TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 394
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act, 1961 (for short 'the Act'). 2. Brief facts of the case are that the assessee filed its return of income for the AY under consideration declaring total income of Rs. 421,94,16,450/-. The Assessing Officer (AO) completed the assessment under section 143(3) of the Act and determined the total income of the assessee at Rs. 425,26,99,804/- under the normal provisions of law after inter alia making addition of Rs. 270.81 lakhs under section 40(a)(ia) of the Act disallowing secondment charges, addition of Rs. 30,00,000/- on account of compensation receivable from customers on accrual basis and Rs. 34,53,96,83,301/- as per section 115JB of the Act. The assessee challenged the assessment order before the ld. CIT(A). The ld. CIT(A) after heari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....decision of the ITAT in assessee's own case ITA No. 3461/MUM/2016 for the assessment year 2011-12. The ld. Counsel further submitted that since ITAT has decided the identical issues in favour of the assessee, there is no merit in the appeal of the revenue. 5. The Departmental Representative (DR) fairly admitted that both the issues are covered in favour of the assessee by the decision of the Tribunal in assessee's own case for the AY 2011-12, however, supported the order passed by the AO. 6. We have perused the material on record including the decision of 'D' Bench of the Tribunal rendered in the assessee's own case for the AY 2011-12. We notice that the 'D' Bench of the Tribunal has dismissed the identical issue raised by the revenue wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o augment and curb bogus payments. Moreover, though section 194J was inserted with effect from July 1, 1995, till the assessment year in question that is the assessment year 2005-06 both the Revenue and the assessee proceeded on the footing that section 194J was not applicable to the payment of transaction charges and accordingly during the period from 1995 to 2005 neither the assessee has deducted tax at source while crediting the transaction charges to the account of the stock exchange nor the Revenue has raised any objection or initiated any proceedings for not deducting the tax at source. In these circumstances, if both the parties for nearly a decade proceeded on the footing that section 194J is not attracted, then in the assessment ye....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssee were under the bona fide belief for nearly a decade that tax was not deductible we at source on payment of transaction charges, no fault can be found with the assessee in not deducting the tax at source in the assessment year in question and consequently disallowance made by the Assessing Officer under section 40(a)(ia) of the Act in respect of the transaction charges cannot be sustained. We make it clear that we have arrived at the above conclusion in the peculiar facts of the present case, where both the Revenue and the assessee right from the insertion of section 194J in the year 1995 till 2005 proceeded on the footing that the assessee is not liable to deduct tax at source and in fact immediately after the assessment year in questi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this issue of revenues' appeal. Respectfully following the order of coordinate bench, we dismiss the ground no. 1 raised by the revenue." 8. We further notice that the coordinate Bench has decided this issue in favour of the assessee by following the order of the coordinate Bench passed in the assessee's own case for the A.Y. 2009-10. Since, the coordinate Bench has decided the identical issue in favour of the assessee in assessee's own case referred above, we respectfully following the decision of the coordinate Bench decide this issue in favour of the assessee and dismiss ground No. 1 of the revenue's appeal." 7. Since this Bench has already decided the identical issue in favour of the assessee by following the decisions of the coordin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the file of the AO that will suffice the matter. On query from the bench, Id. Sr. DR has not objected to the stand of the assessee. Hence, we direct the AO to decide the issue in terms of the principles laid down in the order passed in ITA No. 6832/Mum/2011 for Asst. Year 2008-09 vide order dated 27.02.2013. This issue of revenue's appeal is allowed for statistical purposes." 11. In view of the above, we are inclined to send the issue back to the file of the AO to decide the matter afresh in terms of ratio laid down in ITA No. 6832/Mum/2011 (supra). Accordingly, the ground is allowed for statistical purposes." 10. In view of the fact that the coordinate Bench has send the identical issue back to the file of AO for fresh adjudication ....