Principal Commissioner Ofincome Tax, Central-1, Kolkata v. M/S. Metalind Pvt. Ltd

ITAT/276/2022IA No.GA/1/2022GA/2/2022 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX, CENTRAL-1, KOLKATA -Versus- M/S. METALIND PVT. LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 6[th ]February, 2023 Appearance :Mr. Prithu Dudheria, Adv.…for the appellant.Mr. S. M. Surana, Sr. Adv.Mr. Bhaskar Sengupta, Adv.…for the respondent. The Court : We have heard Mr. Prithu Dudheria, learnedstanding counsel for the appellant/revenue and Mr. S.M. Surana,learned senior counsel assisted by Mr. Bhaskar Sengupta,learned Advocate for the respondent/assessee.There is a delay of 1209 days in filing the appeal. Wehave perused the affidavit filed in support of the applicationfor condonation of delay as well as the affidavit-in-opposition filed by the respondent/assessee. Though the certified copy ofthe order passed by the Tribunal was received by the Departmenton 2[nd] May, 2019, but the appeal was preferred before thisCourt on 21[st] December, 2022. On perusal of the dates and events given by therevenue, we find that there is no proper explanation for theinordinate delay. That apart, at the request made by thelearned Advocates for the parties, we have also perused theorder impugned before us and we find that the learned Tribunalconsidered the factual position and held that the PrincipalCommissioner of Income Tax should have made at leastpreliminary enquiry with regard to the claim of the assesseethat the payment in question is reimbursement of expenditure toits joint venture partner and hence, no TDS needs to be made.The Tribunal rightly noted the decision of the Hon’ble SupremeCourt in G.E. India Technology Centre v. CIT reported in 327ITR 456 (SC) and held that when there is element of income inremittance, no deduction of tax at source need to be made.Thus, in absence of any preliminary enquiry by thePCIT, the learned Tribunal was justified in allowing theassessee’s appeal.In the result, the application for condonation of delay(IA No.GA/1/2022) is dismissed and the appeal (ITAT/276/2022)stands rejected. Consequently, the connected application for stay (IANo.GA/2/2022) also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s./S.Das