A Y 2009-10. Thus order imposing penalty ought to have been passed within one year from the end of the financial year in which the proceedings in course of which penalty has been initiated. Thus the order under section 271C ought to have been passed by March 31, 2011 for AY 2007-08, March 31,2011 for AY 2008-09, and march 31 2013 for AY 2009-10. However in the Appellant's case the order under 271C was passed only on August 20, 2013 for AY 2007-08, August 20, 2013 for AY 2008-09, and august 20 2013 for AY 2009- 10, and thus it is time barred. In this connection, the Appellant would like to invite Your Honours attention to the decision of Mumbai Tribunal in case of Hongkong & Shanghai Banking Corpn. Ltd. Vs DDIT (136 ITD 3S7) (TMum) (Rejer page no. 1 to 13 of legal Paper book (LPB)) wherein the Hon'ble Tribunal has held as under: "Under section 275(1) the Assessing Officer will get time for finalizing the penalty proceedings if an appeal under section 253 was preferred by assessee or the revenue. As per section 275(1)( a) the time-limit for completion of the proceedings are six months from
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 the end of the month in which the order of the Commissioner (Appeals), or as the case may be of Appellate Tribunal is received by the Chief Commissioner or Commissioner. As per the record, the Tribunal order was dated 15-2-2007 and assessee received the order on 28-2-2007. The order would have certainly been received by the Chief Commissioner or Commissioner by the end of March, 2007. Therefore, six months time-limit for passing penalty order expires on 30-9-2007. The penalty order passed on 31-8-2009 was certainly barred by limitation" Considering the aforesaid decision, since the order of the CIT(A) was received by the Appellant on 08/03/2010 for AY 2007-08, 08/03/2010 for AY 2008-09, and 02/12/2011 for A Y 2009-10, the order would have certainly been received by the Chief Commissioner by March 31,2011and AY 2007-08, March 31,2011 for AY 2008-09, and March 31 ,2012 for AY 2009-10 and thus penalty order under section 271C ought to have been passed by March 2012 for AY 2007-08, March 31,2012 for AY 2008-09, and March 31, 2013 for A Y 2009-1O. However, if above is not accepted. Your Honour may verify from the office of Learned CIT when the order of the CIT(A) was received by the Chief Commissioner I Commissioner as the case may be. In view of the forgoing, contention and facts of the present case, the Appellant humbly request Your Honor that the said penalty order be quashed and set aside as barred by limitation.
Per Contra Ld. Departmental Representative (DR) vehemently argued supporting the order of Ld. AO.
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 12. We have heard rival contentions and perused the record placed before us. The assessee has raised a legal ground challenging the validity of the impugned penalty orders passed u/s 271C of the Act contending that they are barred by limitation provided u/s 275 of the Act. In the written submissions it has been submitted that the penalty order u/s 271C of the Act ought to have been passed latest by 31st March 2012 for A.Y. 2007-08, & A.Y. 2008-09 & by 31st March 2013 for A.Y. 2009-10 whereas the impugned orders were passed on 20th August 2017 for A.Y. 2007-08, 2008-09 & 2009-10.
We observe that the assessee has raised legal issue before the Ld. CIT(A) also. However Ld. CIT(A) dismissed the grounds of assessee merely by observing that no such objection was raised at the level of the Ld. AO. We are of the opinion that this being a legal ground should have been adjudicated by Ld. CIT(A) after examining the relevant records. Since this issue has not been dealt by Ld. CIT(A) by passing a speaking order, we are of the considered view that this legal ground needs to be set aside to the file of Ld. CIT(A) for afresh adjudication in accordance with law, after providing reasonable opportunity of being heard to the assessee to place relevant material on record in support of its submissions. 14. In the result common ground no.1 raised in three appeals for assessment years 2008-09, 2009-10 & 2010-11 are allowed for statistical purposes. 15. Apropos to common issue raised in ground no. 2 & 1 challenging the levy of penalty u/s 271(1)(c) of the Act levied at Rs.
Vodafone Idea Ltd. ITANo.262 to 264/Ind/2018 3,06,72,500/-, Rs.7,28,75,033/- & Rs. 6,71,51,801/- for A.Ys. 2008-09 to 2010-11 respectively, since we have allowed common ground No.1 for statistical purposes for examining the limitation issue of the order passed u/s 271C of the Act r.w. section 275 of the Act. Dealing with the issue on merit relating as to whether the lower authorities were justified in levying penalty u/s 271C of the Act we find it merely academic deal with this issue at this stage. Since the legal ground has been set aside to the file of Ld. CIT(A) as per the direction given hereinabove, we deem it proper to set aside the issue on merits also to the file of the Ld. CIT(A) for deciding afresh along with legal ground, thus, the common ground no.2 raised in these appeal is allowed for statistical purposes.
In the result, these three appeals of the assessee are allowed for statistical purposes. Order was pronounced in the open court on 25 .10.2019.
Sd/- Sd/- (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore; �दनांक Dated : 25/10/2019 ctàxÄ? P.S/.�न.स. Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file.
By order Assistant Registrar 11