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2022 (1) TMI 409 - AT - Income TaxTDS u/s 194C or 194I - short deduction of TDS - CAM charges Maintenance Charges along with Rent - period of limitation - assessee-in-default u/s. 201(1) for having short deducted the amount of tax at source - HELD THAT:- As the time limitation for passing an order under sub-section (1) to Section 201 i.e. deeming the present assessee before us, as an assessee-in-default under sub-section (1) to Section 201 could have validly been done within a period of 2 years from the end of the financial year in which the statement u/s. 200 was filed by the assessee, i.e., latest by 31.03.2014, as per the law as was then available on the statute, therefore, the order passed by the AO u/ss. 201(1) /201(1A) dated 29.03.2018 is clearly barred by limitation. We, thus, in terms of our aforesaid observations quash the order passed by the AO u/s. 201(1)/201(1A), dated 29.03.2018 as barred by limitation. The Grounds of appeal Nos. 1 to 3 are allowed in terms of our aforesaid observations. TDS on CAM charges paid by the assessee - liable for deduction of tax at source @10% u/s. 194-I OR @2% u/s. 194C - HELD THAT:- As the CAM charges are completely independent and separate from rental payments, and are fundamentally for availing common area maintenance services which may be provided by the landlord or any other agency, therefore, the same cannot be brought within the scope and gamut of the definition of terminology "rent". On the other hand, we are of the considered view, that as the CAM charges are in the nature of a contractual payment made to a person for carrying out the work in lieu of a contract, therefore, the same would clearly fall within the meaning of "work" as defined in Section 194C of the Act. In our considered view, as the CAM charges are not paid for use of land/building but are paid for carrying out the work for maintenance of the common area/facilities that are available along with the lease premises, therefore, the same could not be characterized and/or brought within the meaning of "rent" as defined in Section 194-I. On the basis of the facts that had emerged in the course of the proceedings, it was gathered by the Department that the owners of the malls in addition to the rent had been collecting CAM charges from the lessees on which TDS was deducted @2% i.e. u/s. 194C of the Act. Observing, that payment of CAM charges were essentially a part of the rent, the AO treated the assessee as an assessee-in-default for short deduction of tax at source u/ss. 201(1)/201(1A) - On appeal, it was observed by the Tribunal that the CAM charges paid by the assessee did not form part of the actual rent that was paid to the owner by the assessee company. As the facts involved in the case of the assessee before us remains the same as were therein involved in the aforesaid case, therefore, in the backdrop of our aforesaid deliberations, and respectfully following the aforesaid order of the Tribunal, we herein conclude, that as claimed by the assessee, and rightly so, the CAM charges paid by it were liable for deduction of tax at source @2%, i.e., u/s. 194C of the Act. We, thus, in terms of our aforesaid observations set-aside the order of the CIT(A) who had approved the order passed by the AO treating the assessee company as an assessee-in-default u/s. 201(1).
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