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2015 (6) TMI 323 - ITAT BANGALORE

2015 (6) TMI 323 - ITAT BANGALORE - TMI - Non deduction of TDS - Assessee in default u/s.201(1) and also levying interest on tax not paid u/s.201(1A) - Consequences of failure to deduct or pay - Held that:- The assessee company has deducted tax at source on these amounts in the subsequent year as and when the same were paid by it.In view of the above, the demand on account of tax u/s.201(1) of the Act, in our view, will no longer survive. The argument that TDS provisions operate on income and .....

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ssion or rent and therefore the commission and rent paid is treated as "income" and therefore the expression income by way of commission or rent is found in these sections. Moreover as person responsible for making payment, it is the duty of the Assessee to deduct tax at source. Sec.194C, 194-J, 194-H and 194-I do not use the expression "Chargeable to tax". As we have already seen, it is not the case of the Assessee that the payments are not chargeable to tax in the hands of the payee. As we hav .....

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lready seen, the Assessee is fully aware of the payee but postpones credit to the account of the payee for want of receipt of invoice. We do not find any merit in the appeals that relate to challenge of levy of interest u/s.201(1A) of the Act. - Decided partly in favour of assessee. - ITA Nos. 749 to 752/Bang/2012 & 1588 to 1591/Bang/2012 - Dated:- 14-5-2015 - N. V. Vasudevan, JM And Jason P. Boaz, AM,JJ. For the Appellant : Shri Padamchand Khincha, CA For the Respondent : Shri C H Sundar Rao, C .....

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Assessee in default u/s.201(1) and also levying interest on tax not paid u/s.201(1A) of the Act. According to the Registry, separate appeals had to be filed against the order of the Revenue in treating the Assessee as an Assessee in default u/s.201(1) and separate appeals had to be filed in respect of the action of the revenue in levying interest on tax not paid u/s.201(1A) of the Act. Hence the Assessee has filed appeals being ITA Nos.1588 to 1591/Bang/2012 which relate to challenge to levy of .....

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quarter, within 3 days of the end of every quarter. In respect of expenses for which invoices have been submitted or the payments have become due in respect of the expenses, the same are accounted for and if Tax Deduction at source (TDS) is found to be applicable on these expenses, the same is accounted for. However, in respect of expenses in respect of which only service/work has been provided/performed by the vendors, but for which the invoices have not been furnished or in respect of which t .....

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ge of having received the services and incurred an expense for it, the Assessee recognises such expenses by providing for it as of the year end. Such expense provisions are however created on reliable estimates of the payment that is expected to be made on the settlement dates in future, that fall in the next accounting year. In the subsequent financial years, the provision entries are reversed and on receipt of invoices in respect of the respective expenses, the same are recorded as liabilities .....

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possible for the Assessee to identify parties or if parties are identified to arrive at the exact sum on which TDS is to be done. 4. The provision so created by the Assessee in the books of accounts for the various assessment years are as follows:- F.Y. 2005-06 Particulars Amount Section Percentage Amt to be deducted Interest Sub-contracting charges 196063727 194C 1.13% 210250 1766116 Commission 23787112 194H 5.65% 1343971 1128936 Professional charges 24241731 194J 5.65% 1369657 1150512 Contrac .....

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077 Recruitment 46079329 194C 2.26% 1041392 749802 Repair & Maintenance 4420775 194C 2.26% 99909 71934 General Exp. - Education Exp. 92581732 194C 2.26% 2092347 1506489 Rent 174993369 194I 22.66% 39653497 28550518 Other Expenses 16154003 194C 2.26% 365080 262857 Foreign payments 1134433077 195 10% 1344330 967917 TOTAL 2905450542 64461892 46412559 FY 2007-08 Particulars Amount Section Percentage Amt to be deducted Interest Commission 233671617 194H 5.65% 13202446 7921467 Subcontracting 479760 .....

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t Professional fees 816228909 194J 11.33% 92478735 44389792 Contractors/subcontractors 243440622 194C 2.26% 5501758 2640843 Foreign payments 112899026 195 15% 169348804 81287425 Commission 234463891 194H 11.33% 26564759 12751084 Rent 273153222 194I 22.26% 61896520 2971032 Others 1368936161 194C 11.33% 155100467 74448224 Total 4065214831 510891043 218488400 5. According to the revenue, in respect of the provision so created by the Assessee in the books of accounts, tax at source was deductible in .....

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eable under the Act, which is payable outside India or in India to a non-resident, not being a company or to a foreign company, the same shall not be allowed as deduction while computing "Income from Business". In terms of sec.40(a)(ia) of the Act, if tax is deductible at source under Chapter XVII-B of the Act and where it is not so deducted at source on the amount of any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services pay .....

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e head "Profits and gains of business or profession",- (a) in the case of any assessee- (i) any interest (not being interest on a loan issued for public subscription before the 1st day of April, 1938), royalty, fees for technical services or other sum chargeable under this Act, which is payable,- (A) outside India; or (B) in India to a non-resident, not being a company or to a foreign company, on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted .....

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in which such tax has been paid. Explanation.-For the purposes of this sub-clause,- (A) "royalty" shall have the same meaning as in Explanation 2 to clause (vi ) of sub-section (1) of section 9; (B) "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9; (ia) any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident, or amount .....

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or, has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under sub-section (1) of section 200, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. Explanation.-For the purposes of this sub-clause,- (i) "commission or brokerage" shall have the same meaning as in clause (i) of the Explanation to section 194H; (ii)"fees for technical services" shall have t .....

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on (1) of section 9;" 7. The Assessee while filing return of income for the various assessment years referred to above, disallowed on its own the amounts referred to in the chart above in the computation of income because in terms of Sec.40(a)(i) and sec.40(a)(ia) of the Act, the above amounts are not allowable as deduction. 8. Another consequence, apart from disallowance of the relevant amount while computing income from business, is that the Assessee is liable to proceeded against u/s.201 .....

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O, the Assessee was therefore liable to treated as Assessee in default and was also liable to pay interest on tax payable. "Consequences of failure to deduct or pay. 201. (1) If any such person referred to in section 200] and in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct the whole or any part of the tax] or after deducting fails to pay the tax as required by or under this Act, he or it shall, without preju .....

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pal officer or company as is referred to in that sub-section does not deduct the whole or any part of the tax or after deducting fails to pay the tax as required by or under this Act, he or it shall be liable to pay simple interest at twelve per cent per annum on the amount of such tax from the date on which such tax was deductible to the date on which such tax is actually paid and such interest shall be paid before furnishing the quarterly statement for each quarter in accordance with the provi .....

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ous amounts for the various Assessment Years in the chart set out above, by making disallowance u/s.40(a)(i) & 40(a)(ia) of the Act of the amounts referred to in the chart above in the return of income filed for the various assessment years, the AO initiated proceedings u/s.201(1) & 201(1A) of the Act against the Assessee. 10. In reply to the show cause notice issued u/s.201(1) & 201(1A) of the Act, the Assessee submitted that invoices were not received in respect of the underlying e .....

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was obligation to deduct tax at source even when the amount is credited to a "Suspense Account", there should be legal liability to pay and the payee should be known and only then the obligation to deduct tax at source arises. The Assessee also submitted that the provision entries are reversed in the subsequent financial year(s) and necessary taxes are withheld at source at the time of actual payment (when legal liability to pay arises and the identity of the party is known). 11. The .....

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using CBS software, interest payable on time deposit is calculated generally on daily basis or monthly basis and is swept and parked accounting in the provisioning account for the purposes of macromonitoring only. However, constructive credit is given to the depositors/payees account either at the end of the financial year or at periodic intervals as per practice of the bank or as per the depositors'/payees requirement or on maturity or on encashment of time deposits, whichever is earlier. .....

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r the purpose of this section, where any income by way of interest as aforesaid is credited to any account, whether called 'Interest payable account' or 'Suspense Account' or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly". 2. Representations have been received from Indian Banks Association (IBA .....

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of the financial year or at periodic intervals as per practice of the bank or as per the depositor's / payee's requirement or on maturity or on encashment of time deposits; whichever is earlier. 3. The matter has been considered by the Board. Explanation to section 194A was introduced with effect from 1.4.1987 by the Finance Act, 1987 to plug the loophole of avoiding deduction of tax at source by crediting interest in the books of accounts under accounting heads 'interest payable ac .....

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on daily or monthly basis in the CBS software used by banks, tax need not be deducted at source on such provisioning of interest by banks for the purposes of macro monitoring only. In such cases, tax shall be deducted at source on accrual of interest at the end of financial year or at periodic intervals as per practice of the bank or as per the depositor's / payee's requirement or on maturity or on encashment of time deposits; whichever event takes place earlier; whenever the aggregate o .....

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ove submission of the Assessee for the following reasons:- 1. The AO called upon the Assessee to explain the basis on which the provision was quantified. According to the AO the Assessee did not explain as to how the expenses have been quantified. 2. According to the AO the explanation of the Assessee was that it recognises the expenses in the financial year in which invoices are received in respect of the underlying expenses. When no invoices are received the booking of such expenses in the acc .....

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the booking of expenses based on invoices done in subsequent year is routed through the profit and loss A/c. This shows that the reversals are taken as income and the expenses booked on receipt of invoices are included in current expenses of that year. Though it is considered that the whole of disallowance made in the computation U/s 40(a)(ia) is reversed since this amount is claimed as deduction in the computation in the year when TDS is made, whether the whole of the amount is again booked and .....

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ead to the allowing of the expenditure by one year prior to the incurring of the actual expenses. According to the AO, though there is no claim of expenses as the same is added back U/s 40(a)(ia), treating of such disallowance as a provision towards contingent liability cannot be ruled out. The details of the TDS made on such provisions made at the end of the year is also provided by the assessee on sample basis, contending that the number of entries are huge and hence cannot be provided in full .....

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not paid to the credit of the Central Government. 16. Before CIT(A), the Assessee explained the manner in which Provision was created in the books and how the same was reversed and actual expenses booked in the profit and loss account and the point of time at which TDS is made and paid to the Government. Before CIT(A), the Assessee provided a summary of the year-end provision for the FY relevant for AY 2007-08 amounting to Rs, 209,31,30,953/-. Scrutiny of the same revealed that the provision con .....

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cial year-end); • Reversal of the Expenses provided (in the subsequent financial year); • Actual Booking of expense liabilities (based on vendor invoices) and TDS thereon; and • Payment of TDS to the credit of Central Government. 17. The following chart was produced by the Assessee with regard to "Commission to selling agents - ORC commission" to buttress the above argument:- Table 3 Month of entry Amount of Provisions - Accrued/ (Reversed) in Rs.) Actual expenses booked .....

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rs, actual expenditure based on invoices were being booked and TDS was being deducted and duly paid to the credit of the Central Govt. In this connection, copies of challans evidencing payment of TDS on the commission to selling agents/ORC commission totaling to ₹ 23,36,71,818/- (Rs. 1,33,84,537/- + ₹ 22,02,87,281/-) on various dates were furnished:- 05-05-2007 - ₹ 13,96,863/- 07-06-2007 - ₹ 16,43,674/- 06-08-2007 - ₹ 16,53,150/- 06-09-2007 - ₹ 1,00,94,276/- 0 .....

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endor liability) were booked. TDS was done at the time of actual expense booking. At the time of reversing the provisions in the subsequent year, these provisions were credited to the P & L A/c and the profit for the subsequent year was inflated to that extent. When the actual expenses were booked (i.e. the vendor liability), the same was debited to the P & L A/c, it was pointed out that any short/excess provisions would therefore automatically get adjusted in the P&L A/c. In the Ret .....

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a fundamental rule of law that the same income could not be taxed twice. Reliance was placed on Supreme Court ruling in the case of ITO, "A" Ward, Lucknow Vs Bachu Lal Kapoor [60 ITR 74] wherein this principle was considered that the provisions of the Income Tax Act did not envisage double taxation of same income. 19. The basis of quantification of the provision for expenses was explained by the Assessee as follows:- "3.3 As regards the basis for quantification of the provisions .....

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yable systems which may be either because the invoices were not due as per the contract between the appellant and the vendor or because the vendor had not made a claim on the appellant. Therefore, pending a demand made by the vendors on the appellant, the appellant merely made accounting provisions in its books of accounts based on the purchase orders and estimates of the probable amounts that could be raised on the appellant by the vendors. With regard to the break-up provided by the appellant .....

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eceived or purchase order raised which were incurred on a recurring basis such as rent, etc., provisions were made based on the past years data. For certain expenses, it was stated that if the monthly expenditure was constant, then a provision of same amount would be made for the last accounting month. Further, if there was a progressive increase in the amount of expenditure on a month-on-month basis or year-on-year basis, the same progression percentage was considered for accounting the provisi .....

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ext, the appellant was directed to furnish instances of expenses incurred on a recurring basis, instances of past years data relied upon as well as a write-up on constant expenses suitably backed by corroborative evidence. None of the above particulars were provided at any point of time during appellate proceedings. 3.3.2 As for the consolidated Provision A/c called for in r/o of all 4 AYs with opening balances, entries made relating to transactions made during the year and closing balances, vid .....

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nting the vendor invoice, in so far as TDS was concerned it was pointed out that broadly there could be four possibilities: - TDS applies on the amount mentioned in the vendor invoice (and accordingly TDS is made by IBM) - TDS doesn't apply on the vendor invoice owing to the vendor having provided a NIL withholding/lower withholding certificate from the Income-tax Department as per section 197 of the Act. - TDS doesn't apply on the vendor invoice as the vendor liability pertains to amoun .....

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06-07 was furnished as under:- Table 4 Particulars Amount (in Rs.) Amount (in Rs.) Year end provisions as per Tax Audit Report (A) 87,03,90,662 Subsequent payments suffering TDS 63,43,23,399 Subsequent payments on which TDS is not applicable 19,22,10,319/- Subsequent vendor payments for which vendor has nil withholding certificates 19,58,393 Total subsequent payments 82,84,92,111 Reversal of provisions with no subsequent payments 3,87,03,702 Miscellaneous / Exchange rate difference 31,94,849 Tot .....

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ropriate in the immediately succeeding financial years on such expenses. The CA certified that the procedures performed solely for the said financial years was carried out in the immediately succeeding financial year in r/o "Sub-contracting" and "Commission" expenses only. Its first step was to examine whether the expense provision accruals made (which were disallowed u/s 40(a)(ia) of the Act) were reconciled with the subsequent vendor payments made against these provisions. .....

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ion FY of 40a disallowance Amount as per Tax Audit Report Subsequent payments reconciled Reversal of provision Total Coverage 2005-06 88,23,629 89,97,179 - 89,977,179 102.0% 2006-07 23,36,17,817 12,55,32,537 10,95,39,468 23,50,72,005 100.6% 2007-08 23,44,63,891 14,24,40,793 9,91,47,524 24,15,88,31 103.0% 2008-09 9,92,92,523 9,66,74,505 4,23,65,028 13,90,39,533 140.0% Table - 5(a) Subcontracting FY of 40a disallowance Amount as per Tax Audit Report Subsequent payments reconciled Reversal of provi .....

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t for expenditure has to be made. The accounting practice followed by the Assessee was contrary to the mercantile system of accounting. (ii) The claim of the Assessee that it creates provision in the books of account on an estimated basis in some cases, on a historical basis in other and using some sort of arithmetical or geometric progression in others, was not acceptable. The Assessee had not established this plea with concrete evidence. The conclusion therefore is that the Assessee has full k .....

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ppeals before the Tribunal. 23. We have heard the submissions of the learned counsel for the Assessee and the learned DR. The learned counsel for the Assessee at the outset brought to our notice that pending disposal of the appeals, the Assessee had furnished before the AO, details regarding the actual payment of TDS in subsequent financial year, on the provisions made in the various financial years. These details were verified by the AO. The AO has addressed a letter to the DR in which the AO a .....

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e in the subsequent year on all the amounts that was disallowed u/s. 40a(i) and 40a(ia) as and when these amounts were paid. The Hon'ble ITAT therefore directed that such details be produced before the Income Tax Officer (TDS) for verification. 4. At the remand stage the assessee company has now submitted year wise details of rental charges paid, professional charges paid, contract amounts paid and details of other payments. The details of year end provisions as per tax audit report (disallo .....

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cted randomly and after analysis of consolidated annual figures separately for each sections of TDS, it is seen that the amounts which were shown as provisions as on 31 March of a particular year, whether either liquidated by way of payment or was added back to the profit and loss account in subsequent year. Wherever payments were made tax has been deducted at source under the relevant provisions of the IT Act and remitted to the Govt. account. 5. Though, the tax has been deducted at source at t .....

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med to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly. Similar provisions / explanation is also to be found in other sections relating to TDS. Thus, it can be seen that the assessee company has failed to deduct tax at source on the provisions made by it as at 31st March within the stipulated time. The assessee company has deducted tax at source on these amounts in the subsequent year as and when the same were paid by it. Thus, it i .....

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whether the TDS provisions are attracted when the Assessee makes a provision for expenditure in the books of accounts, the learned counsel for the Assessee made submissions which are identical to submissions made before the AO/CIT(A). His submissions were:- 1. When payee is not identified there can be no charge u/s.4(1) of the Act and therefore there can be no obligation to deduct tax at source. 2. The returns of TDS to be filed under the Income Tax Rules, 1962 contemplates furnishing of names .....

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e on his own had disallowed the expenditure in question u/s.40(a)(i) & 40(a)(ia) of the Act. The disallowance u/s.40(a)(i) & 40(a)(ia) of the Act arise only when there exists a liability to deduct tax at source in terms of Chapter-XVII-B of the Act. The Assessee having on his own disallowed expenditure u/s.40(a)(i) & 40(a)(ia) of the Act cannot now turn around and say that there was no obligation to deduct tax at source. (2) The Assessee does not account for expenditure on accrual ba .....

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that the payee is not identified. Even in such a situation the Assessee has to comply with the TDS provisions. (4) The method of accounting followed by the Assessee results in postponement of time at which tax had to be remitted to the credit of the Government. This can be seen from the fact that the Assessee in some cases is found to be liable to charge of interest u/s.201(1A) of the Act for about 84 months. The question whether the Assessee is indulging in a deliberate exercise in this regard .....

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o tax in the hands of the payee in India. (6) The CBDT circular No.3/2010 is in the context of banks crediting interest on fixed deposits of customers and the decisions rendered by the judicial forums based on those circular are all not relevant as the same are relevant only in the case of Banks and cannot be pressed into service in other cases such as the case of the Assessee. 27. We have carefully considered the rival submissions. Provisions of Sec.40 of the Act start with a non obstante claus .....

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ter XVII-B and such tax has not been deducted or, after deduction, has not been paid during the previous year, than the expenditure cannot be claimed as a deduction. Sec.200(1) appears in Chapter XVII-B of the Act and it provides that any person deducting any sum in accordance with the foregoing provisions of this Chapter i.e., Chapter XVII-B shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as the Board directs. Sec.201(1) of the Act is trigger .....

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o say that there was no default under chapter XVII-B of the Act is therefore correct. The disability u/s.40(a)(i) & 40(a)(ia) of the Act, and the liability and Sec.201(1) of the Act cannot be different and they arise out of the same default. Once there is a disallowance u/s.40(a)(i) & 40(a)(ia) of the Act, it is not possible to argue that there was no liability under chapter XVII-B of the Act and therefore the provisions of Sec.201(1) of the Act will not be attracted. 28. Now let us exam .....

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king any distribution or payment to a shareholder. 29. Sec.194-C applies when payment is made to contractor. The point of time at which tax had to be deducted at source is at the time of credit to the Account of contractor or payment in cash or cheque, whoever is earlier. Sub-Section (2) of Sec.194-C lays down that where any sum referred to in sub-section (1) is credited to any account, whether called "Suspense account" or by any other name, in the books of account of the person liable .....

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he reason for introduction of provisions such as Sec.194(2) of the Act has been explained in CBDT circular No.550 dated 1.1.1990 as follows: "26.3 Under the existing provisions of section 193 of the Incometax Act, tax has to be deducted at source by the person responsible for making any payment in the nature of interest on securities at the time of payment. The liability to deduct tax at source was being postponed by making a provision for such payment. In order to prevent the postponement .....

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isions that the liability to tax at source exists when the amount in question is credited to a "suspense Account" or any other account by whatever name called, which will also include a "Provision" created in the books of accounts. Therefore it is not possible for the Assessee to argue that there was no accrual of expenditure in accordance with the mercantile system of account and therefore the TDS obligations do not get triggered. 31. With regard to the argument of the learn .....

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mercantile system of accounting. The claim of the Assessee that it creates provision in the books of account on an estimated basis in some cases, on a historical basis in other and using some sort of arithmetical or geometric progression in some other cases was not acceptable. The Assessee had not established this plea with concrete evidence. The conclusion of the CIT(A) that the Assessee has full knowledge of what is due to its Vendors, subcontractors, commission agents etc. Therefore there wa .....

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in a later Assessment Year, the tax on such income shall be payable by deduction or collection at source or by advance payment". Sec.190(2) of the Act provides that "Nothing in Sec.190 shall prejudice the charge of tax on such income under the provisions of Sec.4(1) of the Act."The statutory provisions therefore clearly envisage collection at source de hors the charge u/s. 4(1) of the Act. The sum collected by way of tax collection at source is appropriated as tax paid by the paye .....

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t to the credit of the Central Government. The person making payment after deduction of tax at source gets a valid discharge in law for the entire amount paid. 33. As rightly contended by the learned DR, the CBDT Circular No.30/2010 is a specific circular applicable in the case of Banks and issued under peculiar circumstances. The Assessee cannot take shelter under the said Circular. 34. The argument that TDS provisions operate on income and not on payment, in the facts and circumstances of the .....

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re the commission and rent paid is treated as "income" and therefore the expression income by way of commission or rent is found in these sections. Moreover as person responsible for making payment, it is the duty of the Assessee to deduct tax at source. Sec.194C, 194-J, 194-H and 194-I do not use the expression "Chargeable to tax". As we have already seen, it is not the case of the Assessee that the payments are not chargeable to tax in the hands of the payee. As we have alr .....

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o.478/Bang/2012 for AY 07-08 order dated 7.3.2014, the question for consideration was obligation to deduct tax at source in respect of provision created in the books towards commission payable under Sec.194-H of the Act. The Commission agent had undertaken to sell product, collect amounts from customers and also obtain C forms. The sale through the agent had concluded. The commission payable was shown as "provision" since the agent had to collect the amounts from customers and also obt .....

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idered by the Tribunal. In that sense it can be said that the precedent is sub silentio and therefore not binding. Besides the above, in the present case the Assessee's claim that there was no accrual of liability, as we have already seen is not correct. 36. The next decision on which the learned counsel for the Assessee placed reliance was that of the ITAT Pune Bench in the case of DCIT Vs. Yeota Merchants Co-op.Bank Ltd., ITA No.805/PN/2011 for AY 07-08 order dated 31.8.2012. In the afores .....

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al of liability nor was the payee known and therefore TDS provisions were not implemented due to peculiar situation and therefore the disallowance u/s.40(a)(ia) of the Act was deleted. In the present case, as we have already seen, there is nothing to show that there was no accrual of liability nor was there any statutory liability that existed. 37. The next decision on which the learned counsel for the Assessee placed reliance was the decision of ITAT Bangalore in the case of Bovis Lend Lease (I .....

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endered by the non-resident and sums due to the non-resident were credit in an outstanding expenses account. The account of the non-resident was however credited after receipt of invoice which was in a later financial year. The Assessee had obtained order u/s.197 of the Act for non-deduction of tax at source and remitted the amount to the non-resident without deduction of tax at source. The revenue initiated proceedings u/s.201(1) of the Act on the ground that the certificate u/s.197 was not val .....

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belatedly also. From this probably he wants to conclude that TDS obligation arises only at the time of credit to the account of payee or actual payment whichever is earlier. This decision, in our view, is not applicable to the present case. As we have already seen, the law provides for a deeming fiction fore e.g. Sec.194C(2), deeming credit to a suspense account as a credit to the account of the payee. This fiction is neither considered nor dealt with any of the orders cited by the learned couns .....

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he Hon'ble Karnataka High Court in para-63 observed that where existence of income in the hands of the payee is absent there can be no TDS obligation. The learned counsel for the Assessee has placed reliance on the above observation. In our view the question before the Court was different and the issue with which we are concerned in the present appeals was never under consideration by the Hon'ble High Court. It is possible to pick words from a decision and use it out of context. 39. In t .....

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