ORDER
1. These eleven appeals by the two assessees are directed against the orders passed by the Commissioner of Income-tax (Appeals) on December 31, 2001, in relation to the assessment years 1989-90 to 1997-98 except 1994-95 in relation to the District Excise Officer, Muzaffarnagar, and in relation to the assessment years 1994-95 to 1996-97 for the District Excise Officer, Saharanpur. Since all these appeals are based on identical facts and common grounds of appeal, we are therefore proceeding to dispose of these appeals by a consolidated order for the sake of convenience.
2. The grounds of appeal raised by assessee, District Excise Officer, Muzaffarnagar, with regard to the assessment year 1989-90 are as under :
“1. That on the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred in not following the order of the Income-tax Appellate Tribunal dated August 1, 2001, in I. T. A. No. 3226/Delhi of 1996 for the financial year 1993-94 in the case of the appellant and in the I.T.A. Nos. 376, 377, 378 and 379/DeIhi of 1997 in the case of District Excise Officer, .Dehradun, wherein it is held that the provisions of Section 206C are not applicable to the present case.
2. That on the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) has committed contempt of the order of the Tribunal dated August 1, 2001, which was binding on her.
3. That on the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred even on merits in confirming the orders of the Income-tax Officer (TDS), Muzaffarnagar, for the financial years 1988-89, 1989-90, 1990-91, 1991-92, 1992-93, 1994-95, 1995-96 and 1996-97 (corresponding to the assessment years 1989-90 to 1993-94 and 1995-96 to 1997-98) because the provisions of Section 206C of the Act are not applicable to the appellant’s case.
4. That on the facts and circumstances of the case, the Commissioner of Income-tax (Appeals) erred in confirming even those orders of the Income-tax Officer (TDS), Muzaffarnagar, for the financial years 1991-92,1992-93,1994-95 and 1995-96 which were passed in pursuance of an order under Section 263 by the Commissioner of Income-tax (Appeals), Meerut, while the order of the Commissioner of Income-tax, Meerut, stood cancelled by the Income-tax Appellate Tribunal much earlier in I. T. A. Nos. 5326 to 5329 of 1997, dated September 10, 2001.”
3. Identical ground mutatis mutandis have been raised for other years.
4. Similarly the grounds of appeal for the assessment year 1994-95 by the District Excise Officer, Saharanpur, are as under :
“1. That, on the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred in not following the order of the Income-tax Appellate Tribunal dated August 1, 2001, in Income-tax Appeal No. 3226/Delhi of 1996 for the financial year 1993-94 in the case of the appellant and in I. T. A. Nos. 376, 377, 378 and 379/Delhi of 1997 in the case of District Excise Officer, Dehradun, wherein it is held that the provisions of Section 206C are not applicable to the present case.
2. That on the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) has committed contempt of the order of the Tribunal dated August 1, 2001, which was binding on her.
3. That on the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) erred even on merits in confirming the orders of the Income-tax Officer (TDS), Saharanpur, for the assessment years 1994-95, 1995-96 and 1996-97 because the provisions of Section 206C of the Act are not applicable to the appellant’s case.”
5. Identical grounds mutatis mutandis have been raised for other two years.
6. Briefly stated the facts of these cases are that the Income-tax Officer (TDS), while considering the provisions of Section 206C held that these assessees had not collected tax at source partly for wholly on nirgam mulya. He therefore held both the assessees in default for short collection of tax and also charged interest under Section 206C(7). The action of the Assessing Officer was echoed by the Commissioner of Income-tax (Appeals) for all the years under consideration.
7. Before us learned counsel for the assessees submitted that the issue involved in these appeals was no more res Integra in view of the fact that the Tribunal in the first assessee’s own case for the assessment year 1994-95 vide its order in I. T. A. No. 3226/Delhi of 1996, after considering various aspects has decided this issue in assessee’s favour by overturning the Commissioner of Income-tax (Appeals) order. The copy of the said order was placed for consideration by the Bench. On merits also learned counsel contended that the Department was seeking collection of tax at source on basic licence fee which had no connection with the actual purchase by the contractors but was in the nature of licence to carry on the operations. Reliance was placed on the judgment of the Allahabad High Court, being the jurisdictional High Court, in the case of Suresh Chander and Ors., a copy placed at pages 74 to 84 of the paper book to contend that the nirgam mulya or basic licence fee was the same thing as “issue price” which the High Court has held was the consideration for the grant of privilege to sell liquor drawn or undrawn. Placing reliance on the decision of the apex court in the case of Union of India v. Om Prakash S. S. and Co. [2001] 248 ITR105, learned counsel contended that the payment of licence fee did not entitle the licensee to purchase goods and hence fell beyond the purview of the provisions of Section 206C. It was asserted that since the assessment year 1994-95 was already adjudicated upon by the Tribunal, the other assessment years should follow the same fate. Reliance was placed on certain decisions in support of the principle of consistency and it was urged that no different view could be taken when there was no variation in the facts of the case already decided by Tribunal.
8. In the opposition the learned Departmental Representative contended that the basic licence fee on which the Department was seeking to collect tax at source was different from the licence fee. On a particular query raised from the Bench it was submitted by the learned Departmental Representative that the District Excise Officer representing the State Government had not purchased liquor from the distillers and hence he was only a via media for the sale by the distillers to the retail contractors.
9. After hearing the rival submissions in extenso and perusing the relevant material on record, we find that no liability can be fastened on the assessees in question on the basic licence fee in view of the fact that they were not the sellers to the retail contractors and the basic licence fee was not the part of purchase price to be handed over to the distillers in consideration of their sale. Therefore, the question of collection of tax at source thereon does not arise. The Tribunal in the aforecited case has considered various aspects of the matter and after giving due consideration came to the conclusion that the assessee was not liable to be treated as in default under Section 206C and hence could not be saddled with interest liability under Section 206C(7). Respectfully following the precedent, we reverse the finding of the Commissioner of Income-tax (Appeals) in respect of both the assessees in all the years under consideration.
10. In the result, all the appeals are allowed.