2022 (9) TMI 1617 - AT - Income Tax

TDS u/s 194I or 194C - Expenses on common area maintenance service - short deduction of TDS - demands raised u/s 201(1) and 201(1A) - HELD THAT - Sec 194I is applicable only in case of rent may be on plant and machinery (@ the rate of 2%) and for the use any land or building or land appurtenant to a building. In this case assessee is paying a rent/lease charges for the office premises which includes AC etc. and charges for the same already included in the rent. But the extra assessee is paying is for AC maintenance (not AC rent) housekeeping, security and common area maintenance charges. These payments nowhere related to sec 194I maybe the same has been fixed on a Lum sum basis pm. For these charges the relation of assessee is not of lessor and lessee but of contractor and service taker, which falls in the category of as defined in sec 194C. We direct the A.O to delete the demands raised u/s 201(1) and 201(1A), after due verification

Summary

Issues:
1. Incorrect TDS deduction rate on common area maintenance service.
2. Charging interest under section 201(1A) of the Income Tax Act.
3. Applicability of the Apex Court judgment of Hindustan Coca Cola Beverages Ltd.
4. Rejection of various case laws including the judgment of ITAT, New Delhi Bench.
5. Adequacy of opportunity provided to the assessee during the assessment process.

Analysis:
1. The appeal challenged the order of the National Faceless Appeal Centre regarding the TDS deduction rate on common area maintenance (CAM) services. The assessee argued that the TDS should be at 2% instead of 10%, citing settled law in their favor. Discrepancies in the amounts paid were highlighted between the Assessing Officer (AO) and the CIT(A). The Tribunal found that the charges for AC maintenance, housekeeping, security, and CAM were not related to rent but were for services falling under section 194C, not 194I. The Tribunal directed the AO to delete the demands raised under sections 201(1) and 201(1A) after verifying the discrepancies in the amounts.

2. The issue of charging interest under section 201(1A) was raised, and the Tribunal noted that the AO and CIT(A) had discrepancies in the amounts paid by the assessee. The Tribunal found that the charges were for services and not rent, thus directing the AO to delete the demands raised under sections 201(1) and 201(1A) after verification.

3. The appellant questioned the applicability of the Hindustan Coca Cola Beverages Ltd judgment. The Tribunal did not provide a specific analysis of this issue in the judgment.

4. The rejection of various case laws, including the judgment of ITAT, New Delhi Bench, was raised by the appellant. The Tribunal did not provide a detailed discussion on this issue in the judgment.

5. The Tribunal discussed the adequacy of the opportunity provided to the assessee during the assessment process. It noted a time lag of almost 7 years between the relevant period and the notice issuance, stating that the assessee was not given sufficient time to respond. The Tribunal found the AO's conduct towards the assessee to be harsh and in violation of natural justice. It emphasized the need for reasonable cognizance by the department and directed the AO to delete the demands raised under sections 201(1) and 201(1A) after verifying the discrepancies in the amounts.