TMI Blog2006 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 117/Del/2004 relevant to the assessment year 2001-2002 and T.D.S No.68/Delhi/2004 relevant to the assessment year 2000-2001 dated 16.9.2005. 2. The facts relevant for the disposal of the present appeals are that the respondent-assessee had taken on lease a premises for the purposes of its Head Office. A separate agreement was entered into for hiring furniture and fixtures provided in the said premises. The assessee was deducting tax at source and depositing the same in respect of the rent in accordance with Section 194-I of the Act, while tax was being deducted at source (for "the short TDS") and deposited on the consideration being paid under the agreement for hire of furniture and fixtures under Section 194C of the Act. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assurance Co. Ltd. [1983] 140 ITR 818 and Gwalior Rayon Silk Co. Ltd. Vs. CIT [1983] 140 ITR 832. 5. The assessee also produced copies of acknowledgments of Returns of the Hirer to show that they had paid tax on their income. The CIT (Appeals) vide order dated 16.12.2003 (in Appeal No.TR-95/2003-04) held that if tax had already been paid by the recipient/deductee, the same could not be recovered from the assessee by treating him as an "assessee in default". The CIT (Appeals) relied upon a CBDT instruction bearing No.275/201/95-IT(B) dated 29.1.1997, the relevant portion whereof reads as follows : ".... that the Board is of the view that no demand visualized under section 201(1) of the IT Act should be enforced, after the tax ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to different assessment years raising the same grievance were also preferred before the Tribunal by the Revenue in respect of the same assessee. All these appeals have been dismissed by the Tribunal by the common impugned order dated 16.9.2005. 8. The ground of appeal urged by the Revenue before the Tribunal reads as follows : "On the facts and in circumstances of the case as well as in law the Ld. CIT(A) has erred in directing the Assessing Officer to charge interest under section 201(1A) from the date of deductibility of tax, (till)(sic) the payment by the deductee as explanation to section 191 inserted by Finance Act, 2003 w.e.f. 1.6.2003 is not applicable to the default committed by the assessee for earlier years." 9. The Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but had not deducted tax at source, could not be asked to pay the same where the deductee had paid it by showing the amount received by him as his income. This is clear from a perusal of Section 191 of the Act, the relevant portion whereof read as follows : "In the case of income in respect of which provision is not made under this Chapter for deducting income tax at the time of payment, and in any case where income tax has not been deducted in accordance with the provisions of this Chapter, income tax shall be payable by the assessee direct." 12. A perusal of Section 191 of the Act shows that where income tax has not been deducted in accordance with the provisions of Chapter XVII, income tax is to be paid by the assessee direct i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding upon the department. 14. Before us the grievance of the Revenue also appears to be that the CIT (Appeals) and the Tribunal have restricted the computation of interest under Section 201(1A) only upto the date on which the deductee paid the tax which ought to have been deducted and deposited by the assessee. Though it is not clearly set out in the appeal, it appears that the Appellant desired to levy interest under Section 201 (1A) for the period even after the payment of tax by the deductee. In this regard we may refer to the averments contained in the synopsis filed by the appellant with its appeal, which read as follows: "The Tribunal has, however, held that after the date on which the payment has been made by the deductee, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce raised by the appellant before us in this appeal is that the Tribunal has held that after the date on which the payment has been made by the deductee, the assessee cannot be held to be an "assessee in default". 18. From a reading of the order of the Tribunal we do not find that the Tribunal has rendered any such finding. All that it has done is that the order of the CIT (A) has been upheld which says that if tax has already been paid by the recipient of such income, it cannot be recovered from the assessee by treating it as "assessee in default". The issue whether the assessee is an 'assessee in default' is wholly academic for the purposes of, and in the facts of the present case, since the liability to deduct tax at source and to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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