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2023 (1) TMI 1243 - ITAT MUMBAITDS u/s 194C - remittances made by the assessee to the driver partners under the Uber App - non deduction of tds - ‘person responsible for paying’ - addition made u/s 201(1) and 201(1A) - HELD THAT:- ITAT Chandigarh in the case of ANI Technologies Pvt. Ltd. [2023 (3) TMI 515 - ITAT CHANDIGARH] wherein on similar fact and identical issue (OLA App) it is held that Sec. 194C is not applicable on disbursement of fare by the assessee to the drivers. It was also held that there was no contract/sub-contract between the assessee and the driver under which the drivers provides any transportation services either to assessee or to a rider on behalf of assessee for which the driver is paid by assessee. The contract for transportation services is between the driver and the rider and the assessee only facilitates the entire process in the capacity of an aggregator. Also in the case of the assessee itself on similar issue and identical fact [2021 (3) TMI 326 - ITAT MUMBAI] wherein the issue was decided in favour of the assessee as held insertion of clause (v) in section 204 of the Act is effective only from 1.4.2020 i.e. applicable from Asst Year 2020-21 onwards and not earlier. We find that this amendment makes it very clear that any person who is authorized to make payment on behalf of a non-resident will be covered within the purview of section 204 of the Act and will be required to deduct tax at source. It is not the case of the revenue that the assessee company need to be taxed as an agent of non-resident in terms of section 163 of the Act. It is the case of the revenue that UISPL is making payment to Driver-Partners on behalf of Uber B.V. ( non-resident entity). If the version of the revenue is to be accepted by holding that UISPL would be ‘person responsible for paying’ as it was making payment to Driver-Partners on behalf of Uber B.V. (Non-resident) and that the said provision was always there in the statute, then there would be absolutely no necessity for the parliament to even introduce this amendment by way of insertion of clause (v) in section 204 of the Act in the Finance Act 2020 with effect from 1.4.2020. In other words, if the contention of the revenue is to be accepted for the years under consideration before us, then the entire amendment inserted by Finance Act 2020 in section 204 of the Act would become redundant and would be otiose. Even the subsequent amendment brought in section 204 of the Act with effect from 1.4.2020 by way of insertion of clause (v) thereon, would strengthen the stand and various contentions taken by the assessee for the years under consideration. UISPL cannot be treated as a ‘person responsible for paying’ for the purpose of section 194C read with section 204 of the Act, for more than one reason and also the provisions of section 194C of the Act cannot be made applicable thereon. Hence the assessee company i.e. UISPL cannot be treated as an ‘assessee in default’ and no order could be passed u/s 201 / 201(1A) of the Act in its hands for the years under consideration. Decided in favour of assessee.
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