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2022 (11) TMI 575 - AT - Income TaxApplicability of percentage of surcharge - HELD THAT:- As in view of the findings arrived by the Ld. First Appellate Authority in the case of co-owner it is clear that the surcharge provisions referred to income and not the transaction amount. Therefore taking into consideration the legislative intention it has to be held that the surcharge applicable in the present case is @ 10%. Default u/s 201(1) - Short deduction of TDS - net tax liability deducted on income from capital gain out of transaction of sale of property to assessee AND the appellant has deducted total amount which is higher than the tax liability of deductee - assessee has purchased immovable property from a non resident and paid consideration of the sale without deducting tax at source as non resident seller had disclosed consideration receipt from assessee in their respective return - HELD THAT:- The order of ITAT Panaji Bench in the case of Shree Balaji Concepts [2022 (5) TMI 1470 - ITAT PANAJI] supports the claim of assessee that where the assessee has purchased immovable property from a non resident and paid consideration of the sale without deducting tax at source as non resident seller had disclosed consideration receipt from assessee in their respective return the assessee could not held as assessee in default as per amended provision of section 201(1) - As we have noted above the seller/payee/deductee had filed return of income for assessment year 2019-20 declaring the income of long term capital gain from the sale of a residential flat to the assessee and had also paid tax thereon then the assessee could not be held as assessee in default u/s 201(1) off the Act. The assessee cannot be treated as assessee in default u/s 201(1) of the Act, in the event, where the seller/payee/deductee a none resident has filed return of income and has offered the long term capital gain accrued to him from transfer of sale of property to the assessee for taxation then the assessee can not be held or treated as assessee in default. Therefore, the orders of the authorities below, in holding the assessee in default for short deduction of TDS is not sustainable as when seller Non-Resident has filed return of income and due tax has been paid by the payee then the appellant gets immunity under first proviso to section 201 (1) of the Act thus she cannot be treated as assessee in default. - Decided in favour of assessee.
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