IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 ITA.No. 83 of 2011() -------------------- AGAISNT ORDER DATED 25/01/2011 IN ITA.108/COCH/2009 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT / RESPONDENT ------------------------------ THE COMMISSIONER OF INCOME TAX (TDS), COCHIN. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ M/S. VODAFONE ESSAR CELLULAR LTD., XL/5115, ASHIS BUILDING, SECOND FLOOR, SHANMUGHAM ROAD.P.O, COCHIN - 682 031. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, ALONG WITH ITA NOS.85, 114 & 124 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ITA NO.83/2011 APPENDIX APPELLANT'S EXHIBITS ANNEXURE-A : COPY OF ORDER OF A.O. UNDER SECTION 201(1) DATED 30/07/2008 FOR THE ASSESSMENT YEAR 2005-06. ANNEXURE-B : COPY OF ORDER DATED 12/01/2009 OF THE COMMISSIONER OF INCOME TAX (APPEALS). ANNEXURE-C : COPY OF ORDER DATED 30/04/2009 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. ANNEXURE-D : COPY OF APPEAL MEMORANDUM FILED BEFORE THE HONOURABLE ITAT. ANNEXURE-E : COPY OF MISCELLANEOUS PETITION FILED BEFORE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. ANNEXURE-F : COPY OF JUDGMENT OF HONOURABLE HIGH COURT OF KERALA DATED 17/08/2010. ANNEXURE-G : COPY OF ORDER IN M.P. DATED 12/03/2010 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. ANNEXURE-H : COPY OF FRESH ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH DATED 25/01/2011. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & K.VINOD CHANDRAN, JJ. .................................................................... I.T.A. Nos.83, 85, 114 & 124 of 2011 .................................................................... Dated this the 22nd day of November, 2011. J U D G M E N T Ramachandran Nair, J. These are appeals filed by the Revenue challenging fresh orders issued by the Tribunal in appeals based on miscellaneous applications filed by the respondent assessee in the disposed appeals. Along with the appeals filed, the Revenue has also filed I.A.s seeking permission to raise certain additional questions of law, besides the questions raised in the main appeals. 2. We have heard learned Standing Counsel appearing for the Revenue and have gone through the orders impugned in the appeal. 3. After hearing the learned Standing Counsel for the Revenue and after going through the orders, what we notice is that the Tribunal has in principle upheld the authority of the Revenue to recover tax under Section 201(1) of the Income Tax ITA Nos.83, 85, 114 & 124 of 2011 2 Act (hereinafter referred to as the Act for short) for failure to deduct tax at source on payment of commission to distributors of the respondent assessee. The challenge before the Tribunal was against the demand of tax by the Department under Section 201(1) of the Act for assessee's failure to recover tax on the commission payments made to distributors. Even though the Tribunal upheld the department's claim, while granting relief the Tribunal directed that while raising demand under Section 201(1) of the Act, the Department should set off tax paid by the distributors on the income received by way of commission from the respondent assessee. In other words, the levy authorised by the Tribunal under Section 201(1) of the Act is only short recovery of tax by way of TDS over the tax paid by the distributors. We are of the view, Section 201(1) of the Act itself is only protective provision authorising the Department to recover tax from payers for default in recovery and payment of tax under Section 194H of the Act. The Scheme of deduction of tax at source by itself does not lead to any levy of tax and it is for ITA Nos.83, 85, 114 & 124 of 2011 3 the payees to file returns, claim adjustment of tax payable based on TDS certificates to be produced, and if any excess is collected at source, the payee can claim refund. Going by this scheme, recovery of tax under TDS is nothing but advance collection of tax in respect of income to be considered for assessment at the hands of the payees. So much so, we feel the direction of the Tribunal to recover only so much of the TDS short collected by the respondent assessee after adjusting payment of tax on commission payments made by the distributors does not in any way affect the interest of the Revenue. Consequently, we do not find any merit in the appeals filed by the Revenue. All these appeals are accordingly dismissed. (C.N.RAMACHANDRAN NAIR, JUDGE) (K.VINOD CHANDRAN, JUDGE) jg