TaxTMI 
TaxTMI 
2022 (7) TMI 19
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....lt u/s. 201(1) is a condition precedent for being deemed to be in-default u/s. 201(1A) of the Act? Per contra, or, to put differently, whether being not deemed to be in-default u/s. 201(1) would by itself result in being not deemed to be in-default u/s. 201(1A) of the Act? The said two questions, which are in pari materia and define the controversy arising in these appeals, he would add, is no longer res integra, and stands recently clarified by the Hon'ble jurisdictional High Court. He would then take us through the relevant part of it's order in WP No. 19315/2017, dated 11/02/2020 (copy on record), in which the assessee is impleaded as a respondent. The Hon'ble Court has therein clearly stated that there could be no liability to interest u/s. 201(1A) in the absence of the assessee- , respondent being deemed to be default u/s. 201(1), which is so in view of the fact that payee-company, the petitioner before the Hon'ble Court, having been assessed at a loss for the relevant years. He was then asked by the Bench to refer to the two decisions referred to and relied upon by the Tribunal in the first round; the present being the second round before it. In CIT vs. Eli Lilly & Co. (India....
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....g not deemed to be in default u/s. 201(1) on account of the payment of tax by the payee inasmuch as tax could not be collected twice over. Yes, without the assessee being deemed to be in default and a liability u/s. 201(1) arising, there could be no liability toward interest u/s. 201(1A), though there could well be circumstances where a liability u/s. 201(1A) may arise and subsist independent of the liability u/s. 201(1). Rather, as it appears from the facts of the case, the assessee is not deemed to be in default only for the reason of it having since discharged it's liability to tax deductible at source u/s. 201(1) for each of the years under reference by payment of tax so demanded, so that the question afore-stated, stated as arising by Sh. Srivastava and, further, of it having been answered by the Hon'ble jurisdictional High Court, whose decision is binding on us, may not be the case. The same though providing a glimpse of the matter, the facts of the case leading to the instant appeals were then gone through. 3. It may at this stage be relevant to recount the background facts of the case. The assessee, an authority constituted under a Central Act, for development and mainte....
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....the whole or any part of the tax or after deducting fails to pay the tax as required by or under this Act, he or it shall be liable to pay simple interest,- (i) at one per cent for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is deducted; and (ii) at one and one-half per cent for every month or part of a month on the amount of such tax from the date on which such tax was deducted to the date on which such tax is actually paid, and such interest shall be paid before furnishing the statement in accordance with the provisions of sub-section (3) of section 200. (emphasis, ours) The assessee paid the demands raised u/ss. 201(1) & 201(1A), though contested the same on the ground that no tax was liable to be deducted as the payee-company had in fact suffered losses for each of the relevant years, i.e., after including the income received from the assessee, so that it (payee) was not liable to any tax u/s. 4, toward which the tax deduction at source is, seeking refund of both, the deposit of tax deducted at source (TDS) and interest paid for its delayed deposit. The mat....
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....espondents Nos. 1 & 2 respectively. The Hon'ble Court ruled in it's favour, accepting the plea that as there is admittedly, in view of the loss/es incurred by IJM, no liability to deduct tax at source, the assessee (R3) is not deemed to be in-default in respect of TDS, i.e., u/s. 201(1), and could not, accordingly, be deemed to be in-default for interest u/s. 201(1A), which is only compensatory, i.e., to compensate the Revenue for the delayed deposit of TDS with the Central Government. The relevant part of it's order dated 11/2/2020 reads as under: "12. The cumulative reading of the aforesaid provisions leads to the conclusion that where there is no tax liability on the recipient of income, in respect of its entire income including the income paid by the deductor, then in that eventuality, no liability can be fastened on the deductor under section 201(1) of the Act in respect of payments made to the deductee. Once it is held that no liability arises against the deductor under Section 201(1) of the Act, when the deductee had been assessed at loss figure, there is no justification for levy of interest under section 201(1A) of the Act, as the same is consequential in natu....
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....ure P-11), the impugned order dated 14.09.2017 (Annexure P-12) is quashed. The respondent Nos.1 and 2 are directed to refund the interest amount collected under Section 201(1A) of the Act from respondent No.3 on behalf of the petitioner together with interest under Section 244A of the Act, who in turn, shall pay the same to the petitioner in accordance with law." We were, accordingly, urged by Shri Srivastava to issue similar directions, as the assessee had, despite clear directions by the Hon'ble High Court, yet not been granted refund of interest u/s. 201(1A) for the relevant years by the Revenue. In fact, one of the pleas raised in justifying the non-grant of the said refund by the Revenue before the Hon'ble Court was that the matter is sub judice before this Tribunal. In our considered view, once the Hon'ble High Court has opined in the matter and, rather, issued clear directions to the Revenue, binding on it, we cannot issue any such direction or even be called upon to do so. It does not lie in the mouth of the Tribunal to direct the parties to abide by the directions by the Hon'ble High Court, which are in law binding on them, and the course to be adopted in su....
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....201(1A) of the Act till the date of payment of taxes by the deductee-assessee or the liability for penalty under s. 271C of the IT Act." The facts, it may be noted, are akin to the instant case inasmuch as the tax demand u/s.201(1) stands recovered by the assessee from the payee-company. In the facts of Eli Lilly & Co. (supra), the assessee-respondent, a joint venture company (between an Indian and a foreign company), to whom it's employees were seconded by the foreign company, failed to deduct tax at source on the home salary paid abroad by the foreign company to the said employees. The assessee-company was treated as an assessee in default qua the home salary, rejecting the explanation that it was paid outside India to employees who continued to be on the rolls of the foreign company. The stand of the Revenue was upheld by the Apex Court, holding as: (pg. 253) '37 ..... In case taxes due on home salary/special allowance(s) stand paid then the Assessing Officer shall not proceed under section 201(1). In cases where the tax has not been paid, the Assessing Officer shall proceed under section 201(1) to recover the shortfall in the payment of tax. 38. Similarly, ....
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....rtificate/s issued, which may also define the period for which the lower (defined) deduction of tax shall obtain. As we gather from the orders forming part of the record, the assessee had not deducted (and, accordingly, not deposited) the tax for the relevant years with reference to the certificates obtained by the payee-company (IJM), which are regarded by the Revenue as effective prospectively, i.e., subsequent to the date on which the same stand issued, so that the payments/credits materialized prior to the date of issue would not be governed by the lower rate/s specified in the said certificate/s. This aspect is thus not disputed before us, i.e., of it having been for that reason levied in excess, and the refund being claimed is for the entire interest, i.e., in toto. That is, the entire interest liability stands paid, which the assessee contests in entirety, i.e., without reference to the said certificate/s, making out a case for that demanded being in excess to that extent. 6. The two provisions are to be therefore considered independently, i.e., in the given facts and circumstances of the case, on the terms specified therein, and an absence of any outstanding liability fo....
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....rest is to run from the date when the tax was deductible. Sure, there is no question of a liability to interest arising unless there has been a delay in the discharge of the tax liability, so that there has to be a time lag, as obtains in the instant case, between the time (date) when the tax was deductible and, thus, deposited, and the time (date) when it was actually so. The condition of the assessee being in default qua tax deductible at source would thus exist for a time, which may not necessarily result in an assessment u/s. 201(1), as where by the date of said assessment the liability in its respect stands discharged. 7. The obligation to deduct and deposit tax at source is thus with reference to tax deductible, i.e., that liable to be deducted under the provisions of Chapter-XVII of the Act, which provides for a mechanism for a lower (including nil) deduction of tax at source u/s. 197. The fact of the payee company having incurred a loss, so that it was not liable to any tax for the relevant year/s, becomes, therefore, largely irrelevant as far as assessee-payer is concerned. The issue as to whether the amount deductible would include the amount not actually deducted, tho....
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.... tax could not be, for the default of the payer in not so deducting, not reduced in working the advance-tax liability of the payee-deductee in view of the word employed in sec. 209(1)(d) being 'deductible' and not 'deducted'. This is precisely what sec. 201(1A) seeks to provide, i.e., compensate the Revenue by way of interest for what was required to be deducted under the Act vis-à-vis what was in fact/actually deducted, for the period over which the shortfall obtained. The second aspect, equally relevant, that the said decision clarifies, is that it is only the person who could be deemed to be an assessee-in-default could be so for the compensating interest. This is as despite s.190 (clarifying that inspite of tax being liable to be deducted, it shall be without prejudice to s. 4(1)); s.191 (requiring an assessee to pay the tax deductible at source, direct), and s. 202 (clarifying tax deduction at source to be but only one of the modes of recovery of tax), no liability to interest for the delayed payment of tax due to non-deduction of tax at source by the payer, could be fastened on the payee. This is as the same by law falls to be recovered from the payer of the income onl....
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....the recovery procedure (s. 220) and, further, is subject to a charge on the assets of the payer (s. 201(2)). This would be therefore so even if the payment has been made to the payee in full, i.e., without deduction of tax at source, so that the payer has not retained any part of the payment due and made to the payee. d). the deduction of tax at source being only toward the tax liability of the payee, which can thus be paid by him direct (s. 191), or otherwise recovered, as upon assessment (s. 220), tax deduction at source being only one of the modes of recovery (s. 202), the obligation of the deductor, or he being deemed to be in default under section 201(1), shall, upon such payment by the payee himself, cease or, as the case may be, cease to be so. e). the payer shall, apart from the obligation to deduct and pay tax at source, is also liable to pay interest at the rate(s) specified where there has been a failure on his part to deduct and deposit the tax as required to by or under the Act, for the period for which the tax default continues (s. 201(1)). The same therefore cannot extend beyond the time the payer pays the said tax or is otherwise not deemed to be d....
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....bared, i.e., dismissed in limine, without deciding it on merits. The Tribunal, in further appeal, decided thus: A. For AYs. 2008-09 and 2009-10 (in ITA Nos. 22 & 23/ Jab/2012 dated 20/9/2013). '3. Applying the proposition of law as discussed in the above case to the facts of the instant case, we hold as under. 1. Since the income of Ssang Yong Engineering & Construction Co. has been assessed at loss u/s 143(3) in the assessment years 2008-2009 and 2009-2010, payment made to M/s Ssang Yong Engineering & Construction Co. was not liable for deduction of tax. Accordingly the assessee is not in default u/s. 201(1) and 201(1A) with respect to the payment to Ssang Yong Engineering & Construction Co. during the assessment years 2008-2009 and 2009-2010. 2. In respect of payment made to M/s IJM, contention of the assessee was that its income has also been determined at loss as per intimation issued by the Department u/s 143(1) of the Act. Since assessment has not been framed u/s 143(3), assessee cannot be given benefit of aforesaid proposition laid down by this Bench, accordingly we restore the matter to the file of the Assessing Officer with the direction to find out....
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....e, this all requires verification at the end of AO. The AO and ld. CIT(A) should have verified these facts before making the assessment and ld. CIT(A) should have also done this exercise. We found both the authorities have failed to do so. Therefore, in the interest of justice and fair play, we restore back this issue to the file of AO and the AO is directed to verify whether any short deduction of tax or not and whether the assessee is liable for interest or not and whether the deductee has paid tax or not. The assessee is directed to cooperate with the AO and he must produce all the relevant evidence before the AO and the AO is further directed to verify the same and decide the matter afresh keeping in mind the decisions of Hon'ble Supreme Court in the case of CIT vs. Eli Lilly & Co. (India) (P) Ltd and Hindustan Coca Cola Beverage P. Ltd. v. CIT (supra). 6. In the result, the appeal is allowed for statistical purposes.' (emphasis, ours) The AO, in the second round, passed a common order on 21/12/2016 for all the three years. It was, in view of the loss/es incurred by IJM Ltd. for the relevant years, held that the assessee is not deemed to be in default either u/s....
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....second years, the interest liability u/s. 201(1A) was required to be worked out from the date tax is liable to be deducted to the date of actual payment by IJM Ltd. For AY 2011-12, it was more of an open set-aside by the Tribunal; it finding that the different elements required for interest calculation, viz. short deduction; whether the assessee was liable to interest thereon; and whether the deductee had paid tax or interest, were not known. The matter was accordingly remanded for verification of facts and determination of the issue arising in view of the decisions by the Apex Court in Hindustan Coca-Cola (supra) and Eli Lily & Co. (supra). That is, in accordance with law, which would be equally applicable for the other two years as well, with the AO, in fact, taking up the matter together and disposing it by the combined order. Our second observation in the matter, thus, is that it is an open set-aside, to be decided upon verification of facts deemed relevant, in particular the ingredients for interest calculation u/s. 201(1A), in accordance with law. There is nothing in the clear language of these decisions, which the Tribunal, as obliged to, follows, to suggest reliance on the ....
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....a mechanism in the Act (section 195(2) and section 197) for tax deduction with reference to a lower income or, as case may be, a lower rate of tax. This is precisely for a case where a lower tax liability is anticipated, and the liability of the payer for the tax deduction at source is to be reference to this tax. To correlate it with the tax that the payee may finally be assessed at, is not only de hors the provisions of the Act, but also, as afore-explained, without basis on facts. It is like putting the cart before the horse. It is an extraneous condition imported which has no warrant in law, provisions of which, as we shall presently see, are also fair and equitable. In the instant case, the payee has obtained tax deduction certificates u/s. 197, and the Revenue has, as we understand, worked out the default only w.r.t. the tax rate specified therein. If paid in excess, i.e., of the payee' liability to tax for the relevant year/s, it would be entitled to refund with interest. This would be so even if the tax deduction (and deposit) has taken place during the previous year (i.e., the financial year preceding the assessment year), or even later, as appears to be the case for AY 20....
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....t extent, academic. The only issue surviving is the interest obligation of the assessee u/s. 201(1A). How we wonder it having paid the tax demand u/s. 201(1), in terms of the tax which it was required to deduct by and under the Act, could it possibly adopt a stance of non-liability to s. 201(1A)? If there has been a default, the consequences in law shall follow (Palam Gas Service (infra)). 12. If a payee considers that no (or lower) tax would be chargeable on his income for a particular year/s, the course available to him in law is to satisfy his AO in the matter, and obtain such a certificate which, needless to add, would include a nil tax certificate, as where there are brought forward losses. The assesse-payer's obligation for TDS would extend to this certificate/s, and reference to the losses incurred or finally assessed, which may be much after the close of the year, is misplaced. Importing any such condition, which is in fact inconsistent with the provisions of the Act, would in fact tantamount to writing the law, not interpreting it, and which having been in fact by the Apex court per its various decisions, it would imply not abiding or following the law of the land. Thou....
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.... having not deposited tax and, therefore, properly construed, would mean payment of tax by the assessee (payer) or IJM ( payee), whichever is earlier, i.e., till the discharge of the liability of the tax deductible u/s.195/197. It could be nobody's case that even if the assessee (payer) had paid the tax, that interest obligation would continue till IJM (payee) has also paid it. In law, the argument places the AO above the law, besides casting him in adversarial position, i.e., vis-a-vis the assessee. The AO is a public authority obliged to discharge the functions of, primarily assessment of income and tax under the Act, a public law. His decision thus cannot bind an appellate authority, each of which - including the Apex Court itself, is itself bound by law, much less where and to the extent it is found by it to be not in accordance with law. As explained by the Apex Court time and again, it is the correct legal position that is relevant, and not the view that the parties may take of their rights in the matter: CIT v. C. Parakh & Co. (India ) Ltd. [1956] 29 ITR 661 (SC); Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC)). Why, the Apex Court itself has in a scores of cases....
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....er round, wherein it has categorically stated that the liability u/s. 201(1A) shall arise where and up to the date of actual payment of tax by the deductee-payee, which we have already clarified to (could only) mean an actual payment by either the payer or the payee, whichever is earlier. This is as it is this payment, i.e., of tax liable to be deducted u/s. 195 r/w s. 197, that alone can satisfy the demand u/s.201(1), which in fact has been, so that the assessee is no longer in default u/s. 201(1). As afore-noted, the Act does not contemplate the satisfaction of a demand u/s. 201(1) or s. 201(1A) other than by way of actual payment. That the assessee has 'recovered' this sum also from the payee (IJM Ltd.), regarded as illegal by the Hon'ble Court, is something between the two, in the nature of a private dispute. The same rather ought not to give rise to any claim by IJM Ltd. against the Revenue, which can only be proceeded against by way of appeals by the assessee, i.e., NHAI, before it, deemed to be in default by it, i.e., qua the interest u/s. 201(1A), and as in fact directed by the Hon'ble jurisdictional High Court in the first instance, i.e., in WP No. 13284/2016, dated 23/01/....
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.... contrary, the refund arises only on account of the assessee having discharged its liability u/s. 201(1). And which is only after adjusting the payee's assessed tax liability for the relevant year/s, which may be nil on account of it having been assessed at a loss. But that is something that the assessee-payer is not directly concerned about, and in fact has no means to authentically know or acknowledge, much less assess. Why, in a given case, the payee may not have filed the tax return, or does not share it with the payer. The assessed tax liability of the payee would be only much later in future, while the assessee's liability to tax deduction arises at the time of credit or payment, whichever is earlier, during the relevant previous year. It can be nobody's case that the tax deduction is to await the assessment of the payee. In fact, that the payee has incurred a loss would again be known only after the closure of accounts for the year. As afore-noted, the law does not provide for any direct access to the said information to the payer. The two, though inter-related, cannot therefore be confused with each other. The only mechanism that the law provides, and very fairly, is for th....
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....so, such a direction could only be issued by the Hon'ble High Court under its writ jurisdiction. The only course under law, where the assessee considers that its' liability to tax deduction at source is not with reference to that deductible u/s. 195 r/w s. 197, as in fact provided u/s. 201(1), and consequently to interest u/s. 201(1A) for the delay in its payment, but with reference to the actual tax liability of the payee for the relevant year as would stand to be determined u/s. 143(3), as being claimed, was to invoke the appellate jurisdiction against the order by the Tribunal in the first round, which it has not, allowing it to attain finality. Our purview in the instant precedings is severely limited. As explained by the Apex Court in Melaram & Sons vs. CIT [1956] 29 ITR 607 (SC), a non-appeal gives a valuable right to the other side. The directions by the Hon'ble High Court, being in respect of the assessee, a respondent before it (and for the relevant years), were vehemently argued as binding on us. It is in fact this, coupled with finding by the Tribunal of the matter being in fact covered by the decisions in Hindustan Coco-Cola (supra) and Eli Lilly and Co. (India) ....
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....bunal, was material, could only be answered and clarified by it, besides, of course, a court in review proceedings. We have, on our part, clarified that the relevance of the Tribunal's orders in the first round is only qua the matters surviving and set aside, i.e., the interest liability u/s. 201(1A) in respect of tax demand u/s. 201(1) qua payments to IJM Ltd. (supra), for which it has issued unambiguous directions, binding on the parties in view of their acceptance thereof. That is, the said question is not open before us. To the extent open, we have, further, found them to be consistent with the decisions by the Apex Court relied upon by it. This answers the reliance on the directions issued to the parties by the Hon'ble High Court in WP No. 19315/2017. In sum 15.1 The controversy arising in the instant case is whether the assessee is liable to refund of interest levied and deposited u/s. 201(1A) of the Act? This is being claimed on the basis that the payee-company (IJM Ltd.) had since returned losses/nil income for the relevant years, claiming refund (of, among others, tax deposited by the assessee u/s. 201(1)), which has in fact been allowed thereto upon being so assesse....
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....n in the instant case) or u/s. 195(2) (in cases of direct remittance to a non-resident), for deduction at nil or at a lower rate of tax, furnishing the requisite details (refer rules 28AA, 28AB & 29B of the Income Tax Rules, 1962). Tax deduction is accordingly to be made as per the tax deduction certificate. The shortfall in the deduction of tax at source, for which the assessee-payer may be deemed to be default u/s. 201(1), and a tax demand raised on him thereby, is only with reference to the tax deduction as per such certificate issued by the AO, which is to be for the entire year. Where, then, one may ask, is the scope for the argument being advanced, with the independent operation of s. 201(1) and s. 201(1A) having been clarified by the Apex Court Eli Lilly & Co. (supra) and Hindustan Coca Cola Beverage (supra), the relevant parts of which stand reproduced in the earlier part of this order? That the tax so deducted, being deductible, may be in excess or short of the actual tax liability of the payee, a matter subsequent, which would be upon it filing the tax return and its assessment, and outside the purview of the tax deduction provisions and, therefore, of no concern to th....
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....Without this mechanism in place, involving the Revenue authorities, it would be reduce the statutory liability of tax deduction to a private affair between the deductor (payer) and deductee (payee), i.e., as to what ought to be deducted. This emphasizes, at once, the fairness and completeness of the procedure as well as the need to observe it. Further, inasmuch as the law is fair, i.e., as between the payer and payee, casting specific obligations on them, not observing them shall result in a serious prejudice to the Revenue. As noted by the Hon'ble Apex Court in Calcutta Knitwears (supra), reproducing the observations by Lord Granworth in Grundy v. Pinniger [1852] 1 LJ Ch 405, as: (pg. 685) "To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom." In fact, the Board vide its Instruction No.8 of 2006, dated 31/10/2006 (reported at [2006] CTR (St.) 1, with a view to ensure that the law is observed, both in its letter and spirit, and inasmuch as the issue of low deduction certificates seriously jeopardises and adversely affects collection o....
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....eduction u/s. 201(1) is not read to mean the tax liable to be deducted under the Act, even as explained in Eli Lilly & Co. (supra) and Mitsubishi Corporation (supra). That apart, we have shown that the provisions are fair, providing for nil/lower deduction of tax at source, which is to be construed as the tax deductible, by definition, and there is no room for consideration of equity (Central India Industries Ltd. (supra)), even as no inequity has been shown. The hardship or inconvenience cannot, as explained in Calcutta Knitwears (supra), alter the meaning of the language employed by the Legislature if such meaning is clear and apparent. No hardship or inconvenience though is contended; the assessee's case, and throughout, is principally with reference to the interpretation of the relevant provisions, i.e., of it's obligation to deduct tax at source, claimed to be at nil in view of the loss (or nil income) sustained by the payee-company. The Hon'ble jurisdictional High Court in W.P. 19315/2017, dated 11/02/2020, has directed the Revenue to refund the interest collected u/s. 201(1A) from the assessee on behalf of the petitioner (IJM Ltd.), along with interest u/s. 244A, who ....
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.... an order u/s. 201(1)/201(1A) per se, even as explained by the Apex Court in Central India Industries Ltd. (supra). This being the second round, the matter, it is found to have been set aside with directions by the Tribunal, relying on the decisions in Hindustan Coca Cola Beverage (supra) and Eli Lilly & Co. (supra), which orders have thus attained finality, law on which is well-settled, and for which reference be made to decisions in CIT v. Mtt. Ar. S. Ar. Arunachalam Chettiar [1953] 23 ITR 180 (SC); Hindustan Coca Cola Beverage (P.) Ltd. v. CIT [2007] 293 ITR 226 (SC); CIT vs. D & H Secheron Electrodes Ltd. [2008] 301 ITR 20 (MP). The issue, on account of the dispute raised by the assessee, discerned as arising in the instant appeals is the scope of the obligation to deduct tax at source u/s. 201(1), for the non-discharge of which compensatory interest is levied u/s. 201(1A). The same is found to admit no two views in view of the express language of the provision and, rather, having received clear interpretation to mean that as required to be deducted under the provisions of the Act, the same interpretation it placed on the word 'deductible' in s. 209(1)(d) per its subsequent dec....