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TMI Blog2022 (2) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... rning income from business or profession and is not drawing salary from these concerns on which TDS has been deducted u/s. 192 - CIT(A) has primarily relied on the understanding that since the assessee himself is a managing director of the company in which he is having control, he is not entitled to earn salary from the said company and the income so earned from the company bears the character business and professional income . In view of the fact that the assessee is a senior citizen above 60 years of age, has been consistently filing return declaring income earned as Salary income from these concerns, tax has been deducted at source u/s 192 of the Act on the payments made to the assessee and that the Ld. CIT(Appeals) has not brought any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the act. The appellant has submitted detailed explanation to the notice submitted with the office of the Hon'ble CIT(A)-1, Baroda on 13.06.2019. In fact as per the notice the opportunity of filing the reply was given and no opportunity for personal hearing was given which was awaited by the appellant. Thus the order passed by Hon'ble CIT(A)-1, Baroda is bad in law and be quashed. 3. The Hon'ble CIT(A), has wrongly concluded that charging of interest u/s 234B/C is consequential, mandatory and parasitic in nature relying on the decision of Hon'ble Supreme Court in the case of CIT v/s M. H. Ghaswala. However he has failed to consider the provisions of section 207 of the act. It be held so now and order passed by the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of Rs. 5,64,130/- against which the assessee filed a appeal with CIT(Appeals). 4. During the course of appellate proceedings, ld. CIT(A) noted that the assessee is getting salary from three companies i.e. M/s. Elmex Control Pvt. Ltd., M/s Elmex Electrical and Electronics Pvt. Ltd. and M/s. Elecon Electro Pvt. Ltd. The assessee was also a partner in six firms namely (i) ACE Industries, (ii) Agrim Industrial Plastics, (iii) Ancel Industries, (iv) Anurag Industries, (v) Elmex Industries (vi) Enten Plastics and the assessee received share of profit from the above six firms. During the course of appellate proceedings, the assessee was asked to produce copy of terms and conditions of employment held in these three companies. The ld. CIT(A) no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok filed on 06-10-2021 wherein he pointed out that the assessee has filed return of income declaring "income from salary" and "income from other sources". The assessee submitted that as per section 207(2) of the Act an individual resident who does not have any income chargeable under head "profit and gains from business or profession" and who is of the age of 60 years or more is not required to pay advance tax. In the instant set of facts, both the above conditions have been satisfied i.e. the assessee is above sixty years of age and perusal of the return of income would show that the assessee does not have any income chargeable under the head "profits and gains of business or profession". Further, the assessee submitted that the Ld. CIT (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial year, in accordance with the provisions of sections 208 to 219 (both inclusive), in respect of the total income of the assessee which would be chargeable to tax for the assessment year immediately following that financial year, such income being hereafter in this Chapter referred to as "current income". (2) The provisions of sub-section (1) shall not apply to an individual resident in India, who- (a) does not have any income chargeable under the head "Profits and gains of business or profession"; and (b) is of the age of sixty years or more at any time during the previous year." On a reading of section 207 of the Act, it is seen that it speaks of liability to pay advance tax. As per sub section (1), a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income so earned from the company bears the character " business and professional income". However, in view of the fact that the assessee is a senior citizen above 60 years of age, has been consistently filing return declaring income earned as Salary income from these concerns, tax has been deducted at source u/s 192 of the Act on the payments made to the assessee and that the Ld. CIT(Appeals) has not brought any material on record to exhibit that the assessee has not earned salary income, we are of the view that the assessee has satisfied conditions of section 207 of the Act and is not liable to pay advance tax. In the result, we hold that ld. CIT(A) has erred in confirming the charging of interest u/s. 234B and section 234C for non-c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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