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TMI Blog2018 (11) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... ered exparte and the above earlier decision of the Tribunal in that assessee’s own case was not referred before it. As held in M/S. HINDUSTAN COCA COLA BEVERAGE PVT. LTD VERSUS CIT [2007 (8) TMI 12 - SUPREME COURT OF INDIA] the non-consideration of Co-ordinate Bench decision can render the order of tribunal liable to rectification of mistake apparent from record. Accordingly adhering to the doctorine of stare decisis, we follow the Tribunal’s decision in similar case for the A.Y.2011-12. Hence, accordingly, we remand the matter to the file of the authorities below with same directions as in the aforesaid order to examine the applicability of section 194J. Both the counsel fairly agreed with this proposition - Appeals filed by the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or modify any of the above grounds as and when advised. 3. Since the facts are identical, we are referring to the facts and figures from A.Y.2011-12. Assessee has also filed an additional ground which reads as under:- The Ld AO / Ld CIT (A) has failed to appreciate that following judgement of Hindustan Coca Cola Beverages pvt. ltd. v/s CIT 293 ITR 226, the appellant cannot be called on to pay the tax when the tax has directly paid by the dedicatees (Sea Farers) and they have filed their respective return of income, accordingly up-to that extent the appellant should not be treated as assessee in default within the meaning of sec 201(1) 201(1A) of the Income tax act 1961. The appellant pray to the Hon'ble bench to issue ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove order, assessee appealed before the learned CIT(A). Learned CIT(A) held that from the facts of the record it was found that the services rendered by the parties to the assessee to be qualifying in the nature of fees for professional services and payment made was liable for tax deduction u/s.194J. However, learned CIT(A) accepted assessee s argument that if the deductees have paid the taxes, the assessee cannot be considered as assessee in default . Hence, learned CIT(A) directed the AO to make the computations applying the ratio of the decisions of Hon ble Supreme Court in the case of M/s. Hindustan Coca Cola Beverage Private Limited. 6. Against the above order, assessee is in appeal before us. We have heard both the Counsel and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of sec. 194J would apply to the facts and circumstances of the case, in our opinion, is not substantiated. Under these set of facts, we are of the view that this issue requires fresh examination. Accordingly we set aside the order passed by Ld CIT(A) and restore the issue to the file of the AO for examining the same afresh. We also direct the AO to give the benefit of 3rd proviso to sec. 201(1) of the Act to the assessee. 7. Furthermore, he has submitted that in the similar issue in the case of Doehle Dauntic India Pvt. Ltd., in ITA No.4277/Mum/2015 vide order dated 24/07/2017 for A.Y. 2012-13, the Tribunal had found that services were covered u/s.194J in an exparte order wherein the above order of the Tribunal was not bro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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