TMI Blog2022 (9) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... mount paid to the said persons which is Profit in lieu of salary and which being a part of total salary and the same is paid based on settlement agreement, thought the sum is over and above the salary, par takes the character of salary, therefore, the sum is liable for deduction of TDS in the hands of the assessee. The plea of the counsel for the assessee is that the said amount is not paid but made only a provision, therefore, provisions of Section 201(1) and 201(1A) cannot be invoked. This plea of the assessee is devoid of merit. Supreme Court in the case of Shri Choudhary Transport Company [ 2020 (8) TMI 23 - SUPREME COURT] held descriptive of the payments which attract the liability for deducting tax at source and has not been use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DS in the year in winch the said amount is actually paid. Accordingly, the Ground No. 1 to 2(i) to (viii) and the Ground No. 3 are dismissed and Ground No. 2 ((ix) is allowed for statistical purpose. - I.T.A. No. 3617/DEL/2018 - - - Dated:- 7-9-2022 - Shri N. K. Billaiya, Accountant Member And Shri Yogesh Kumar Us, Judicial Member For the Assessee : Shri Rajan Vohra, C.A.; Ms. Preeti Goel, C.A.; Shri Shubham Verma, C.A. For the Department : Ms. Yagya Saini Kakkar, [CIT] D.R.; ORDER PER YOGESH KUMAR US, JM This appeal is filed by the assessee against the order dated 22.02.2018 passed by CIT(A)-1, Gurgaon for Assessment Year 2013-14. 2. The assessee has raised the following ground of appeal:- 1. The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 6, 2007 without taking into consideration the series of facts and other evidence is incorrect; (viii) The rate of withholding of tax is not determinative of the character of the income; (ix) The provisions of Proviso to Section 201(1) of the Act and the Supreme Court decision in the case of Hindustan Coca Cola Beverage (P) Ltd v. CIT have to be taken into account to determine the TDS liability of the appellant as the Payees have admittedly fded their returns of income treating the amount received as capital gains and paid due taxes thereon. 3. The Hon ble CIT(A) has grossly erred in the facts and circumstances of the case and in law in erroneously following the order issued by him in Appeal number 509/16-17 in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (payees) are as per the settlement agreement for relinquishment of right of equity in the asssessee company, the relinquishment of right is a transfer as per Section 2(47) of the Act and not liable to TDS as the payee were resident of India during Financial Year 2013- 14. The Ld. Counsel for the assessee further submitted that, treating the amount received by the payees as settlement amount, tax has been duly paid at 20%. Therefore, sought for interference from the Tribunal. 7. Per contra, the Ld. DR has submitted that, the agreement entered into between private parties cannot over ride the compulsion of payment of TDS, further submitted that, the payments made by the assessee to the payees are in the nature of salary which is liable fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of Section 201(1) and 201(1A) of the Act. Now, the question before us whether the assessee has claimed the said amount as deduction while computing the income of the assessee? If the assessee claimed it as deduction while computing income of the assessee for Assessment Year 2013-14, then the assessee is liable to deduct the TDS on the said amount. The amount paid to the said persons which is Profit in lieu of salary and which being a part of total salary and the same is paid based on settlement agreement, thought the sum is over and above the salary, par takes the character of salary, therefore, the sum is liable for deduction of TDS in the hands of the assessee. Thus, the plea of the counsel for the assessee is that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per tax is paid by the recipient or not. Therefore, contended that the authorities below ought to have followed the judgment of the Supreme Court in the case of Hindustan Coca cola Beverages (P) Ltd. Vs. CIT reported in 293 ITR 226. 12. The Ld. Counsel for the assessee to substantiate his contention that the recipient have paid the tax, no material has been brought on record. On the other hand, the assessee is fastening the burden of the same on the A.O to examine that recipient has paid the tax or not. |When an assessee takes a specific plea it is for the assessee to prove the said contention by producing the material in support of the same and assessee cannot fasten the liability to prove the contention on the revenue. Since the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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