2024 (1) TMI 853 - AT - Income Tax

Short deduction of TDS - payments made to doctors - TDS provisions u/s 194J or 192 - proceedings u/s 201(1) / 201(1A) of the Act were initiated on the assessee and differential rate of TDS was sought to be collected from the assessee by treating it as assessee in default - HELD THAT - CIT(A) observed that the same issue had already been decided in favour of the assessee by this Tribunal 2015 (5) TMI 931 - ITAT DELHI for Asst Year 2009-10 and accordingly held that the payments to doctors would be covered only u/s 194J and not u/s 192 of the Act. We find that the relief has been granted by the ld. CIT(A) by following the Tribunal order passed in assessee‟s own case for the Asst Year 2009-10 referred supra. We also find identical view has been taken for Asst Year 2011-12 by this Tribunal 2017 (10) TMI 681 - ITAT DELHI . Hence we do not find any infirmity in the order passed by the ld. CIT(A) in this regard. Accordingly, the Ground Nos. 1 to 3 raised by the revenue are dismissed. Applicability of TDS provisions in respect of provision for expenses made at the end of the year - assessee treated as assessee in default u/s 201(1) - HELD THAT - Once there is a categorical finding that the assessee had not credited the corresponding liability for expenses to the account of the concerned vendors who had rendered the services, the payees become non-identifiable and hence there is no question of applicability of TDS provisions on the same. Merely because the assessee had voluntarily disallowed the expenses u/s 40(a)(ia) of the Act in the return, the same would not automatically enable the ld. AO to treat it as assessee in default u/s 201(1) of the Act and consequentially levy interest u/s 201(1A) of the Act. The provisions of section 40(a)(ia) and section 201(1) / 201(1A) of the Act are mutually exclusive. In any case, there is no estoppel against the statute. We find that the issue in dispute is squarely addressed by the Co-ordinate Bench of Delhi Tribunal in the case of HT Mobile Solutions Limited vs JCIT (OSD) 2023 (5) TMI 1212 - ITAT DELHI to hold that the assessee cannot be treated as assessee in default u/s 201(1) of the Act and no interest is chargeable u/s 201(1A) of the Act on the same. Decided in favour of assessee.

Summary

Issues Involved:
1. Delay in filing Cross Objections by the assessee.
2. Applicability of TDS provisions under sections 194J vs 192 of the Income Tax Act.
3. Applicability of TDS provisions on year-end provisions for expenses and the treatment of the assessee as "assessee in default" under sections 201(1) and 201(1A).

Summary:

1. Delay in Filing Cross Objections:
The Tribunal condoned the delay of 15 days in filing Cross Objections by the assessee, considering the reasons provided in the condonation petition.

2. Applicability of TDS Provisions under Sections 194J vs 192:
The revenue challenged the CIT(A)'s decision that payments to doctors should be covered under section 194J (TDS on professional fees) instead of section 192 (TDS on salary). The Tribunal upheld the CIT(A)'s decision, referencing the assessee's own case for the assessment year 2009-10 and 2011-12, where it was consistently held that such payments fall under section 194J. Consequently, the grounds raised by the revenue on this issue were dismissed.

3. Applicability of TDS Provisions on Year-End Provisions for Expenses:
The revenue and the assessee contested the applicability of TDS provisions on year-end provisions for expenses. The assessee had voluntarily disallowed the expenses under section 40(a)(ia) in its revised return, arguing that the payees were not identifiable at the year-end. The CIT(A) agreed with the assessee, noting that the AO's remand report confirmed the non-identifiability of payees. However, CIT(A) still held the assessee liable for interest under section 201(1A). The Tribunal, referencing jurisdictional precedents, concluded that the assessee cannot be treated as "assessee in default" under section 201(1) and no interest is chargeable under section 201(1A). Therefore, the grounds raised by the revenue were dismissed, and the cross objection by the assessee was allowed.

Conclusion:
The appeal by the revenue was dismissed, and the cross objection by the assessee was allowed. The Tribunal pronounced the order in the open court on 16/01/2024.