TMI Blog2017 (11) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... ibutors, since the assessee was under bonafide impression that it could not be treated as a defaulter u/s 201(1) of the Act. ITAT Hyderabad Bench in the case of Idea Cellular Ltd.(2009 (2) TMI 246 - ITAT HYDERABAD-B) had taken a view in favour of the assessee. This aspect has to be taken into consideration while considering as to whether the material filed before the AO is sufficient to prove that the assessee cannot be treated as a defaulter, u/s 201(1A) of the Act. Expecting the assessee to file a certificate of CA at this juncture creates “force majeure” situation, as held by the Hon’ble Madras High Court in the case of S. Hastimal Vs. CIT, [1962 (12) TMI 60 - MADRAS HIGH COURT] wherein observed that assessee cannot be put on the neck, after a lapse of more than 10 years, to furnish details beyond a particular point. Assessee having furnished the basic details i.e. list of declarations collected from the concerned distributors for the above AYs along with turnover and income-tax returns filed by them, it should be treated as sufficient compliance and interest should not have been charged u/s 201(1A) of the Act from the dates when the recipients have filed returns. - ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sesse that the provisions of section 194H are not applicable, was rejected by the TDS Officer as well as CIT(A). On further appeal, the Tribunal confirmed the order of the AO and the Hon ble High Court did not entertain appeal on the ground that the order passed by the Tribunal on merits is justified and no substantial question of law arises. 4. As the things stood thus, the alternative contention of the assessee was that in the light of the decision of the Hon ble Apex Court in the case of M/s Hindustan Coco Cola Beverages Pvt. Ltd., 293 ITR 226, assessee cannot be treated as a defaulter since the distributors have filed returns and offered the amount to tax and consequential interest cannot be charged to tax in the light of the aforesaid decision. However, based on the submissions of the assessee, CIT(A) gave relief to the assessee u/s 201(1A) of the Act, by observing as under: 9.3 In view of the above discussion, the AO is directed to verify the veracity of the claim of payment of taxes by the recipients/payees from the payment received from the appellant and give credit for the same and tax the balance, if any, under section 201(1) of the Act and charge interest u/s 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered from the assessee since it amounts to double taxation. Reliance was also placed upon the decision in the Cash of Ramakrishna Vedanta Math Vs. ITO, 24 Taxmann.com 29, wherein it was held that so long as an assessee furnishes requisite/basic information, AO can very well ascertain, related facts about payment of tax on income of the recipient, directly. In other words, it is not the case of revenue that such an exercise by the AO is not possible, in which event, assessee cannot be treated as a person in default. In the written submissions, reliance was also placed upon the ratio of the decision of the Hon ble Lucknow Tribunal of ITAT in the case of ICICI Bank Ltd, 36 Taxman.com 433, wherein it was held that primary responsibility to pay tax is on deductees and only upon non-payment of tax, vicarious Liability is on the deductor. Once the basic information of the deductees is provided, it is for the AO to ascertain whether the receipts are accounted for in their income tax returns. In the case of Vodafone Essar Ltd. Vs. DCIT the ITAT Mumbai Bench observed that it is for the AO to verify the factual position of the declarations since the assessee cannot be expected to obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liability u/s.201(1) and 201(1A) of the Income-tax Act, 1961. 8. Aggrieved by the direction given by the CIT(A), revenue preferred appeals by stating that as per the provisions of section 201(1) and 201(1A) of the Act, onus is upon deductor to satisfy the other conditions, i.e., the deductee has furnished its return of income and has taken into account such sum for computing its income, apart from payment of tax dues on the income so declared. Since the assessee has not furnished any details, the CIT(A) was not justified in setting aside the matter. 8.1 Assessee is also aggrieved with the order passed by the CIT(A) and the main plank of argument of the assessee, as could be seen from the grounds of appeal, is that the direction given by the CIT(A) to furnish certificate from an accountant in form No. 26A, is not in accordance with law, after a lapse of so many years, particularly, because the procedure prescribed in form 26A is not applicable to the years under consideration and, hence, assessee could not have been called upon to furnish, at this point of time, detailed accounts of distributors returns and assessee cannot be expected to do an impossibility of obtaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the peculiar facts and circumstances of the case. He reiterated its contentions that the Hon ble Calcutta Bench of ITAT and Bombay Bench of ITAT have dealt with the issue of discharging of basic onus and held that the revenue would have utilized its machinery to cross verify the claim of the assessee when it is initially proved that the recipients/distributors have filed returns of income. 12. We have carefully considered the rival submissions and perused the record. It is not in dispute that, in principle, consistent stand was taken by various authorities Viz., ITAT and High Court that assessee has to be treated as a defaulter by virtue of non-deduction of tax at source at the time of passing on the discount to the distributors. However, the issue with which we are concerned is limited i.e. when assessee is treated as a defaulter, at what stage, assessee s liability would end; is it till the date distributors filed their returns. On this limited point, we are called upon to adjudicate as to whether assessee has furnished basic details in discharging its primary onus to show that assessee can no longer be considered as defaulter and interest can only be charged till date of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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