TMI Blog2021 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ges was not forming the part of the actual rent paid to the owner by the assessee company. There is a separate agreement between the Owner, Tenant and service provider for common area maintenance which is distinguishing fact and thus, the decision of the Hon ble Punjab and Harayana High Court will not be applicable in the present case. Therefore, the CIT(A) was not right in confirming the order of the Assessing Officer. Hence, appeal of the assessee is allowed. - I.T.A. No. 889/DEL/2020 - - - Dated:- 5-1-2021 - SHRI O. P. KANT, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER Appellant by : Sh. Gautam Jain, Adv Sh. Lalit Mohan, CA Respondent by : Sh. Sohail Malik, Sr. DR ORDER PER SUCHITRA KAMBLE, JM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. 2.1 That the learned Commissioner of Income Tax(Appeals) has erred both in law and on facts in upholding the conclusion that appellant was obliged to deduct TDS u/s 1941 of the Act as asainst u/s 194C of the Act on the common area maintenance charges paid by the appellant company. 2.2. That in any case and, even other-wise, the Commissioner of Income Tax (Appeals) has overlooked the judgment of the Hon‟ble Supreme Court in the case of Hindustan Coca Cola Beverages Ltd. vs. CIT reported in 293 ITR 26 wherein it was held that once the deductee has paid the taxes due, then there is no justification for imposing any liability under section 201(1) of the Act. 3. That in any case and, even other-wise, the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1941 calling for TDS at 10% as against deduction of TDS at 2% being made by the deductors/tenants, thereby prima facie being assessee in default. On the basis of the information received from Circle 73(1), New Delhi a notice was served for Section 201 proceedings for FY 2010-11 on 06/03/2018 asking for details the assessee company. In response to this notice, Authorized Representative of the company appeared on 15/03/2018 filed Balance sheet, P L account and Tax Audit Report alongwith annexure, section wise details of TDS deducted and deposited and also submitted the copy of Provisional receipt of all TDS return. The Assessing Officer observed that the payments in the nature of common area maintenance (CAM) which is essentially part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance services providers u/s 194I of the Act instead of Section 194C of the Act by relying on the judgment of the Hon ble High Court of Punjab Haryana in case of Sunil Kumar Gupta vs. ACIT 389 ITR 38. The Ld. AR submitted that CIT (A) while sustaining the order of the Assessing Officer has relied upon judgment of the Hon ble High Court of Punjab Haryana in case of Sunil Kumar Gupta vs. ACIT 389 ITR 38 wherein the Hon ble Court held that maintenance charges must form a part of the rent while calculating the annual value of property u/s 23(1) of the Act for the purpose of Section 22 of the Act. However, the Ld. AR submitted that the issue under consideration is distinguishable from the facts before the Hon ble High Court. The Ld. AR submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deducted depend on nature receipt of payee/recipient from whose payment TDS to be deducted. The Ld. AR relied upon the following decisions: i) GE India Technology Centre (P) Ltd. vs. CIT 327 ITR 456 (SC) ii) Vijay Ship Breaking Corpn. Ors. Vs. CIT 314 ITR 309 (SC) The Ld. AR further submitted that nature of payment in hands of payer is not deciding/relevant factor for deciding nature of receipt in hands of recipient. In this regard reliance is placed on judgment of the Hon ble Apex Court in case of Empire Jute Co. Ltd. vs. CIT 124 ITR 1 by the Ld. AR. 6. The Ld. DR relied upon the order u/s 201(1)/201(1A) and order of the CIT(A). 7. We have heard both the parties and perused the material available on record. Ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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