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TMI Blog2013 (3) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendment and the purpose which it seeks to achieve make it abundantly clear that it is a clarificatory amendment and would be applicable even in respect of assessment years prior to insertion of the said amendment. - Decided in favor of assessee. - ITA No.261 of 2012, ITA No.262 of 2012, ITA No.263 of 2012, ITA No.264 of 2012, ITA No.265 of 2012 - - - Dated:- 13-2-2013 - Hemant Gupta And Tejinder Singh Dhindsa,JJ. Mr. Yogesh Putney, Advocate for the appellant. JUDGMENT This order shall dispose aforementioned five appeals i.e. I.T.A Nos.261, 262, 263, 264 265 of 2012 arising out of an order passed by the Income Tax Appellate Tribunal on 23.03.2012 (Annexure A-III) pertaining to the assessment years prior to the inserti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of payment of such income in cash or by the issue of a cheque or draft or by any other mode. The assessee, a Government of India undertaking, has paid commission to STD/PCO franchises during the years under consideration without deduction of tax. The Assessing Officer found that the assessee has violated the mandate of Section 194H of the Act by not deducting tax at source. Consequently, the Assessing Officer made the assessee liable to pay the amount of tax as well as interest thereon. Such order was affirmed by the Commissioner of Income Tax (Appeals). The Tribunal examined the proviso inserted to Section 194H vide Finance Act, 2007 w.e.f. 01.06.2007. The said proviso reads as under: 194H. xx xx Provided also that no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is hardly any primary tax liability of the recipients of income. It is highly contentious an issue whether or not vicarious tax withholding liability can be invoked. As a matter of fact, the Central Board of Taxes has taken a stand that the demands are not to be enforced on BSNL and MTNL offices except in the cases where taxes have been deducted at source but not paid over to the revenue .. 8. The stand taken by the authorities below is thus contrary to the stand taken by the Central Board of Direct Taxes. While authorities below have taken a stand that the prospective amendment in Section 194 H, by itself, demonstrates that the taxes were required to be deducted at source in respect of PCO commission for earlier years, the Central Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability has to be supported by the clear provisions of statute. Revenue thus cannot derive any support from reliance on the circulars passed by the CBDT. Such order was followed by Pune Bench of the Tribunal in the assessment years 2006-07 and 2007-08 vide order dated 07.12.2011 as well. Similar view was taken by New Delhi Bench of the Tribunal in respect of assessee s own case for the assessment year 2002-03 in ITA No.3996/D/2004. We do not find that any substantial question of law arises for consideration, inter alia, for the reason that the Central Board of Direct Taxes vide circular dated 12.03.2008 has taken a stand that the demands are not to be enforced on BSNL and MTNL offices except in the cases where taxes have been deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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