TMI Blog2020 (6) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... t justifiable. Since the Ld.DCIT had categorically mentioned in his Order that the NRI vendors had not remitted the sale proceeds in the LTCG Scheme account, the CIT(A) ought to have obtained a remand report from the Ld.DCIT before coming to the conclusion that the assessee had deposited the sale proceeds in the LTCG Scheme account. Decision cited by the assessee in the case of GE India Technology CEN Pvt Ltd [ 2010 (9) TMI 7 - SUPREME COURT ] is not applicable to the case of the assessee because in that case it was well established at the time of receipts by the NR that they are not liable to tax in India with respect to the income earned out of such receipts. Similar, though not identical, are the facts with respect to the other cases cited by the Ld. AR. Accordingly, We hereby set aside the Order of the Ld.CIT(A). Assessee Company would be relieved from deducting tax at source from the NRI vendors to whom the assessee had made payment for purchase of their residential property as decided in the Cases cited by the LD.AR. Needless to mention that if the entire sale proceeds is deposited in the LTCG Scheme account, then the same would be under the control of the Revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad purchased house property consisting of two buildings at Municipal No.3-8-477 and 3-8-477/1, Survey No. 68, Mansoorabac Village, Saroor nagar Mandal, Ranga Reddy District vide Sale Deed dated 16/12/2011 registered as Doc. No. 5079/2011 for total sale consideration of Rs. 24,20,00,000. The sale deed was executed by 8 persons in favour of the assessee viz., Smt. K. Urmila Reddy, Sri K. Prabhakar Reddy, Smt. K. Sarita Reddy, Smt. K. Vijita Reddy, Smt. Kavita Reddy, Smt. Shalini Reddy, Sri K. Ravikant Reddy and Smt. K. Varsha. It was further revealed that out of the above stated 8 vendors, 4 vendors were non-resident Indians viz., Smt. Kavita Reddy, Smt. Vijita Reddy, Smt. Sarita Reddy and Smt. Shalini Reddy to whom the assessee company had paid Rs. 3,02,50,000/- each aggregating to Rs. 12,10,00,000/- towards the sale consideration for acquiring their house property. It was further revealed that the assessee company had not deducted tax at source from the above stated NRIs with respect to the payment made for the purchase of their residential house. Therefore, the Ld. DIT (International Taxation) opined that the assessee company had violated the provisions of section 195 of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere that Sri K. Prabhakar Reddy is a resident in India and he is the GPA holder on behalf of the four daughter s, the property was sold by him and money was also received by him and therefore the provisions of section 195 are not attracted in the company s case by virtue of the provisions of the Income Tax Act, for the foregoing reasons and also on the basis of judicial pronouncements in the following cases. (i) Rakesh Chauhan vs. Director of Income Tax (International Taxation) (ii) Rakesh Chauhan vs. Dy. Director of Income Tax (International Taxation) (2010) 128 TTJ 116 (Chd.) (iii) Tecumseh Products (I) Ltd vs. DCIT, Circle-6 (TDS) Hyderabad (2007) 13 SOT 489 (Hyd). 4. However, the Ld. DIT (International Taxation) was of the view that the submission made by the assessee-company is not acceptable due to the following reasons: - (i) All the 4 vendors were proved to be Non-Resident Indians . (ii) The assessee company was duty bound to verify the residential status of the vendors and deduct tax at source wherever applicable with respect to payment made to non-resident Indians as per the provisions of the Act. (iii) It is mandatory on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pient NRIs had availed exemptions U/s. 54F of the Act with respect to the entire capital gains and filed their returns of income. The copy of the returns of income were also filed before the ld. AO. Therefore, there was no merit in treating the assessee Company to be an assessee in default . (ii) Reliance placed by the Ld. AO on the undertaking of one of the vendor s representative stating that Form 15C was filed before the Bank proposing to remit the sale proceeds in overseas bank account in order to purchase residential property in USA is not appropriate because all the four vendors had remitted the total sale proceeds in the LTCG Scheme account in Andhra Bank, MLA Colony Branch within the specified time provided under the Act and had also filed their return of income within the due dates. In such circumstances, the assessee Company cannot be held to be an assessee in default . (iii) Even if the tax is deducted at source by the assessee Company the same is liable to be refunded by the Revenue by virtue of the exemption claimed U/s. 54F of the Act by the vendors and such exercise is unnecessary and futile. (iv) Reliance was placed in the decision of the special be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and filed their return of income that would be after a long span of time from the date of the purchase of the residential property by the assessee. Non-deduction of tax at source by the assessee on the anticipating of future claim of deduction by the recipients / vendors is not appropriate. (v) No conclusive proof is brought before the ld. Revenue Authorities with respect to the purchase / construction of the residential House Property within the stipulated period stipulated under the Act in order to entitle the vendors the claim of the deduction U/s. 54F of the Act. (vi) The compliance of the entire provisions of section 54F of the Act enabling the vendors to claim the deduction U/s. 54F of the Act is not brought on record before the Ld. Revenue Authorities. (vii) The return of income filed by the vendors / recipients did not disclose about the claim of deduction U/s. 54F of the Act. 9. With the above submissions, the ld. DR argued stating that deletion of the charge made U/s. 201(1) of the Act and levy of interest U/s. 201(1A) of the Act by the Ld. CIT (A) is not appropriate and hence pleaded for setting aside the order of the Ld. CIT (A) and to confirm the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany it had failed to do so. (v) In what manner the entire sale consideration is utilized by the NRI vendors is also not established before us though the Ld.CIT(A) states in his Order that the same is deposited in the LTCG Scheme account. (vi) From the above it was clear that the assessee Company had failed to deduct tax at source towards the payments made to the NRIs and therefore the assessee has to be held as an assessee in default as per the provision of section 201(1) of the Act., if it is established that the amount received by the NRI vendors are liable for LTCG tax during the relevant assessment year. 12. From the above, it is obvious that the order of the ld. CIT (A) for deleting the demand raised by the DIT (IT) towards the charge U/s. 201(1) of the Act and levy of interest U/s. 201(1A) of the Act, without verifying the compliance of the relevant provisions of section 54F of the Act by the NRI vendors, is not justifiable. Since the Ld.DCIT had categorically mentioned in his Order that the NRI vendors had not remitted the sale proceeds in the LTCG Scheme account, the CIT(A) ought to have obtained a remand report from the Ld.DCIT before coming to the conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2012-13 ie., the NRI vendors had at least deposited the sale proceeds in the LTCG Scheme account within the stipulated period under the Act during the relevant assessment year. In that case the NRI Vendors would be eligible for deduction U/s.54F of the Act and the charge of LTCG on them would be nil during the relevant assessment year. In such circumstance the assessee Company would be relieved from deducting tax at source from the NRI vendors to whom the assessee had made payment for purchase of their residential property as decided in the Cases cited by the LD.AR. Needless to mention that if the entire sale proceeds is deposited in the LTCG Scheme account, then the same would be under the control of the Revenue and the Revenue would be in a position to recover the LTCG tax arisen subsequently on the non- compliance of the other provisions of Section 54F of the Act. It is also pertinent to mention that if the assessee Company had deducted tax and remitted to the Government Treasury then the same would be credited to the NRI s account by the Revenue as tax paid and accordingly dealt with in the relevant assessment year while computing the tax liability of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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