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2016 (7) TMI 178 - ITAT KOLKATA

2016 (7) TMI 178 - ITAT KOLKATA - TMI - TDS u/s 194J - non deduction of tds - recovery of dues - Held that:- It is not clear from the records as to what is the component of the professional charges paid beyond ₹ 20,000/- so as to determine the liability to TDS u/s 194J of the Act. In these circumstances, we deem it fit to grant early hearing of these appeals on 05.09.2016 and till such time, the revenue is directed not to take coercive measures for recovery of the dues from the assessee in .....

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T, Sr. DR ORDER Per M. Balaganesh, AM By virtue of the Stay Petitions the assessee seeks 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 asses .....

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rtaking 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 available with them . 2.1. The ld. AO passed an assessment order u/s 201(1)/201(1A) of the Act raising a demand of ₹ 1,88,19,130/-. ₹ 1,88,31,059/- and ₹ 1,84,75,692/- for the A.Yrs. 2006-07, 2007-08 and 2008 .....

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c.194J of the Act. As canvassed by the learned counsel for the assessee, elements of payment towards room services, medicines, OT charges, investigation and procedure, implants, other expenses, etc. do not strictly fall within this scope of "Fee for Professional Services" which alone can be considered as falling within the scope of provisions of Sec.194J of the Act. Accordingly. A.O. is directed to bifurcate the payments made by the assessee company to the hospitals/institutions into v .....

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dingly directed to amend his order u/s 201 of the LT. Act. Therefore, this ground is partly allowed. 17. In its common grounds of appeal, the appellant has also submitted that the A.O. ignored the binding decision of the Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages Pvt. Ltd. reported 293-ITR-226 while raising tax .liabilities on it u/s.201(1)/201(1A) of the LT. Act. On this point the A.R. has explained that in the said case the Hon'ble Supreme Court has held that if .....

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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 institution .....

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ctions of the ld. CIT(A) , the assessee filed a submission dated 3rd June, 2013 before ACIT (TDS) submitting the details available with it and by also stating that the concerned hospitals/nursing homes to whom the payments were made by the assessee were duly assessed to tax and in view of the decision of the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages Pvt. Ltd reported in 293 ITR 226 (SC), the assessee shall not be treated as assessee in default towards the TDS liability. .....

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he ld. AO considered the investigation charges and investigation procedure charges also to fall within the ambit of section 194J of the Act. In the said order dated 21.03.2014 the total demand of ₹ 77,27,520/-, ₹ 72,22,589/- and ₹ 78,30,693/- for the A.Yrs. 2006-07, 2007-08 and 2008-09 respectively were raised by the ld. AO. The assessee is seeking stay of those demands before us. The assessee also preferred an appeal before the ld. CIT(A) against this order dated 21.03.2014 wh .....

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hich the assessee is in appeal before this Tribunal which is yet to be listed for hearing. 2.3. In the meanwhile the ld. AO had issued a letter dated 11.05.2016 directing the assessee to make the entire payment of the outstanding demand within three days from the date of receipt of the 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 perso .....

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he 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 payments made beyond .....

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rt in the case of Hindustan Coca Cola Beverages (P)Ltd (supra) with verification of the subject mentioned payments from the records of the hospitals / nursing homes and bifurcating the professional charges below ₹ 20,000/- and above ₹ 20,000/- in order to fasten the liability of the TDS on the assessee for the same. He argued that even the certificate issued u/s 197 of the Act by the TDS Wing of the department directing the payers (assessee herein) to deduct 0% tax on payments made t .....

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(A) on the allotted day. He argued that in any case, the ld. CIT(A) ought to have appreciated the fact as to whether the assessment framed by the ld.AO was in accordance with the earlier directions issued by the ld. CIT(A) and whether the same is in accordance with law. The ld. AR argued that the ld. CIT(A) also equally erred in deciding the entire issue exparte against the assessee by violating the basic principles of natural justice. He further argued that the ld. AO had not taken any steps to .....

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n 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 b .....

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