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TMI Blog2019 (4) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has collected the due tax from the payee on the date of filing the return of income and payee paid the due tax before filing the return of income. Therefore, following the decision of the Hon'ble Supreme Court in the case of Hindustan Coca-Cola Beverages Ltd [2007 (8) TMI 12 - SUPREME COURT OF INDIA] the department is allowed to claim interest on failure is upto the date of filing the return of income. Therefore, we direct the Assessing Officer to calculate the interest u/s. 201(1A) from the date of payment to the date of filing of the return of income by the payee. Therefore, ground of appeal filed by the assessee is allowed. Interest u/s. 234B charagibility - double taxation by way of interest, once u/s. 201(1A) from the payer-assessee and again u/s. 234C from Navayuga Engineering Company Limited (NECL) - HELD THAT:- Assessee has submitted that the payee has filed return of income and paid the due tax including interest u/s. 234B, Assessing Officer cannot calculate interest u/s. 201(1A). In our view, assessee failed to understand the mandate of the two Sections i.e., Sec. 201(1) is the obligation on the collector of tax and Sec. 234B is the obligation on the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeals, which are admitted being heard on merits. First of all, we shall discuss herewith the appeals relating to Section 201(1) 201(1A) of the Act. For the sake of clarity, facts relating to assessee s appeal in ITA No. 318/Hyd/2018 are discussed hereunder: 3. Brief facts of the case are that assessee-company is engaged in the business of construction and operation of sea port at Krishnapatnam, Nellore District, Andhra Pradesh. A TDS survey u/s. 133A of the Income Tax Act [Act] was conducted in the business premises of the assessee-company on 12-09-2013. During the survey, it was observed that the assessee-company did not adhere to the provisions of TDS in respect of deduction under certain sections and remittance of the same in to Government account within the statutory due dates. Accordingly, notices were issued and served on the assessee. On the basis of the information available and examination of books, it is noticed that assessee has made payment to the extent of ₹ 331.38 Crores during the month of May, 2010 and June, 2010 to M/s. Navayuga Engineering Company Limited (NECL), an EPC contractor of the assessee-company and sister concern. On verification of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, the certificate by the accountant in the prescribed form i.e. Form 26A was not furnished by the appellant. Since the conditions laid down in the proviso to Section 201(1) have not been fulfilled, the assessee is held to be an assessee in default and the demand raised by the AO u/s.201(1) is upheld. As regards the levy of interest u/s. 201(1A), since the appellant failed to furnish the said certificate i.e. Form No. 26A from an accountant in respect of the payee, interest shall be leviable from date of crediting the said amount in the books of account of the payer till the date of passing of the impugned order. Therefore, interest levied by the AO u/s. 201(1A) of ₹ 5,70,000/- is upheld and the ground of appeal is dismissed . 5. Before the Ld.CIT(A), assessee submitted regarding payment of ₹ 54.24 Crores, as under: The AR submitted that the said amount was transferred through RTGS from the ICICI Bank of the appellant to the Bank account of NUTPL towards share application money and submitted a copy of the letter written by the appellant to ICICI Bank for transfer funds thru RTGS to NUTPL and also copy of the ICICI Bank statement evidencing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly on various dates. The section wise details of the late remittances and interest thereon are given below: Section Amount paid TDS deducted Interest u/s. 201(1A) 192 15,20,66,943. 3,75,12,729 23,07,604 194A 10,85,29,916 1,08,52,993 4,09,201 194C 5,49,58,03,061 10,28,61,663 94,08,095 194H 2,65,720 26,572 784 194I 25,17,40,557 77,31,992 2,11,977 194J 53,99,14,931 2,30,62,576 5,02,042 Total interest u/s. 201(1A) 1,28,39,703 6.1. The Ld.AR of the assessee raised this issue before the Ld.CIT(A) as under: It was submitted that advance payments were given to NECL earlier which have been adjusted against the Running Account (RA) bills raised by NE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01-07-2012 i.e., after the current assessment year. 7. With regard to the above, Ld.CIT(A) has rejected the plea of the assessee, because the assessee has not filed Form No. 26A as per provisions to Section 201(1) of the Act so that Assessing Officer could have determined whether the assessee is in default or not. But in our considered view, no doubt assessee has not filed the Form 26A but now assessee has brought evidence before the Assessing Officer to substantiate that the payee NECL has filed the return of income and paid the due tax. We cannot forget that assessee is collecting the above tax on behalf of Government and the duty on the assessee is statutorily obligated upon. When assessee fails to comply with the provisions, the liability is on the assessee until the due tax is collected or paid to Government. In this case, no doubt assessee has not complied with the provisions but Government has collected the due tax from the payee on the date of filing the return of income and payee paid the due tax before filing the return of income. Therefore, following the decision of the Hon'ble Supreme Court in the case of Hindustan Coca-Cola Beverages Ltd., (supra), the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case and in law, the learned CIT(A) erred in deleting the demand raised u/s.201(1) 201(1A) pertaining to amount paid of ₹ 54,24,79,0001- to Mis. Navayuga Engineering Company Limited without deducting Tax at source for the AY 2011-12. 2. Whether in the facts of the case, the learned CIT(Appeal) is correct in treating the amount of ₹ 54,24,79,000/- as share application money which was in fact the payments toward EPC contracts paid to M/s. Navayuga Engineering Company Limited. 3. Whether the learned CIT (A) erred in fact to ignore that the assessee has directly paid for share application money to M/s. Navayuga Udipi Tollway Private Limited. 4. Whether the learned CIT (A) erred in fact to accept the payment of share application money through M/s. Navayuga Engineering Company Limited on behalf of the assessee on the same date and through journal entry even when the payment was made directly to M/s. Navayuga Udipi Tollway Private Limited. 5. Whether the learned CIT(A) has erred in fact in not appreciating that it is a related party transaction beyond the human probability. 6. Whether the learned CIT(A) has failed to appreciate, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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