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2012 (7) TMI 161 - AT - Income TaxWhether payment made for normal and routine supervision of works assigned was covered u/s. 194J as not u/s. 194C of the Income Tax Act, 1961 assessee has deducted taxes @ 2.06% as per section 194C of the IT Act treating it as supervision charges - as per the AO, the same is covered by section 194J of the IT Act Held that - Matter requires reconsideration at the level of ld. CIT(A) because he has to specify in the appellate order as to which of the clauses of section 194J would apply in the case of assessee and he has to give reasons for the same in the appellate order. Merely because the assessee originally mentioned section 194J in the TDS return by itself is not sufficient to put the assessee in default for short deduction and late payments of taxes with interest - CIT(A) has not given any finding on the same and dismissed the appeal of the assessee despite specific material was produced before him - appeal of the assessee is partly allowed for statistical purposes
Issues Involved:
1. Applicability of Section 194J vs. Section 194C for TDS deduction. 2. Validity of demand for short deduction of TDS when the payee has already paid tax on the income. Detailed Analysis: 1. Applicability of Section 194J vs. Section 194C for TDS deduction: The primary issue is whether the payment made for supervision charges should be covered under Section 194J or Section 194C of the Income Tax Act, 1961. The assessee deducted TDS at 2.06% under Section 194C, treating the payment as supervision charges. However, the Assessing Officer (AO) contended that the payment should be covered under Section 194J, which requires a higher TDS rate of 10.3%, as the services were rendered in a professional manner. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, stating that the payment made to Shri Tanuj Agarwal for construction supervision charges is not covered under Section 194C but under Section 194J. The CIT(A) referenced the Gujarat High Court's decision in the case of All Gujarat Federation of Tax Consultants vs. CBDT, which held that professional services do not fall under the purview of Section 194C. The CIT(A) concluded that the payment for managerial services by way of supervision of construction work falls under Section 194J. However, the Tribunal noted that the CIT(A) did not provide a detailed analysis of how the supervision charges fall under the definition of "fees for technical services" under Section 194J. The Tribunal emphasized that merely applying a wrong provision of law is insufficient to impose liability on the assessee. The Tribunal remanded the matter back to the CIT(A) to specify which clause of Section 194J applies and to provide reasons for the same. 2. Validity of demand for short deduction of TDS when the payee has already paid tax on the income: The second issue is whether the demand for short deduction of TDS is valid when the payee, Shri Tanuj Agarwal, has already paid tax on the income. The assessee argued that since the payee has paid tax on the same payment, no demand for short deduction of TDS should be raised against the assessee. The CIT(A) did not address this argument in his order. The Tribunal found merit in the assessee's argument, referencing the Supreme Court decision in Hindustan Coca Cola Beverage P. Ltd. vs. CIT, which held that if the deductee has paid the tax, the same tax cannot be recovered from the deductor, although interest for delay is mandatory. The Tribunal remanded this issue back to the CIT(A) to verify whether the payee has paid tax on the same income and to consider its effect on the demand for short deduction of TDS. Conclusion: The Tribunal set aside the CIT(A)'s order regarding the applicability of Section 194J and directed the CIT(A) to reconsider and specify which clause of Section 194J applies, providing reasons for the same. Additionally, the CIT(A) was directed to verify whether the payee has paid tax on the same income and to consider its effect on the demand for short deduction of TDS. The appeal was partly allowed for statistical purposes, and the CIT(A) was instructed to provide a reasonable opportunity for the assessee to be heard and to call for a remand report from the AO if necessary.
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