TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 277
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....one appeared on behalf of the assessee. It was seen from the order sheet entries that on earlier so many occasions, no one was appearing on behalf of the assessee for which the case was getting adjourned from time to time, the details of which are as under:- Dates of Hearing Appeared on behalf of theassessee 10.08.2021 None 13.10.2021 None 13.12.2021 None 24.01.2022 None 06.06.2022 None 13.07.2022 None 10.08.2022 None 12.09.2022 None We, therefore, deem it proper to decide the appeals on the basis of material available on record and after hearing the ld. DR. 2.1. There is a delay of '104' days in filing of this appeal by the assessee, for which assessee has filed a condonation application along with an affidavit explaining the reasons for such delay, which is due to the COVID-19 pandemic. After considering the contents of the condonation application and after hearing the ld. DR, the delay in filing of this appeal by the assessee is condoned and the appeal is admitted for adjudication. ITA No. 780/HYD/2020 for AY 2009-10 (by Revenue) ITA No. 126/HYD/2021 for AY 2009-10 (by Assessee) 3. Facts of the case, in brief, are that during the course of....
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....e payer is clear and unambiguous and casts an obligation to deduct appropriate tax at the rates in force, therefore, the assessee though a resident, clearly comes under the purview of this section and by virtue of non deduction of tax, has committed a default and hence is liable for tax u/s. 201(1) and also interest u/s. 201(1A) of the I.T. Act. 4.1. He, however accepted the additional grounds raised by the assessee and held that by the Finance Act, 2012, a proviso to Sub-section (1) was introduced whereby if it is proved that the assessee/payee who received the income has paid the tax, then the assessee who failed to deduct tax at source will not be deemed to be an assessee in default.(But this proviso speaks with respect to resident only). He, therefore directed the AO to make due verification of taxes paid by the payee and calculate the levy of tax u/s. 201(1) and levy of interest u/s. 201(1A) 5. Aggrieved with such order of the ld. CIT(A) giving part relief, the revenue as well as the assessee are in appeal before the Tribunal by raising the following grounds: ITA No. 126/Hyd/2021 for AY 2009-10 (by Assessee) 1. That on the facts and circumstances of the case and in law, ....
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....ble to be quashed. 2. The CIT(A) grossly erred in directing the Assessing Officer to recompute the tax/demand u/s. 201(1) of the Act and interest u/s. 201(1A) of the Act, after verification of taxes raid by the payee/nonresident seller. 3. The CIT(A) erred in placing reliance on the amended provisions of Section 201(1) of the Act, so as to treat the assessee "as an assessee not in default", but, ignoring the fact that the said amended provision i.e., first proviso to Section 201(1) of the Act was inserted in the statute book by the Finance Act, 2012 w.e.f. 01-07-2012 and therefore, the same is not applicable to the impugned A.Y. 2009-10. 4. Without prejudice to the ground No. 3, the CIT(A) has failed to appreciate the fact that the first proviso to Section 201(1) of the Act is applicable only in respect of resident payees and non-resident payees are consciously and intentionally excluded by the legislature from the ambit of such benefit of treating the assessee" as an assessee not in default." 5. The CIT(A) ought to have followed the settled position of law that the provisions of statute as on the date of default committed by the assessee would apply and, therefore, liabili....
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....u/s. 201(1A) accordingly. 7. In our opinion, the order of the ld. CIT(A) is not justified under the facts and circumstances of the case. We find the provisions of section 201(1) was amended to treat the assessee as an assessee not in default w.e.f. 01.07.2012 and therefore, the same is not applicable to the impugned assessment year i.e., AY 2009-10. Further, the first proviso to section 201(1) reads as under:- 201. (1) Where any person, including the principal officer of a company,- (a) who is required to deduct any sum in accordance with the provisions of this Act; or (b) referred to in sub-section (1A) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a payee or on the sum credited to the account of a payee ....