TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 526
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.... appeal for the A.Y. 2002-03 in ITA No. 6052/Del/2014 are discussed and the findings given therein will apply mutatis-mutandis in all the appeals. The grounds raised by the assessee which are common in all the years read as under:- "1) That the CIT (Appeals) ought to have condoned the delay in filing the appeal as there was sufficient cause on the part of the appellant and consequently the dismissal of appeal on account of delay is arbitrary, unjust and illegal. 2) That the CIT (Appeals) ought to have adopted a pragmatic approach in the condonation of delay and consequently the dismissal of appeal on technical ground without considering sufficient cause is bad in law. 3) That in the absence of a show cause notice u/s 201(1)/201(1A) of the Income-tax Act, 1961 (the Act), the assumption of jurisdiction to pass the order u/s 201(1)/201(1A) of the Act is bad in law and consequently the demand created as a result of order dated 8th March 2011 read with order dated 21st April 2005, thereby treating the assessee in default is arbitrary and bad in law. 4) That in the absence of any action taken against the payees or in the absence of any evidence that any demand legally recovera....
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.... the evidence to effect that, whether the payees have suffered tax in their hands on the said income. In pursuance of the ITAT order, the Assessing Officer required the assessee to furnish details in respect of all the customers to whom interest on Flexi Fixed Deposit was paid during the F.Ys. 2001-02, 2002-03 and 2003-04 were providing the details like name of the payee; amount of interest paid; amount of TDS deducted; amount and date of income tax paid by the payee on such interest with the evidence; date of filing of income tax and amount interest u/s 201(1A) due on late payment of tax. In response the assessee could only furnish the details of certain payees for which the Assessing Officer had given due credit and the balance interest payment on which TDS was not deducted he levied tax u/s 201(1) on account of short charge and interest u/s 201(1A) in the following manner:- Sl No. Financial Year Interest Amount paid/credited (-) interest included in the taxable income by the assessee TDS involved u/s 201(1) Interest u/s 201(1A) from the end of the F.Y. to the date of the order Total short charge of tax & interest 1 2001-02 1,56,032 15,915 17,904 33,819 2 200....
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.... is arrived in the case of the deductee/payee that he has failed to pay tax directly, then only deductor, i.e., the present assessee can be deemed to be the assessee-in-default in respect of such tax and then only proceedings u/s 201(1) and 201(1A) can be initiated. This proposition of law has been explained by the Hon'ble Jurisdictional High Court in the case of Jagran Prakashan Ltd. vs. DCIT (TDS) (2012) 345 ITR 288 (All). The Hon'ble High Court after discussing the issue in detail has observed and held as under:- "A deductor who fails to deduct income-tax at source shall be deemed to be an assessee in default only when the assessee has also failed to pay such tax directly. Thus, there is no occasion to treat the deductor as an assessee in default unless the assessee has not paid the tax directly. The fact that the assessee has failed to pay tax directly is thus, a foundational and jurisdictional fact and only after finding that the assessee has failed to pay tax directly, can the deductor be deemed to be such tax. The Explanation to section 191 of the Income-tax Act, 1961, is confined only to the amount of tax which was required to be deducted. While interpreting the p....
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....espect of initiation of proceedings u/s 201/201(1A) have been settled only after the aforesaid pronouncement of the order in the year 2012 and the ITAT order in the first round to the Assessing Officer was assessment year back so no we are bound to follow the law laid by the Hon'ble Jurisdictional High Court in M/s. Jagran Prakashan Ltd. (surpa). In assessee's own case in a similar matter the Agra Bench of the Tribunal observed after taking note of the law laid in Jagran Prakashan Ltd. (supra) as under:- "6. It is thus clear that the onus is on the revenue to demonstrate that the taxes have not been recovered from the person who had the primarily liability to pay tax, and it is only when the primary liability is not discharged that vicarious recovery liability can be invoked. Once all the details of the persons to whom payments have been made are on record, it is for the Assessing Officer, who has all the powers to requisition the information from such payers and from the income tax authorities to ascertain whether or not taxes have paid by the persons in receipt of the amounts from which taxes have not been withheld. As a result of the judgment of Hon'ble Allahabad High Cou....