2014 (12) TMI 1154 - AT - Income Tax

Penalty u/s 221 - Non deduction of TDS - held that - CIT (A) recorded that the assessee did not make any payment either in cash or in cheque, to PCL Projects Ltd, therefore, the question of deduction of TDS does not arise. It was THDC which made payments directly to Rithwik Projects Ltd. There is also a finding that M/s. THDC deducted the tax on the joint venture and that the joint venture admitted the gross receipts and took credit of TDS and claimed refund also. These facts are not disputed by the Revenue in the grounds of appeal - when the assessee has admittedly not paid any amount to M/s Rithwik Projects Ltd and when the assessee has accounted for only the commission, the question of the assessee deducting the tax at source does not arise - Decided against Revenue.

Summary

Issues Involved:
- Appeal against order u/s 201(1) and 201(1A)
- Cancellation of penalty u/s 221

Analysis:

Appeal against order u/s 201(1) and 201(1A):
The appeals by the Revenue were directed against the order passed by the ld CIT (A)-II, Hyderabad u/s 201(1) and 201(1A), along with the cancellation of penalty u/s 221. The AO observed that the assessee failed to deduct tax on contract works related to a hydro electricity project. The first appellate authority partially allowed the appeal. The Revenue raised grounds questioning the remittance back to the AO without producing necessary documents invoking a specific judgment. The AO also levied a penalty u/s 221, which was canceled by the ld CIT (A), leading to further grounds of appeal by the Revenue.

The factual findings revealed that the joint venture company executed a contract for a hydro electricity project in Uttaranchal. The joint venture subcontracted work to another entity, and it was confirmed that there was no evidence to substantiate this sub-contract work. It was noted that the joint venture did not make payments to the subcontractor directly, and the payments were made by the principal employer. The joint venture admitted gross receipts, took credit for TDS, and claimed refunds. The Revenue did not dispute these facts in the appeal.

Based on the factual matrix, where the joint venture did not make direct payments to the subcontractor and accounted for only the commission, the question of deducting tax at source did not arise. The Tribunal dismissed the appeal by the Revenue against the order passed u/s 201(1) as there was no merit. Consequently, in related appeals concerning interest u/s 201(1A) and penalty u/s 221, the Tribunal upheld the first appellate authority's decision and dismissed the Revenue's appeals.

Cancellation of Penalty u/s 221:
The ld CIT (A) canceled the penalty of &8377; 50 lakhs levied u/s 221 on grounds of financial constraints. The Revenue contended that the demand represented TDS made from payments to subcontractors, which were not remitted to the Government account. The ld CIT (A) was criticized for equating the demand for TDS with the tax on the assessee's income. The Tribunal dismissed the Revenue's appeal on the penalty, as it was based on the orders u/s 201(1) and u/s 201(1A), which were already upheld.

In conclusion, all the appeals filed by the Revenue were dismissed by the Tribunal, upholding the decisions of the first appellate authority and emphasizing the factual circumstances regarding subcontracted work, TDS deductions, and financial constraints as crucial factors in the judgment.