TMI Blog2016 (7) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... to keep the demands of ₹ 77,27,520/-, ₹ 72,22,589/- and ₹ 78,30,693/- for A.Yrs. 2006-07, 2007-08 and 2008-08 respectively in abeyance. 2. The assessee is a Third Party Administrator engaged by the Public Sector Insurance Companies for settling claims of insured persons under the Mediclaim Insurance Policies. A Survey u/s 133A of the Act was conducted wherein the ld. AO found that the assessee had not deducted tax at source on the payments made by it to various hospitals/nursing homes under the cash-less scheme. According to the ld. AO provision of section 194J of the Act would become applicable on the said payments. In the first round of proceedings, the assessee had preferred a writ before the Hon ble Calcutta High Court wherein an interim order in WP .No.10 of 2010 dated 06.01.2010 was passed with the following directions :- So far as the past payments are concerned, since undertaking has been given by the Learned Additional Solicitor general that no coercive action shall be taken, no order is passed. However, it is expected that the petitioner shall co-operate with the Income Tax Authorities regarding production of documents to the extent it is availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. He has claimed that the Hospitals to whom the appellant made payments under the Cash-less scheme are all assessed to Income Tax. He has requested that the A.O. may be directed to allow an opportunity to the appellant to produce necessary evidences and thereafter pass a fresh order on this issue in the light of the Hon'ble Supreme court decision referred to above. This issue was earlier remanded to the A.O. on 12.04.2012 regarding filing of returns u/s 139 by the hospitals and institutions to whom payments were made by the appellant and he was directed to examine the appellant's claim and submit a report. But so far, no such report has been received from him. Keeping in view these facts and circumstances, the A.O. is directed to verify with these hospitals and institutions/charitable institutions about filing of return and payments of taxes therein and the appellant is entitled to get relief on account of Supreme Court Judgment In case of Hindustan Coca Cola Beverages Pvt. Ltd. reported 293-ITR-226 (supra). A.O. is directed to modify his order u/s 201 and charge interest u/s 201(lA) in accordance with the Circular No. 8 dt.24.11.2009. Therefore this ground is partly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said letter. The assessee has preferred the Stay Applications before us for all the three years. The ld. AR argued that the assessee is only an agent of Public Insurance Companies and it cannot be treated as person responsible for deducting tax at source in terms of section 204 of the Act. In any case, the assessee is making the payment on behalf of the insurance companies to various hospitals/nursing homes and these hospitals/nursing homes in turn make payment of professional charges to various doctors which would invariably be below ₹ 20,000/-. Accordingly there was no obligation for the assessee to deduct tax at source in terms of section 194J of the Act as no professional charges were paid by the assessee. He further stated that however pursuant to the Board Circular No.8/2009 dated 24.11.2009 , the assessee had started deducting tax at source in respect of payments made to various hospitals/nursing homes from that date onwards. However for the A.Yrs. under dispute there was no clarity with regard to the obligation of TDS on the part of the Third Party Administrator like the assessee. He further argued that the assessee does not maintain the details of the various payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of the payees so that fair decision could be taken in the light of the verdict of the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverges Pvt. Ltd. (supra). Under these circumstances directing the assessee to produce the records which did not possess would only amount to impossibility of performance. When there is an alternative recourse available with the revenue for obtaining the records for better appreciation of the facts, the assessee should not be fastened with unwarranted tax liabilities and any recovery proceedings initiated for the same would only result in genuine hardship and balance of convenience is very much in favour of the assessee. Accordingly he prayed for keeping the demand in abeyance till the disposal of the main appeals by the tribunal on merits. 3. In response to this the ld. DR vehemently objected to the grant of stay and also stated that even as per the arguments of the assessee, there would be some demand in respect of payments made beyond ₹ 20,000/- to hospitals/ nursing homes which would automatically attract TDS in terms of section 194J of the Act and hence the assessee may be directed to pay tax and interest on such undispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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