TMI Blog2015 (2) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... OF 2014 - - - Dated:- 14-11-2014 - RAJPAL YADAV AND JASON P. BOAZ, JJ. For The Appellant : V. Srinivasan, CA For The Respondent : Dr. Shankar Prasad, (DR) ORDER 1. The present stay applications are directed at the instance of the appellants for grant of ad interim stay of the outstanding demand during the pendency of appeals. However, while going through the record, we deem it appropriate to hear the appeals itself, because the issue involved in all the three appeals is common and covered by the decision of the Hon'ble Supreme Court in the case of GE India Technology Cen. (P) Ltd. v. CIT [2010] 327 ITR 456 r.w. instruction No.2/2014 dated 26.02.2014 issued by the Board. Therefore, with the consent of both the repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 crores and the cost of stamp paper and registration charges was a sum of ₹ 12,30,475/-. Thus, she had made investment in the new residential house at ₹ 1,62,30,475/- which was eligible for exemption u/s 54 of the Income Tax Act. Thus according to the assessee, in the payments made by them, the nature of income chargeable to tax ought to be embedded, only then they are required to deduct the TDS, since no such income was embedded upon which the taxes are to be levied. Therefore, they have not deducted the TDS. 4. The learned Assessing Officer has observed that section 195 contain in itself a procedure where an assessee feels necessity of any clarification on account of non deduction of taxes, he can move an application u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd (supra), the TDS in the payments required to be made u/s 195(1) ought to be deducted, if the element of income in such payment is involved. The Board has considered this aspect and thereafter laid down the guidelines. The Board has appriased its Officers that while treating any assessee in default u/s 201 of the Act and determination of appropriate portion of the sum will depend on the facts and circumstances of each case taking into account the nature of remitance. In this case the vendors have made investment in house property in the month of May, 2011. This investment was made within the window period for claiming exemption u/s 54 of the Act. Therefore, when they sold the property they were aware that the amount which the vendors are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxes is dependent upon many circumstances such as exemption, deduction etc. However, in the present case when the appellants have made payments, they were sure because of the facts brought to their notice that these payments does not involve payment of taxes. The vendor is entitled for exemption. There could be a circumstance; where vendors have some other capital gain which could be adjusted against the investment in house property?, but the vendors are the family members. They have apprised the assessee's about the investment. They must have pointed out that no liablity of taxes would be there. Therefore, no need to deduct the TDS. The facts of the present case ought to be seen by the learned CIT (A) in the light of the circular iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to whether the tax is to be deducted under subsection (1) of section 195 on the whole sum being remitted to a non-resident or only the portion representing the sum chargeable to tax, particularly if no application has been made under subsection 2) of section 195 of the Act to determine the sum. 3. The matter has been examined in the Board and accordingly, in exercise of powers vested under Section 119 of the Act, the Board hereby directs that in a case where the assessee fails to deduct tax under section 195 of the Act, the Assessing Officer shall determine the appropriate proportion of the sum chargeable to tax as mentioned in subsection (1) of section 195 to ascertain the tax liability on which the deductor shall be deemed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with her siser Mrs. Saida Amir Ali had sold immovable properties inherited from her father for a total sale consideration of ₹ 2,57,24,000/- during the relevant previous eyar. The transctions were registered vide two sale deeds both dated 16.09.2011 (Regd. As Doc. No.5062 and Doc. No.5065) in respect of land to the extent of 6.9750 acres and residential building with appurtenant land measuring 1.73 acres respectively. As per the affidavit submitted by the assessee, she had 2/3rd right in the said properties and her sister Mrs. Saida Amir Ali had 1/3rd right. The property comprising land only has been sold for a consideration of ₹ 2,00,00,000/- and the second property comprising residential buildign and land has been sold for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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