2017 (9) TMI 579 - AT - Income Tax

Tribunal rules in favor of assessee on TDS liability dispute

The Tribunal ruled in favor of the assessee, holding that they could not be treated as an assessee in default under sections 201 and 201(1A) of the Income ... TDS - activity / job of Municipal Solid Waste Management - The assessee (ADDA) explained that it was merely associated as a Nodal Agency which only released the contribution of ₹ 9,60,00,000/- to GEPIL out of the total cost involved for implementation of Municipal Solid Waste Management Project under the designated areas of 5 ULBs on a Build, Own, Operate & Transfer (BOOT) basis and the same was in no way related to any payment for any professional service. Held That:- The assessee is merely a disbursing authority and is required to oversee the proper utilization of the funds given for and on behalf of the ULBs of the State Government. We also find that the State Government also directs the assessee to make use of the funds collected such as land premium , ground rent, etc on behalf of the Government and according permission for the same to be invested in bank for onward utilization of its earmarked purposes. This is enclosed in page 4 of the second paper book. All these documents clearly prove that the assessee is acting only at the behest of the State Government and accordingly could be safely concluded that it is only an agent of the Government. The grant paid under the JNNURM scheme by the State Government in the instant case to GEPIL, disbursed through the assessee in a self financing project under the Concessionaire Agreement, and the primary requirement of section 194C or 194J of the Act squarely fails in the instant case, therefore the assessee is not the person responsible for payment within the meaning of provisions of Chapter XVIIB of the Act. Hence we hold that the assessee is not obligated to deduct tax at source on the subject mentioned payments and hence consequentially the assessee could not be invited with liability u/s 201 and 201(1A) of the Act in respect of payments made to GEPIL. Issues Involved:1. Whether the assessee could be treated as an assessee in default under section 201/201(1A) of the Income Tax Act, 1961 for payments made to Gujarat Enviro Protection and Infrastructure Limited (GEPIL).2. Whether the assessee could be treated as an assessee in default under section 201/201(1A) of the Act for payments made towards lift installation charges.3. Whether the assessee could be treated as an assessee in default under section 201/201(1A) of the Act for payments made to Durgapur Ex-Servicemen Welfare Security.4. Whether the enhancement of TDS liability and interest by the Assessing Officer was justified.5. Applicability of section 40(a)(ia) of the Act.Issue-Wise Detailed Analysis:1. Payments to GEPIL:The primary issue was whether payments made to GEPIL under the Concession Agreement for Municipal Solid Waste Management were subject to TDS under section 194J. The Assessing Officer (AO) treated the assessee as an 'assessee in default' for not deducting TDS on these payments, arguing that the payments were for professional services. The assessee contended that it acted merely as a nodal agency disbursing government grants and was not responsible for the payments. The Tribunal found that the assessee was only a custodian of government funds and not responsible for the payments under the Concession Agreement, thus not liable for TDS under section 194C or 194J. The Tribunal concluded that the assessee could not be held liable under sections 201 and 201(1A).2. Lift Installation Charges:The AO observed that payments for lift installation charges should be subject to TDS under section 194J instead of section 194C. The Tribunal referred to the Supreme Court's decision in Kone Elevator India (P) Ltd vs State of Tamil Nadu, which classified such contracts as works contracts. Therefore, the Tribunal held that TDS should be deducted under section 194C, not section 194J.3. Payments to Durgapur Ex-Servicemen Welfare Security:The AO held that due to the non-availability of PAN, TDS should be deducted at 20% instead of 2% under section 194C. The assessee argued that the PAN was available in earlier TDS returns. The Tribunal remanded the issue to the AO for verification of the PAN and appropriate relief if the assessee's contention was correct.4. Enhancement of TDS Liability and Interest:The AO increased the TDS liability for the fourth quarter of the financial year 2010-11 and the interest liability without providing supporting evidence or a speaking order. The Tribunal remanded these issues to the AO for fresh adjudication, ensuring the assessee was given a reasonable opportunity to be heard.5. Applicability of Section 40(a)(ia):The Tribunal clarified that the appeals involved TDS assessments under sections 201 and 201(1A), not income tax assessments. Therefore, the provisions of section 40(a)(ia) were not applicable in this context, and the related grounds were dismissed.Conclusion:The Tribunal allowed the appeals partly for statistical purposes, remanding certain issues to the AO for fresh adjudication and providing specific directions on the applicability of TDS provisions. The Tribunal emphasized the importance of proper verification and adherence to legal provisions in determining TDS liabilities.