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TMI Blog2018 (5) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... check evasion of payment of TDS under section 194H of the Act. Since the issue is squarely covered by the order of Tribunal in assessee’s own case and also by the Hon’ble High Court of Rajasthan again in assessee’s own case and in Bharti Airtel Vs. DCIT (2014 (12) TMI 642 - KARNATAKA HIGH COURT), we find merit in the plea of assessee in this regard. - ITA Nos.807 And 808/PUN/2016 - - - Dated:- 14-5-2018 - MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM For The Assessee : Shri Ronak G. Doshi For The Revenue : Shri Rajeev Kumar ORDER PER SUSHMA CHOWLA, JM: Both the appeals filed by the assessee are against separate orders of CIT(A), Pune-10, both dated 29.01.2016 relating to assessment years 2012-13 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e TDS Officer by treating the Appellant as an assessee in default under section 201(1) of the Act, without appreciating that it is a settled legal position that, if TDS machinery fails, the Appellant cannot be treated as an assessee in default under section 201(1) of the Act. 2. The Ld. CIT(A) erred in not appreciating that - a. Section 194H of the Act was never intended to apply to cases where a person is neither making any payment to another person nor crediting any sum to the account of another person nor can it imply that there is payment or credit. b. It is impossible for the Appellant to determine the amount of income of the distributor on which tax ought to have been deducted and therefore the provisions of section 194H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. WITHOUT PREJUDICE TO ABOVE GROUNDS: GROUND NO. IV: LEVY OF INTEREST UNDER SECTION 200(1A) OF THE ACT: 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the order of the TDS Officer in holding the Appellant as assessee in default under section 201(1) of the Act and thereby levying the interest under section 201(1A) of the Act. . 5. The Appellant prays that the interest levied under section 201(1A) of the Act be deleted or be appropriately reduced. 4. The learned Authorized Representative for the assessee at the outset pointed out that the issue raised in both the appeals is squarely covered by the order of Tribunal in assessee s own case in ITA Nos.1041, 1042 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08. Subsequently, order under section 201(1)/201(1A) of the Act was passed for assessment years 2007-08 and 2008-09 on 24.03.2011 on the issue of non deduction of tax at source under section 194H of the Act on discount to pre-paid distributors. Later on, the proceedings for assessment years 2009-10 to 2012-13 were picked up for verification and orders were passed for non deduction of tax under section 194H of the Act. The Assessing Officer further notes that even for assessment year 2013-14, details were called for. For both the years under appeal i.e. assessment years 2012-13 and 2013-14, the Assessing Officer held the assessee to have defaulted in non deduction of tax at source under section 194H of the Act on discount to pre-paid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above in para 60 of the order, section 194H is not attracted. Therefore, in line of the above observation of the Hon ble High Court we restore the matter to the file of the Assessing Officer for necessary verification. The grounds raised by the assessee are accordingly allowed for statistical purposes. 9. The Tribunal had remitted the matter back to the file of Assessing Officer to verify how the books were maintained and how sale price and the sale discount was treated and whether sale discount was reflected in the books of account. The Tribunal thus, held that if the accounts were not reflected as set out in para 60 of the Hon ble High Court of Karnataka, the provisions of section 194H of the Act were not attracted. 10. The Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 2006-07, which is consequent to survey operation carried out at the premises of assessee to check evasion of payment of TDS under section 194H of the Act. Since the issue is squarely covered by the order of Tribunal in assessee s own case and also by the Hon ble High Court of Rajasthan again in assessee s own case and the Hon ble High Court of Karnataka (supra), we find merit in the plea of assessee in this regard. Accordingly, we direct the Assessing Officer to follow the directions of Tribunal in earlier years and carry out verification exercise as mentioned in para 60 of the order of the Hon ble High Court of Karnataka and applied by the Pune Bench of Tribunal in para 21. Accordingly, the issue is remitted back to the file o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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