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TMI Blog2014 (1) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... not required to pay advance tax, as the advance tax payable by the tax payer is to be calculated, by reducing the tax on current income, by the amount of tax which would be "deductible or collectable" at source under the Act, during the said F.Y – Relying upon Director of Income Tax vs. Jacabs Civil Inc. [2010 (8) TMI 37 - DELHI HIGH COURT]. If the person (payer) who had to make payments to the non-resident had defaulted in deducting the tax at source from such payments, the non- resident is not absolved from payment of taxes thereupon - the non-resident is liable to pay tax and the question of payment of advance tax would not arise - This would be clear from the reading of Section 191 of the Act along with Section 209 (1) (d) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India in the form of G.E.India Industrial P.Ltd. (GEIIPL). 3.1. The Assessing Officer attributed profit to the Permanent Establishment and brought the same to tax. Interest was levied u/s 234A and S. 234B of the Act. Aggrieved the assessee carried the matter in appeal. 4. The Ld.Commissioner of Income Tax (Appeals) disposed of all the appeals by two consolidated orders dt. 30.9.2010 and 2.11.2010. He confirmed the action of the Assessing Officer on the issues of: (a) reopening of assessments; (b) existence of Permanent Establishment; and (c) attribution of profits to the Permanent Establishment. On the issue of levy of interest u/s 234B of the Act, the Ld.Commissioner of Income Tax (Appeals) followed the binding judgement of the Jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and on perusal of the papers on record and orders of the authorities below, as well as case laws cited, we hold as follows. 8. Interest u/s 234B is levied for the failure to pay advance tax as per the provisions of S.208 and 209 of the Act. All the assesses in these cases, are non-resident companies. The assessees's case is that, if the Assessing Officer's stand that the Revenues received by these G.E.Overseas Entities are held as liable to tax in India, then, as per S.195 of the Act, the payers of such income were under an obligation to deduct tax at source and consequently, in terms of pre-amended S.209(I)(d) of the Act, the assessee was not required to pay advance tax, as the advance tax payable by the tax payer is to be calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calculated under clause (a) or clause (b) or clause (c) shall, in each case, be reduced by the amount of income-tax which would be deductible or collectible at source during the said financial year under any provision of this Act from any income (as computed before allowing any deductions admissible under this Act) which has been taken into account in computing the current income or, as the case may be, the total income aforesaid; and the amount of income-tax as so reduced shall be the advance tax payable." 8. This clause categorically uses the expression "deductable or collectable at source" and it is this clause which is incorporated by the Uttaranchal High Court in the said judgment (supra) in the manner already pointed above. The sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to charge any interest under Section 234B of the Act. 9. We thus, answer the aforesaid question in favour of the assessee as we are of the opinion that the Tribunal has rightly held that the assessee was not liable to pay any interest under Section 234B of the Act following the judgments of the Uttaranchal and Bombay High Courts." 9.1. The Ld.CIT(A) followed this binding decision of the Jurisdictional High Court. The jdugement of Hon'ble Supreme Court in the case of CIT vs. Anjum 252 ITR 1 relied upon by the Ld.D.R. has been considered by the Jurisdictional High Court in the case of Jacabs Civil Inc. (supra). Thus we find no infirmity in the order of the First Appellate Authority. Hence we uphold the same. 10. In the result the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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