TMI Blog2022 (11) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of the sale without deducting tax at source as non resident seller had disclosed consideration receipt from assessee in their respective return the assessee could not held as assessee in default as per amended provision of section 201(1) - As we have noted above the seller/payee/deductee had filed return of income for assessment year 2019-20 declaring the income of long term capital gain from the sale of a residential flat to the assessee and had also paid tax thereon then the assessee could not be held as assessee in default u/s 201(1) off the Act. The assessee cannot be treated as assessee in default u/s 201(1) of the Act, in the event, where the seller/payee/deductee a none resident has filed return of income and has offered the long term capital gain accrued to him from transfer of sale of property to the assessee for taxation then the assessee can not be held or treated as assessee in default. Therefore, the orders of the authorities below, in holding the assessee in default for short deduction of TDS is not sustainable as when seller Non-Resident has filed return of income and due tax has been paid by the payee then the appellant gets immunity under first proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deducting the TDS on the same and payee filed return of income disclosing the amount of tax the interest levied upon the assessee under section 201(1A) of the Act should be calculated for the period from the date of transaction of purchase of property till the date of filing of return by the payees seller. 4. Elaborating the facts of the present case the Ld. AR submitted that the assessee filed detailed written submissions before the Ld. CIT(A) spread over 11 pages along with supported documentary evidence placed at pages 12 to 27 of assessee s paper book which clearly substantiate that the assesee can not be treated that assssee in default under section 201(1) of the Act. Ld. AR also submitted that the claim of joint co-owner Shri Amit Kumar of the same property has been allowed by the Ld. CIT(A), Delhi -41 vide order dated 28.08.2020 pertaining to the same transaction and the revenue cannot take a different or deviated stand in the present case having similar and identical facts of the circumstances. Ld. AR submitted that in a case of non resident individual if income is less than Rs. 1 crore than the rate of surcharge applicable is 10% and since the total income of deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs 67,18,881/-. CPC-TDS through the AO vide letter dated 11.8.2020 was asked to clarify the basis of demand raised. CPC vide reply dated 28.8.2020 submitted as under:- In reference of the trail mail Kindly find below the calculation of the demand: TAN: DELA48739F, F.Y: 2018-19, Quarter-2 and Form Type: 27Q. PAN of Deductee: DGIPR4235P Demand Type: Short Deduction Certificate rate = 14 % (excluding surcharge and cess), Surcharge @ 15% (Payment to non-company more than 1 crore), Cess @ 4%, Total TDS rate (Certificate rate+surcharge+cess): 16.744%. Payment Amount: 10184478/- TDS to be deducted by Deductor as per certificate rate (@16.744 of payment amount): 1705289/- TDS deducted by Deductor: 1631146/- Short Deduction demand (TDS to be deducted by Deductor -TDS deducted by Deductor): 74143/-. 6.4 CPC has clarified that the basis of short deduction of demand raised is the rate of applicable surcharge. The rates of surcharge have been verified from the Finance Act 2019 and are reproduced below:- Surcharge on income-tax The amount of income-tax deducted in accordance with the provisions of- (i) item 1 of this Part, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 pages we clearly note that the written submissions filed by the assessee before the Ld. CIT(A) is supported by the documentary evidence we note that from pages 70-80 it clear that the net tax liability deducted on income from capital gain out of transaction of sale of property to assessee is Rs. 15,44,841/- whereas the appellant has deducted total amount of Rs. 16,31,146/- which is higher than the tax liability of deductee. From page 19 the copy of Form No. 27A also show that the assessee has duly deposited TDS and also filed TDS statement for the relevant prescribed period in the prescribed form. From pages 22 to 23 that is undertaken under section 200 A / 206 CB of the Act it is also discernable that the CPC and TDS received a demand of Rs. 77,110/- being the TDS short deduction including of Rs. 74,143/- and interest of Rs. 2964/- under section 201 (1A) of the Act. From copy of the return of income available at pages 24 to 27 for assessment year 2019-20 of the seller Shri Yuki Mallick clearly show that the deductee / payee deductee has shown income under the head capital gain from the transaction of sale of property to the assessee and the amount of capital gain is less than R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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