TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 99
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....ncome-tax Act. 5 1136/Hyd/2015 2010-11 ITA No. 0031/CIT(A)-X/2014-15, 19/06/2015 U/s 163 of the Income-tax Act. 6 1137/Hyd/2015 2011-12 ITA No. 0032/CIT(A)-X/2014-15, 19/06/2015 U/s 163 ) of the Income-tax Act. 7 1138/Hyd/2015 2012-13 ITA No. 0033/CIT(A)-X/2014-15, 19/06/2015 U/s 163 of the Income-tax Act. 1139/Hyd/2015 2009-10 ITA No. 0030/CIT(A)-X/2014-15, 19/06/2015 U/s 163 of the Income-tax Act. Heard both the parties. Case files perused. 2. The Revenue's appeals ITA Nos. 1132, 1133, 1134, 1135, 1136, 1137, 1138 & 1139/H/2015 raise the following identical substantive grounds:- "1. The learned CIT(A) erred in law in entertaining and deciding the appeal (No.36/2014-15 instituted on 11-4-2014) when another appeal (No.156/201314) had earlier been instituted on 17-04-2013 against the same order of the AO and in deciding the two appeals by two separate orders on the same date i.e,19-06-2015. 2. The learned CIT (A) erred in law in entertaining and adjudicating an appeal which had been instituted beyond the prescribed time limit and even though delay was not condoned. 3. The learned CIT(A) erred in fact and on law in not appreciating that M....
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....ed our attention to the CIT(A)'s detailed discussion accepting the assessee's contentions challenging invocation of section 163 proceedings by the Assessing Officer; as under: "The appellant is a Joint venture of Madhucon properties Ltd. and Sino Hydro corporation, China (previously known as China National water Resources and Hydro Engineering). The said JV is constituted by the above mentioned two companies for bidding various developmental works for Government of Andhra Pradesh and other Governmental organizations. According to the Joint venture Agreement, the Sino Hydro corporation is a lead partner and shall be responsible in participation of bids. It shall also participate in the contract works undertaken by the JV* It is also agreed by both the concerns that the share of Indian company shall be 98% and whereas the Sino Hydro shall be entitled for a share of 2%. The JV is successful bidder for a number of projects and obtained the contract works. The Sino Hydro provided the technical data to the JV and also provided other Engineering services as per the Joint Venture agreement. The JV paid 2% of the contract amount to Sino Hydro. At the time of payment, the JV deducted tax ....
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....o in the developmental activity is towards providing all designs etc. and is entitled to receive 2% of the amount sanctioned by the Government. The other activities to be undertaken by Syno Hydro are also enumerated in the agreement. For the assessment year 2006-07, the JV was awarded works of the value of Rs. 135,69,37,509/- by the Government of Andhra Pradesh out of which works worth of Rs. 132,97,60,010/- was allotted to Madhucon Projects Ltd., and the works of the value of Rs. 2,71,77,499/- is entrusted to the Syno Hydro. The Assessing Officer while completing the assessment of the JV held that the amounts paid to the constituent of the JV i.e. Madhucon Private Limited and Sino Hydro are not allowable as tax was not deducted at source. The JV filed appeals and the matter was decided by the Hon'ble ITAT in ITA Nos.646/2010 and 701/2010. It was held that tax need not be deducted at source by the JV for the payments made to its constituents. However, the Hon'ble ITAT observed that the person responsible for making the payment to the non resident may be proceeded against as per law if the Chinese company did not offer this amount as part of the taxable income in India....
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.... in 311 ITR 266. Therefore, the appellant submits that the order is not valid. The appellant submits that the Chinese Company i.e, Sino Hydro Corporation was allotted PAN AACCC0705F. The DDIT (International Taxation),New Delhi issued a letter to the said company on 27.02.2003; the Dy. Registrar of Companies, NCT of Delhi and Haryana issued a Certificate of Establishment of Place of Business in India vide Certificate dated 13.06.2003. The Registrar of Companies, Delhi & Haryana, Government of India wrote a letter with regard to compliance of Sec. 593 of the Companies Act, 1956 on 20.01.2004. The Reserve Bank of India, Exchange control Department, New Delhi permitted the State Government to open Project Office at New Delhi to execute the contract. According to Art.7 of the DTAA between India and China, if the company has permanent establishment in India, the income is taxable in India. In view of the above, the appellant submits that the foreign company Sino Hydro, China ties: a permanent place of establishment in India and, therefore, there is no requirement of passing an order u/s 163 of the I. T. Act. The appellant is submitting copies of the challans for payment of....
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....9-2003. 9. Copy of the Certificate with regard to name change of China National Water Resources and Hydro Engineering Corporation to Sino Hydro corporation. All the above information was filed by the appellant before the Assessing officer and also before me. A perusal of the above documents indicates that the appellant was having permanent establishment in India and is registered u/s 592 of the Companies Act in India. Sino Hydro is having permanent establishment in India and is assessable to tax on the income derived in India. There is no requirement for treating the JV as an agent. I also find that the JV deducted tax at source at 10% of the gross amount paid and remitted the amounts to the Government account. The ITAT, Hyderabad in the case of DCIT Vs PVP ventures Ltd. in ITA No.1158 to 1162/2010 dated 31.7.2013 held that wherever the tax was deducted at source, the Assessing officer shall not treat the deductor as the agent. In the case of the appellant, I find that deduction of tax was property made and the adequacy of tax deducted is not the subject matter of any proceedings. In view of the above, I find that contentions of the appellant are to be accepted. I hold ....