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TMI Blog2024 (10) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs vs. Dilip Kumar And Co. Ors. [ 2018 (7) TMI 1826 - SUPREME COURT ] And that sec.200A of the Act is a specific provision having overriding effect over all other general provisions going by the principle of Generalis Specialibus non Derogant . Revenue s next plea is that nothing prevents the learned field authorities to make such an adjustment in case of an incorrect claim u/sec.200A(a)(ii) r.w.s. Explanation (ii) thereof - It s instant latter plea is also found to be devoid of merits once Explanation-(i) and (ii) to Sec.200A itself specify the scope thereof to any mutually inconsistent items vis- -vis another entry in form- 24Q or qua rate of deduction; respectively. There is no indication that sec.200A processing could in any way change head of the TDS applicability; what so ever. We thus conclude that once the assessee having deducted TDS u/sec. 192 of the Act at the time of payment ; the CPC s intimation going by the date of credit i.e., 31.03.2019 (supra) as well as the NFAC s impugned action changing salary head to commission , have erred in law and on facts in raising the demand in issue. The same stands reversed. We accept the assessee s foregoing main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to add, alter, amend, modify, or amplify any of the above stated Grounds of Appeal. 2.1. Learned counsel further invited our attention to the assessee s additional ground in the instant appeal reading as under: 1] The learned CIT(A) erred in holding that the payment made to Shri Kairus Dadachandji was in the nature of fees for technical services and hence, TDS u/s 194] was required to be deducted without appreciating that the appeal was filed against the order passed u/s 154 r.w.s. 200A and there was no jurisdiction u/s 200A to change the nature of the payment and hence, the order of the learned med CIT(A) is incorrect in law and the interest charged of Rs.5,1 /86 2/- should be deleted. 3. The Revenue vehemently objected to admission of the assessee s foregoing additional ground by raising technical objection that same could not be allowed at this belated stage. This tribunal s Special Bench decision in All Cargo Global Logistics Ltd. vs. DCIT [2012] 137 ITD 287 (Mum.) (SB) has settled the law in light of National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 (SC), we can very well entertain an additional ground going to root of the matter in order to determine correct tax lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tax under the head Salaries whether paid or not. The nature of payment which is subject matter of TDS on commission paid to Managing Director. Mr.Kairus S Dadachandji is a Managing Director of the company. The board resolution for the appointment of Mr. Kairus Dadachanji as Managing Director is enclosed as Annexure No. - 1 where in he was appointed as Managing Director for a period of 3 years i.e. from 1st April, 2017 to 31.03.2020. His remuneration was also fixed@ 20% of the profit of the company. During the year ended on 31.03.2019, a sum of Rs.3,57,95,644/-was determined as commission payable to MD based on profits of the company in the meeting of Board of Directors held on 28.06.2019 where in the Board approved the final accounts for the year ended on 31.03.2019. This was subject to TDS of Rs.1,29,22,475/- and an amount of Rs. 2,28,73,169/- was payable to him after TDS. The commission was paid to Mr. Kairus Dadachanji on 26th July 2019 and is debited to bank account on 01st Aug., 2019 - copy of cheque and bank statement is attached. As far as TDS is to be considered, it has to be deducted at the time of payment only as per the provisions of Sec.192 of the Act. The detailed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or commission by whatever name called, other than those on which tax is deductible under section 192, to a director of a company, or (c) royalty, or (d) any sum referred to in clause (va) of section 28,]... Explanation. For the purposes of this section,- (a) professional services means services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purposes of section 44AA or of this section; (b) fees for technical services shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9; (ba) royalty shall have the same meaning as in Explanation 20 clause (vi) of sub-section (1) of section 9; (c) where any sum referred to in sub-section (1) is credited to any account, whether called suspense account or by any other name, in the books of account of the person liable to pay such sum, such crediting shall be deemed to be credit of such sum to the account of the payee and the provisions of this section shall apply accordingly. 6.5 As discussed abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the result, the Appeal is here by dismissed. We now advert to the relevant facts. 5. There is hardly any dispute between the parties that the assessee-deductor had paid salary/fixed remuneration to it s Managing Director Mr. Kairus Dadachanji @ 20% of the net profits. It admittedly credited the impugned sum in the corresponding salary account on 31.03.2019 followed by actual payment thereof on 25.07.2019. There is hardly any issue between the parties that in the event of TDS deduction u/sec.192 of Chapter-XVII of the Act in case of salary reimbursement(s), applies at the time of payment only. 6. Coming to the fore going sole issue between the parties; the assessee had filed it s TDS return in form-24Q regarding the impugned salary. A perusal of the impugned processing dated 18.08.2019 [pages 7 to 8] in the case record indicates that the CPC s intimation u/sec.154 of the Act proceeded on the basis of assessee s date of credit of the foregoing remuneration i.e., 31.03.2019 to raise the corresponding demand of Rs.5,16,892/- in the nature of additional late deduction/collection default u/sec.201(1A) of the Act. Needless to say, the learned NFAC has gone a step further in holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax at source, where such rate is not in accordance with the provisions of this Act. (2) For the purposes of processing of statements under sub- section (1), the Board may make a scheme for centralised processing of statements of tax deducted at source to expeditiously determine the tax payable by, or the refund due to, the deductor as required under the said sub-section. 8. The assessee s case in light of the above extracted provision is that the NFAC has no jurisdiction to change the head of the corresponding TDS provision; and more particularly; from salary u/sec.192 to commission u/s.194A of the Act in these facts and circumstances. 9. Learned CIT-DR s case in light of sec.251(1)(a) of the Act is that such an enhancement falls within the inherent jurisdiction of the lower appellate authority. 10. We hardly see any reason to cause our agreement with the Revenue s arguments supporting the learned NFAC s foregoing directions invoking sec.194A qua assessee s salary payment(s) attracting TDS deduction u/sec.192 of the Act as sec.200A appears to be in the nature of a complete code in itself for the purpose of processing of TDS returns. Faced with this situation, we invoke stricter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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