TDS not to be deducted on transaction of sale

IN THE INCOME TAX APPELLATE TRIBUNAL,

MUMBAI BENCH “C”, MUMBAI

BEFORE SHRI R.S. SYAL (AM) SHRI AMIT SHUKLA (JM)

I.T.A. No. 3463/Mum/2008

DDIT (IT)-1(1),

R.No. 117, Scindia House, 1st floor,

Ballard Estate, N.M. Road,

Mumbai-400 038.

Appellant

Vs.

M/s. Avaya Global Connect Ltd.,

72, Kalpataru Synergy, Opp.

Grant Hyatt, Vakola, Santacruz

(E), Mumbai -400 055.

PAN: AAACT3992M

Respondent

Appellant by:  Shri Gopal Guruswami.

Respondent by:  Shri P.J. Pardiwalla.

Date of hearing: 29-03-2012

Date of pronouncement: 02-04-2012

O R D E R

PER R.S. SYAL, AM:

This appeal by the Revenue is directed against the order passed by the CIT(A) on 29-02-2008 u/s. 195(2) of the Act.

2. At the very outset, the ld. counsel for the assessee contended that the AO passed order u/s.195(2) treating the assessee as in default by considering the price of the product as fees for technical services. He took us through the impugned order in which the ld. CIT(A) has overturned the action of the AO by relying on the view taken by him in appeal No.93/06- 07/07-08. The ld. counsel invited our attention towards the order passed by the Tribunal in the assessee’s own case by which Revenue’s appeal against such order, followed in the impugned order, came to be dismissed. Copy of the said order dated 20-08-2010 in ITA No.1462 & 1463/Mum/2009 [u/s.195(2] was placed on record. In this case, the Tribunal held that the correct nature of transactions is sale of product and not any fees for technical services requiring deduction of tax at source. It was also submitted that the facts and circumstances of the instant appeal are identical to those considered and decided by the Tribunal in the aforenoted order. The ld. DR candidly accepted the position so stated on behalf of the assessee.

3. Having heard both the sides and perused the relevant material on record, it is observed that the Tribunal has accepted the assessee’s contention by holding that the payment so made was towards the price of the product and not any fees for technical services. In that view of the matter, there remains no requirement to deduct any tax at source from such payment. Since the facts of the instant appeal are admittedly similar to those already considered and decided by the Tribunal, respectfully following the precedent, we hold that the assessee cannot be saddled with any liability to deduct tax at source from the payments made under the present circumstances. We, therefore, uphold the impugned order.

4. In the result, the appeal is dismissed.

Order pronounced on the 02nd day of April, 2012.

                                                         Sd/-                              Sd/-

                                             (AMIT SHUKLA)           (R.S. SYAL)

                                       JUDICIAL MEMBER   ACCOUNTANT MEMBER

Mumbai: 02nd April, 2012.

NG:

Copy to:

1. Department.

2. Assessee.

3. CIT(A)-XXXI,Mumbai.

4. DIT (IT),Mumbai.

5. DR,”L” Bench,Mumbai.

6. Master file.

(TRUE COPY)

BY ORDER,

Asst. Registrar, ITAT, Mumbai.