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TMI Blog2016 (2) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... P.) Ltd. (2007 (8) TMI 12 - SUPREME COURT OF INDIA ), assessee is liable to pay interest under section 201(1A) till the date of payment of taxes by the deductees on the income received by them from the deductor assessee - ITA no.2761/Mum./2014 - - - Dated:- 5-1-2016 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER For The Assessee : Shri Ronak G. Doshi For The Revenue : Shri Shrikant Mamdeo ORDER PER SAKTIJIT DEY, J.M. Instant appeal by the assessee is directed against the order dated 15th January 2014, passed by the learned Commissioner (Appeals) 16, Mumbai, for the assessment year 2009 10. Following grounds have been raised by the assessee: GROUND I: 1. On the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26Q for the first quarter of the financial year 2008 09, the Assessing Officer found that the assessee has made short deduction of tax at source by not deducting tax at appropriate rate. As per the information available with him, the Assessing Officer quantified the short deduction of TDS at ₹ 42,02,940. He, therefore, passed an order under section 201(1) and 201(1A) of the Act, demanding tax of ₹ 42,02,940 and interest of ₹ 14,71,160. Being aggrieved of such order of the Assessing Officer, assessee preferred appeal before the learned Commissioner (Appeals). 3. Before the first appellate authority, challenging the order of the Assessing Officer in treating the assessee as assessee in default , it was pleaded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 201(1) of the Act. 4. The learned Counsel for the assessee reiterating the stand taken before the learned Commissioner (Appeals), submitted, the assessee having furnished confirmation / declarations from both the recipients to the effect that they have shown the amounts received in the return of income filed by them for the assessment year under consideration, there is no justification to treat the assessee as an assessee in default under section 201(1) of the Act. The learned counsel drawing our attention to the confirmation letters issued by G.E. Capital Services India and DSP Merrill Lynch Capital Ltd. (the deductees) submitted that the confirmation letters would make it clear that amounts received from the assessee were declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax at source. As could be seen from the facts on record in respect of two recipient viz. G.E. Capital Services India and DSP Merrill Lynch Capital Ltd., assessee has deducted tax @ 11.33% instead of 22.66% by treating them as non corporate entities. However, it is the specific plea of the assessee that both the aforesaid recipients have declared the amounts received as income in the return of income filed for the assessment year under consideration and paid taxes. In this context, assessee has filed before the Departmental Authorities confirmation letters issued by both the recipients. Assessee has also furnished before the Departmental Authorities the assessment details of both the recipients along with their Permanent Account Number. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the question is whether as a fact it has been established that the payees have included the income in their returns and paid taxes thereon. This requires factual verification. We are, however, unable to share the view of the CIT(A) that the onus is entirely on the assessee to prove that the taxes have been paid by the payees. It is true that the onus is initially on the assessee who takes up the plea but when sufficient details which would enable the Assessing Officer to verify the factual position have been filed before the Assessing Officer it was for the Assessing Officer, with his vast powers, to invoke them and have the details furnished by the assessee verified. In the present case the assessee has furnished the Permanent Account Nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under the Act and have the payment of taxes by the payees verified from the respective Assessing Officers assessing the payees with the help of the Permanent Account Numbers of the payees made available by the assessee. We direct the Assessing Officer to do so. If upon verification it is found that the taxes have been paid by the payees fully in respect of the roaming charges received by them from the assessee, nothing survives. In such an event no taxes can be recovered from the assessee and the assessee cannot be treated to be in default. The issue is, accordingly, restored to the Assessing Officer with the above directions. 7. Respectfully following the aforesaid observations of the co ordinate Bench of the Tribunal, we direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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