9911796707
TMI Blog2019 (11) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ilding PJSC. The section 246A(1) and 248 of the I.T. Act, 1961 do not enable M/s. Abu Dhabi Ship Building to file the appeal against the order of Section 195(2) of IT Act." 3. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in not appreciating the fact mentioned in para 4 of order u/s. 195(2) that the income is accruing or arising in India". 4. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in not appreciating the fact that DTAA (between India and UAE) benefit is not available to the consortium". 5. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in not appreciating the fact the consortium is working through 'dependent agent' namely M/s. Abu Dhabi Ship Building PJSC and the dependent agent is a form of Permanent Establishment of Abu Dhabi Ship Building PJSC in India". 3. When the appeal was called for hearing, no one was present on behalf of the assessee to represent the case. From the order sheet entries it is notice that on earlier occasions also when the appeal was posted for hearing, no one was present on behalf of the assessee to represent the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding identical issue in respondent's case in assessment year 2013-14, the Tribunal has reversed the decision of learned Commissioner (Appeals). Thus, he submitted, the order passed by the Tribunal in the earlier assessment year would be squarely applicable. 6. We have considered the submissions of learned Departmental Representative and perused the material on record. A preliminary issue has been raised by the Revenue with regard to the maintainability of the appeal filed by the respondent company before learned Commissioner (Appeals). As could be seen from the impugned order of learned Commissioner (Appeals), he has decided the issue in favour of the assessee following the order passed by him in the earlier assessment year. Notably, while deciding Revenue's appeal against the order passed by learned Commissioner (Appeals) in assessee's own case in the assessment year 2013-14, the Tribunal in ITA no.5418/Mum./2013, dated 8th June 2016, has decided the issue in favour of the Revenue with the following observations:- "13. We have considered the submissions of the parties and perused the material available on record as well as the decisions relied upon by both the Counsels. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 195(2) as an appealable order. The only provision we could locate in the Act under which an appeal is provided before the learned Commissioner (Appeals) against an order passed under section 195 is section 248. However, an appeal under section 248 can only be filed by a deductor upon fulfillment of certain conditions laid down therein. 15. Keeping the aforesaid statutory provisions in view, if we examine the facts of the present case, it is evident that on 4th October 2012, Chief Manager (F&A), ONGC, Mumbai, made an application, purportedly under section 195(2) of the Act, before the Assessing Officer for an order of non-deduction of tax at source. The Assessing Officer, however, rejected the application filed by the ONGC under section 195(2) vide order dated 23rd November 2012. Undisputedly, neither the respondent assessee nor the consortium or the other constituent has approached the Assessing Officer for a no deduction of tax certificate in terms of sub-section (3) of section 195 or under section 197. Therefore, against the order passed under section 195(2) the payer / deductor i.e., ONGC could have filed an appeal under section 248 before the learned Commissioner (Appeals) pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal against an order under section 195 can be filed that too, by the payer / deductor of tax. Therefore, when there is a specific provision for filing appeal against an order u/s 195(2) by a specified person, the appeal before the first appellate authority can be maintainable only if it is filed in terms of the said provision and in no other manner. In the present case, facts on record indicate that after the order was passed under section 195(2) the payer / deductor i.e., ONGC has deducted tax at source on the payments made to the respondent and has remitted tax to the Government account. This is also evident from the letter dated 29th November 2012 of ONGC a copy of which is at Page-125 of the paper book. Further, at the time of hearing, we were informed by the Counsels appearing for the parties that assessment in case of the respondent has also been made in the meanwhile and the proceedings are pending before the appellate authority. Therefore, in our view, the course open to the assessee is to deny its liability to be assessed under the Act in such proceedings and claim refund of the amount deducted at source from its receipts / income. As far as the decisions relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to collect tax at source. Though, order passed under section 206C was not specifically mentioned under section 246, however, the Tribunal took a view that the expression "assessee denies his liability under the Act" would make the order appealable under section 246(1). 19. Thus, from the aforesaid facts, it is clear that an order was passed against the assessee raising a demand, despite the assessee denying its liability to be assessed under the Act. However, in case of the assessee before us there is no such situation of demand being raised against the assessee. As reiterated earlier, the order challenged before the first appellate authority by the respondent is an order passed under section 195(2) of the Act directing the ONGC to deduct tax at source. Thus, there is neither any order against the assessee nor there is determination of chargeability to tax under the Act. 20. In case of Kanpur Coal Syndicate (supra), the issue is completely different as it dealt with power of the learned Commissioner (Appeals) or the Tribunal in disposing of the appeal. Facts of the case are, the Assessing Officer made an assessment in the name of an Association Of Persons (AOP). The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
