TaxTMI 
TaxTMI 
2020 (9) TMI 873
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...., whereas, subject matter of I.T.A.No.34/2012 relates to Assessment Year 2006-07. I.TA.No.171/2011 was admitted by a bench of this Court vide order dated 05.01.2012 on the following substantial questions of law: (i) Whether the Tribunal was correct in holding that the assessee being anon resident is not liable to pay advance tax and consequently non interest under Section 234b of the Act is leviable as only TDS can be deducted by ignoring the judgment of the Apex Court in CIT VS.L ANJUM MH GHASWALA (2001) 252 ITR 1 (SC) where it was held that Section 234B of the Act is mandatory? (ii) Whether the Tribunal was correct in reading down Section 234B of the Act by holding that the same is applicable to Indian residents and not to non reside....
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....(India) Private Limited, which were accrued in India under Section 916 of the Act. The assessee filed the return of income on 30.10.2005 and declared taxable income of Rs. 95,19,50,282/-. The return was processed under Section 143(1) and was taken up for scrutiny and notice under Section 143(2) of the Act was issued. The Assessing Officer by an order dated 29.12.2008 computed the taxable income at Rs. 30,11,00,040/- and tax at 15% was levied at Rs. 4,51,65,006/-. The TDS amount of Rs. 14,27,92,521/- was deducted and in respect of short fall in payment of advance tax, the Assessing Officer levied a sum of Rs. 1,38,98,565/- as interest under Section 234B of the Act. Thereafter, an order of rectification was passed under Section 154 of the Act....
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....in Section 209(1) of the Act needs to be read as 'deducted'. It is also pointed out that entire object of Section 209(1)(d) of the Act is to ensure that there are no double deductions and the Tribunal erred in holding that the assessee being a non resident, the provisions of Section 234B of the Act are not attracted. It is also submitted that provisions of Section 234A, 234B and 234C of the Act are mandatory and compensatory. In this connection, reliance has been placed decision of the Supreme Court in 'COMMISSIONER OF INCOME-TAX VS. ANJUM M.H.GHASWALA', (2001) 119 TAXMAN 352 (SC). It is also urged that the finding recorded by the Tribunal is contrary to law laid down by Supreme Court in PALAM GAS SERVICE supra. 6. On the o....
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.... payee. Section 209(1)(d) of the Act as it read prior to Finance Act, 2012 is reproduced below for the facility of reference: 209. Compensation of advance tax: (1) The amount of advance tax payable by an assessee in the financial year shall, subject to the provisions of sub-Sections (2) and (3), be computed as follows, namely:- (a) xxxxx (b) xxxxx (c) xxxxx (d) the income-tax calculated under clause(a) or clause (b) or clause (c) shall, in each case, be reduced by the amount of income-tax, which would be deductible (or collectible) at source during the said financial year under any provision of this Act from any income (as computed before allowing any deductions admissible under this Act) which has been taken into account i....
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....and after determination of the tax liability by the department, the deductor has deducted the tax at source and has remitted the balance to the assessee. In the light of legal position as it existed for the relevant Assessment Years prior to insertion of proviso to Section 209(1) of the Act, it is clear that if payer who was required to make payments to non resident had defaulted in deducting the tax at source from such payments, the non resident is not absolved from payment of taxes thereupon and non resident is liable to pay tax and the question of payment of advance tax would not arise. Therefore, it would not be permissible for the revenue to charge any interest under Section 243B of the Act. 10. The Supreme Court in PALAM GAS SERVICE....