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TMI Blog2015 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ofessional charges and consultancy charges - Held that:- . It is the claim of the assessee not only before the first appellate authority but also before us that many of the payments constituting the professional charges of ₹ 8,24,762 and consultancy charges of ₹ 4,17,465 are less than ₹ 20,000. Hence, there is no requirement for deduction of tax at source. It is also the claim of the assessee that on all other payments exceeding ₹ 20,000 assessee has complied to the TDS provisions but due to some reason or other he could not produce the evidences before the A.O. or first appellate authority. In support of such claim, assessee has submitted certificates in Form No.16A containing the payment particulars, dates of remittance of TDS into the Government account, corresponding cheque numbers etc. We consider it appropriate to remit the matter back to the file of A.O. for necessary verification and deciding the matter afresh - Decided in favour of assessee for statistical purposes. Tds on advertisement and publicity expenses - demand raised under section 201(1) and 201(1A) - Held that:- It is the claim of the assessee before us that assessee has not incurred th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents cannot be said to be coming within the expression ‘rent’ as defined under section 194I. Therefore, without verifying the details of payments and terms of contract, it cannot be concluded that the location rent is payment received towards lease, sub-lease, tenancy etc., as per Explanation (i) of Section 194I. As the terms of contract and details of payment are not before us, we are not in a position to decide the issue. Accordingly, we remit the matter back to the file of A.O. for deciding afresh after due opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes. - ITA.No. 143 & 139/Hyd/2014 - - - Dated:- 18-2-2015 - Shri B. Ramakotaiah And Shri Saktijit Dey JJ For the Appellant : Mr. V. Raghavendra Rao For the Respondent : Mr. Rajat Mitra ORDER Per B. Ramakotaiah, A.M. These two appeals by assessee are against the separate orders of Ld. CIT(A)-II, Hyderabad both dated 20.11.2013 pertaining to A.Ys. 2008-09 and 2009-10. As the issues are common, these appeals are taken-up for disposal in the combined order for the sake of convenience. ITA.No.143/Hyd/2014 : 2. Issues arising in the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted by the assessee that tax was not deducted as Gemini Laborotories Ltd., have included the amount as their income and paid taxes thereon. Therefore, as per the ratio of the decision of Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages Limited 293 ITR 226 no liability under section 201(1) can be fastened on the assessee. To prove this contention, assessee also submitted a certificate from a Chartered Accountant in Form 26A wherein it was stated that the payee has offered the said amount as income and paid the taxes thereon. Ld. CIT(A) after considering the submissions of the assessee and verifying the material on record observed that the certificate in Form 26A given by the Chartered Accountant is defective. Hence, cannot be relied upon. Though, she noted the fact that the return of income filed by Gemini Laboratories was also submitted before her but she nevertheless directed the A.O. to verify whether ₹ 53 lakhs was accounted for by Gemini Laboratories or not and decide accordingly. As far as payment of ₹ 49,000 to Ms. M.M. Srilekha is concerned, the Ld. CIT(A) also issued similar direction to the A.O. to verify whether the said payee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of professional charges of ₹ 8,24,762 and demand raised under section 201(1A) in respect of consultancy charges of ₹ 4,17,465. Before the first appellate authority, it was submitted by the assessee that the A.O. while holding that tax was not deducted on the professional charges of ₹ 8,24,762 failed to notice that some of the payments are less than ₹ 20,000. Hence, TDS provisions are not applicable. In respect of rest of the payments tax was deducted and it forms part of the amount of ₹ 1,27,26,641. Similarly, with regard to professional charges of ₹ 4,17,765 it was submitted by the assessee that some of the payments are less than ₹ 20,000 and on the balance payments tax has been deducted and it forms part of the amount of ₹ 1,27,26,641. Ld. CIT(A), however, did not find merit in such contention of the assessee by observing that no details were submitted by the assessee. 8. Learned A.R. reiterating the submissions made before the first appellate authority submitted before us, some of the payments out of the professional charges of ₹ 8,24,062 and consultancy charges of ₹ 4,17,465 were below ₹ 20,000. Hence, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alculation of interest under section 201(1A). Learned A.R. submitted before us that the method of calculation of interest adopted by the A.O. by estimating on the basis of month-wise average payments is against the statutory provisions. 12. Learned D.R. however, supported the order of the A.O. and Ld. CIT(A). 13. We have considered the submissions of the parties and perused the materials on record. In our view, ultimately the interest under section 201(1A) is to be computed on the basis of tax demand, if any, under section 201(1) by treating the assessee as an assessee in default of the Act. As we have remitted the issue relating to applicability of TDS provisions on the payments which were subject matter of appeal in grounds No. 2 to 5, it will be premature to decide this issue at this stage. However, we direct the A.O. to compute the interest under section 201(1A) strictly in compliance with the statutory provisions. Ground No.6 is accordingly disposed of. 14. In the result, ITA.No.143/Hyd/2014 of the assessee is allowed for statistical purposes. 15. This appeal of the assessee is also concerning demand raised under section 201(1) and 201(1A). Assessee has raised 8 gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l evidence. 18. Learned D.R. submitted before us that since the assessee could not furnish any details with regard to payments made, Ld. CIT(A) confirmed the demand. 19. We have considered the submissions of the parties and perused the materials on record. It is the claim of the assessee before us that assessee has not incurred the expenditure towards advertising and publicity directly but it was Siri Media P. Ltd., who is the distributor and has made the payments on behalf of the assessee. It is also the contention of the assessee that Siri Media P. Ltd., has deducted tax at source on such payments made to the payees towards advertising and publicity. In this context, he has produced before us the TDS certificates and Form 16A and has requested for treating them as additional evidence. As these evidences were not produced either before the A.O. or Ld. CIT(A) and has been submitted before us for the first time, in the interest of justice, we consider it appropriate to remit the matter back to the file of A.O. to verify assessee s claim with reference to additional evidence produced and decide the matter, after giving due opportunity of being heard to the assessee. Ground No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee s claim is found to be correct, A.O. cannot treat the assessee as assessee in default as held by the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages Ltd., (supra). Accordingly, we direct the A.O. to decide the issue within a period of six months from the date of this order by applying the ratio laid down by Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages (supra). Ground No.3 of the assessee is allowed for statistical purposes. 25. In ground No.4 along with its sub-grounds assessee has challenged the demand raised under section 201(1) and 201(1A) on payments made totaling to ₹ 12,50,000 to M/s. Usha Kiran Movies towards location rent. 26. Briefly the facts are, the A.O. in course of proceeding noticed that assessee has paid an amount of ₹ 12,50,000 towards location rent to M/s. Usha Kiran Movies without deducting tax at source. A.O. therefore, treated assessee as assessee in default and raised demand under sections 201(1) and 201(1A) of the Act. Being aggrieved of the order passed, assessee preferred appeal before the Ld. CIT(A). Ld. CIT(A) after considering the submissions of the assessee in the context of facts and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicability of TDS provisions on payments made by assessee to Prasad Film Laboratories of ₹ 1,00,000 and ₹ 8,15,000 to Ramanaidu Colour Laboratories respectively towards processing charges. 32. Similar issue was raised by the assessee in ground No.3 hereinabove. Following our decision, we direct the A.O. to verify the income tax particulars of the concerned payees and decide the matter within a period of six months from the date of this order keeping in view the ratio laid down by the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages Ltd., (supra) and after affording due opportunity of being heard to the assessee. Ground Nos.5 and 6 of the assessee are allowed for statistical purposes. 33. Ground No.7 is with regard to computation of interest. Similar ground was raised by the assessee in ITA.No.143/Hyd/2014 for the A.Y. 2008-2009 decided by us in the earlier part of the order. Accordingly, we direct the A.O. to decide the issue of computation of interest under section 201(1A) following our direction contained in para 13 of the order hereinabove, after giving due opportunity of being heard to the assessee. 34. In the result, ITA.No.139/Hyd/2014 ..... 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