2017 (9) TMI 430 - AT - Income Tax

TDS u/s 195 - Interest u/s 201(1A) - Purchase of property from non-resident - On behalf of NRI, the Payment made to GPA Holder (for purpose of facilitating transactions in India) and Dewan Housing Limited(Housing loan taken by seller) - Amount not paid directly to NRI - Held That - Payments made to both the parties constitutes the payments made to the non-resident and the TDS is deductible as per the provisions of section 195. - Decided against assessee. Long Term Capital Loss - NIL Demand - deductee filed the return claming that the long term capital gains resulted into capital loss which resulted into nil demand. - Held That - When there is no tax payable by the deductee on sale of land, there is no question of charging interest u/s 201(1A) of the Act, as per instruction No.2 of 2014 dated 26.2.2014 and the circulars are binding on the Departmental officers. - Decided against assessee.

Summary

Issues Involved:
1. Interpretation of provisions of Section 195 of the Income Tax Act, 1961 regarding deduction of tax on payments made to non-residents.
2. Charging of interest under Section 201(1A) of the Act on payments made to non-residents.

Analysis:

Issue 1: Interpretation of Section 195 of the Income Tax Act, 1961
The case involved a dispute regarding the applicability of Section 195 of the Income Tax Act, 1961 on payments made to a non-resident seller through a General Power of Attorney (GPA) holder and a financial institution. The appellant argued that since the payments were not directly made to the non-resident, the provisions of Section 195 were not attracted. However, the Tribunal held that payments made to the GPA holder and the financial institution constituted payments made to the non-resident seller. Therefore, the Tribunal dismissed the ground of appeal related to the applicability of Section 195.

Issue 2: Charging of Interest under Section 201(1A) of the Act
The second issue revolved around the charging of interest under Section 201(1A) of the Act on payments made to a non-resident seller. The Assessing Officer had levied interest on the appellant for not deducting tax at source as required under Section 195. The appellant contended that since the non-resident seller had filed a return of income showing long term capital loss, there was no tax liability, and thus, no case for charging interest under Section 201(1A). The Tribunal referred to CBDT Instruction No. 2 of 2014, which clarified that interest should be restricted to the appropriate portion of the sum chargeable to tax. As there was no tax payable by the non-resident seller, the Tribunal held that there was no basis for charging interest under Section 201(1A). Therefore, the Tribunal set aside the orders of the lower authorities and allowed the appeal of the assessee.

In conclusion, the Tribunal ruled in favor of the appellant, holding that the provisions of Section 195 were applicable to the payments made to the non-resident seller through the GPA holder and financial institution. However, the Tribunal also determined that there was no basis for charging interest under Section 201(1A) due to the non-resident seller's long term capital loss resulting in no tax liability.