TMI Blog2012 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... and that can only be established when it is demonstrated that the recipient of income has not paid due taxes thereon - once assessee furnishes the requisite basic information, the AO can very well ascertain the related facts about payment of taxes on income of the recipient directly from the recipients of income - matter is restored to the file of the AO for fresh adjudication - in favour of assessee for statistical purposes. - I .T.A. No. 477, 478 and 479/Kol /2012 - - - Dated:- 31-7-2012 - Shri Pramod Kumar And Shri Mahavir Singh JJ. Appearances by: Miraj D Shah for the appellant Amitava Ray for the respondent ORDER Per Pramod Kumar: 1. By way of these appeals, the assessee appellant has challenged c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvertisement and publicity and bus hire charges etc, but had not deducted tax at source from these payments. On these facts, the Assessing Officer required the assessee to show cause as to why the assessee not be treated as assessee in default in respect of such non deduction of tax at source and the same not be recovered from the assessee under section 201(1), along with interest under section 201(1A). The stand of the assessee is that the recipients have paid tax on income embedded in these payments, and in the light of Hon ble Supreme Court s decision in the case of Hindustan Coca Cola Beverages Pvt Ltd Vs CIT (293 ITR 226), the taxes cannot once again be recovered from the assessee. This contention is rejected by the Assessing Officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax directly, deductor can be deemed to be an assessee in default in respect of such tax .. 7. It is thus argued that the onus is on the revenue to demonstrate that the taxes have not been recovered from the person who had the primarily liability to pay tax, and it is only when the primary liability is not discharged that vicarious recovery liability can be invoked. Learned counsel contends that once all the details of the persons to whom payments have been made, it is for the Assessing Officer, who has all the powers to requisition the information from such payers and from the income tax authorities, to ascertain whether or not taxes have been paid by the persons in receipt of the amounts from which taxes have not been withheld. It is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x at source is to be visited with three different consequences penal provisions, interest provisions and recovery provisions. The penal provisions in respect of such a lapse are set out in Section 271 C. So far as penal provisions are concerned, the penalty is for lapse on the part of the assessee and it has nothing to do with whether or not the taxes were ultimately recovered through other means. The provisions regarding interest in delay in depositing the taxes are set out in Section 201(1A). These provisions provide that for any delay in recovery of such taxes is to be compensated by the levy of interest. As far as recovery provisions are concerned, these provisions are set out in Section 201(1) which seeks to make good any loss to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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