2021 (8) TMI 219 - AT - Income Tax

TDS u/s 194C - lease rent payment - HELD THAT - By placing reliance on the decision of Hon ble jurisdictional High Court in the case of Rajesh Projects (India) Ltd. 2017 (2) TMI 1109 - DELHI HIGH COURT CIT(A) rightly held that the assessee is not liable to be treated as an assessee in default, as the assessee was prevented from deducting TDS by Noida Authority by issue of letter and if the amount of lease rent is accounted for by the Noida Authority in view of first proviso to section 201(1), the said fact was to be verified and the demand to the tune has to be deleted. Revenue does not dispute the correctness of this finding. As decided in case of Rajesh Projects (supra) to the effect that GNoida was ensured that the reimbursement is made to compensate the petitioner s excess payments; the income tax authorities shall not pursue any coercive methods for recovery of the amounts, penalty, once the basic liability (with interest to be paid by GNoida) is satisfied and decided the issue in favour of the assessee. In Prateek Buildtech 2020 (3) TMI 224 - ITAT DELHI a coordinate Bench of this Tribunal held that when once the basic liability of reimbursement by Gnoida is made, the authority shall not pursue any coercive method. We restore the issue to the learned Assessing Officer with the direction to verify whether the NOIDA has payments of the basic TDS liability along with the interest; that the assessee shall cooperate and provide relevant information required by the Assessing Officer and if after verification, it is found that the basic TDS liability and interest thereon has already been paid by the NOIDA, then no such liability shall be raised on the assessee. With these observations, we allow ground No. 3 for statistical purposes. TDS u/s 194C OR 194J - payments in respect of advertisement expenses - HELD THAT - It could be seen that the word advertising has been clarified by CBDT in Circular No. 714 dated 03/08/1995 while stating that according to the amended provisions, tax has to be deducted @ 1% in case of advertising and at 2% in other cases.Further Circular No. 4 clarifies the distinction between the payments by a person to the advertising agency and the payments made by advertising agency to the television channel or newspaper company etc. A reading of Circular No. 714 and 4 makes it amply clear that when a person makes a payment to advertising agency, such payments are covered by section 194C whereas if the advertising agency makes any payment to a film artist such as an actor, a cameraman, a director etc., it would be covered by section 194J. This distinction is based on the fact that when the advertising agency makes such payments to a film artist, the intellectual property in the contents will be acquired by the advertising agency and the services secured are only broadcast and telecast and nothing more. A contract need not always be in writing and could be implied also. In the circumstances, we find that the payment made by the assessee for advertisement in connection with their business falls within the ambit of section 194C and not section 194J

Summary

Issues:
1. Whether TDS was correctly deducted on lease rent and advertisement expenses.
2. Whether interest liability under sections 201(1A) applies.
3. Whether the demand for short deduction of TDS on advertisement expenses is valid.

Analysis:
1. TDS on Lease Rent and Advertisement Expenses:
The appellant, a construction company, did not deduct TDS on lease rent paid to Noida Authority based on a letter from the authority. The Assessing Officer demanded TDS under section 194J for lease rent and 10% TDS under section 194J for advertisement expenses. The CIT(A) deleted the demand for lease rent based on a jurisdictional High Court decision. The ITAT upheld this decision, stating that the liability and interest paid by Noida Authority absolved the appellant from TDS liability.

2. Interest Liability under Section 201(1A):
The CIT(A) confirmed interest liability under section 201(1A) for non-deduction of TDS on advertisement expenses. The ITAT referred to previous decisions and directed the Assessing Officer to verify if Noida Authority had paid the basic TDS liability and interest. If verified, no liability would be raised on the appellant, following the principle of non-coercive methods after basic liability reimbursement.

3. Validity of TDS Deduction on Advertisement Expenses:
The Assessing Officer treated advertisement expenses as professional services under section 194J instead of section 194C. The ITAT analyzed CBDT Circulars clarifying the distinction between payments to advertising agencies and payments by agencies to film artists. It concluded that the payment made by the appellant for advertisements falls under section 194C, not 194J. Therefore, the ITAT directed the Assessing Officer to delete the addition related to advertisement expenses.

In conclusion, the ITAT partially allowed the appeal for statistical purposes, deleting the demands related to lease rent and advertisement expenses based on legal interpretations and precedents.