2015 (12) TMI 1846 - AT - Income Tax

TDS u/s 194J - Disallowing the expenses on account of violation of the provisions of TDS - payment from the party/ organizers for the artistes - assessee submitted that she is acting as a co-ordinator between artists and the organizer for arranging musical programmes - HELD THAT - The assessee receives the payments from the organizers after TDS and make over the negotiated amount without TDS since the appellant is representing and acting for and on behalf of the organizers. All the artistes are very famous, widely acclaimed and have themselves furnished declaration with PAN that they will be directly responsible for their respective tax matters and one of them, Alka Yagnik even unequivocally stated that she had already paid income tax on such income. DR vehemently relied on the orders of authorities below. We find from the aforesaid discussion that AO disallowed the expenses claimed by assessee due to violation of provision to Sec. 194-J of the Act. The argument of the assessee that the recipient of income has paid the tax in their respective hands has also been regarded. However, we find that there is an amendment in proviso to Sec. 40(a)(ia) r.w.s. 1st proviso to Sec. 201, wherein, if any payee has paid the taxes by offering / disclosing the said receipt in his / her return of income, then the payer (the assessee herein) should not be treated as assessee in default and no disallowance u/s/. 40(a)(ia) of the Act could operate in that scenario. As relying on Ansal Land mark Township (P) Ltd. 2015 (9) TMI 79 - DELHI HIGH COURT we deem it fit and appropriate in the interest of justice and fair play to set aside this issue to the file of Assessing Officer to decide the issue afresh in the light of the aforesaid judgment to ensure whether the deductee has paid taxes on their income. Accordingly, we direct the Assessing Officer to verify whether the payees have included the subject mentioned receipts in their respective returns and paid taxes thereon or not. If that is so, then disallowance u/s. 40(a)(ia) of the Act shall not be made in the hands of the assessee. Accordingly, the ground raised by assessee is allowed for statistical purposes.

Summary

Issues Involved:
1. Disallowance of expenses due to violation of TDS provisions under Section 194-J of the Income Tax Act.
2. Applicability of the Supreme Court judgment in the case of Hindusthan Coca Cola Beverage Pvt. Ltd. vs. CIT.
3. Retrospective application of the second proviso to Section 40(a)(ia) of the Income Tax Act.

Detailed Analysis:

1. Disallowance of Expenses Due to Violation of TDS Provisions Under Section 194-J:
The assessee, an individual running a business entity, organized cultural and musical events and acted as a coordinator between artists and organizers. The assessee received payments from organizers and remitted them to the artists without deducting TDS, believing that they were acting in a representative capacity. The Assessing Officer (AO) disallowed expenses amounting to Rs. 25,91,026/- for non-deduction of TDS as required under Section 194-J of the Income Tax Act.

The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, emphasizing that the business arrangement between the parties had all the ingredients of a contract, whether written or oral, and thus fell under the purview of Section 194-J. The CIT(A) rejected the assessee's argument that there was no contractual relationship requiring TDS deduction and confirmed the addition of Rs. 25,91,026/- to the total income of the assessee.

2. Applicability of the Supreme Court Judgment in Hindusthan Coca Cola Beverage Pvt. Ltd. vs. CIT:
The assessee argued that the CIT(A) failed to consider the Supreme Court judgment in Hindusthan Coca Cola Beverage Pvt. Ltd. vs. CIT, which stated that no further tax could be recovered from the deductor if the deductee had paid the tax. However, the CIT(A) found that the facts of the Coca Cola case were different, as the assessee in that case had made an honest violation of TDS provisions, whereas the current case involved a gross violation with no proof that the deductee had paid the tax. The CIT(A) concluded that the Coca Cola judgment had limited applicability and could not be applied to the assessee's case.

3. Retrospective Application of the Second Proviso to Section 40(a)(ia):
The assessee contended that the recipients of the income had paid taxes on their respective incomes, and thus, the disallowance under Section 40(a)(ia) should not apply. The Tribunal referred to the amendment in the proviso to Section 40(a)(ia) read with the first proviso to Section 201, which states that if the payee has paid the taxes by disclosing the receipt in their return of income, the payer should not be treated as an assessee in default. The Tribunal noted that the Delhi High Court in CIT v. Ansal Landmark Township (P) Ltd. held that the second proviso to Section 40(a)(ia) is retrospective in nature.

Respectfully following the Delhi High Court's decision, the Tribunal set aside the issue to the AO to verify whether the payees had included the receipts in their returns and paid taxes. If confirmed, no disallowance under Section 40(a)(ia) should be made. The appeal was allowed for statistical purposes.

Conclusion:
The Tribunal directed the AO to verify the tax payments by the payees and apply the retrospective proviso to Section 40(a)(ia) accordingly. The appeal was allowed for statistical purposes, providing relief to the assessee based on compliance with the amended TDS provisions.