TaxTMI 
TaxTMI 
2024 (10) TMI 103
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....order dated 26th August, 2009. "(A) Whether on the facts and circumstances of the case, the Appellate Tribunal is justified in law in applying the ratio of the case of Rishikesh Apartments Co-ooperative Housing Society, 119 Taxman 239 (Guj.)? (B) Whether on the facts and circumstances of the case, the Appellate Tribunal is justified in law by not considering the provisions of Section 195 (2) of the I.T. Act, 1961, being payment to non-resident?" 2. The brief facts of the case are that during the course of survey under Section 133A of the Act carried out at the premises of the respondent on 15th February, 2005, it was noticed that the assessee has made direct payment to non-resident company M/s. P.T. Sumber Mitra Jaya of....
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....operative Housing Society reported in 253 ITR 310 (Gujarat) and directed the Assessing Officer to charge interest on the amount of Rs.08.00 lakh which was deposited by the said deductee as self-assessment tax on 23rd December, 2003. 3. Learned advocate Mr.Dev Patel appearing for the appellant submitted that the Tribunal has committed an error in applying the decision of this Court in case of Rishikesh Apartments Cooperative Housing Society (supra) as the said decision is applicable when the deductee has deposited the entire amount and there is no tax liability in view of the tax to be deducted by the deductor. Learned advocate for the appellant therefore tried to distinguish the decision of this Court in the facts of the case to submit t....
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.... M/s. PT Summber Mitra Jaya and the details of payment of tax by M/s. PT Summber Mitra Jaya was as under: (a) Tax payable including surcharge Rs. 26,78,366/- (b) Less: Paid by ITDS Rs. 18,83,477/- (c) Paid by way of self-assessment tax on 23.12.2003 Rs. 8,83,006/- Rs. 27,66,483/- (d) Refundable Rs. 88,117/- The above facts are not in dispute. Hence, following the decision of the Hon'ble Gujarat High Court in the case of CIT Vs. Rishikesh Apartments Co-operative Housing Society 119 Taxman 239 (Guj) in our opinion the Department has suffered maximum loss of interest of Rs. 8,00,000/- upto 23-12-2003. Our above opinion is based on the facts that the tax liability of M/s P. T. Summber Mitra Jaya ....
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....rson who deducts tax before making payment to another person and pays the same to the Central Government, the tax which is to be paid by the payee of the said amount and thus the assessee was to pay the amount of tax on behalf of the contractor M/s. P.T. Sumber Mitra Jaya deducting the same from the amount payable to it under the provisions of the Act. 4.2 This Court in the facts of the said case, thereafter held as under: "10. If one looks at the fact whether Ravi Builder had in fact paid the amount of tax payable by it on the amount which was paid to it by the assessee, one finds that Ravi Builder had paid the tax. In fact for both the years, it had paid more advance tax than what was payable by it. Thus, the entire amount of ....
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....id by Ravi Builder on its income as per the provisions of the Act, and for the other two years, tax was paid by Ravi Builder a little late. So far as the late payment is concerned, the Appellate Assistant Commissioner held that the assessee had to pay interest under Section 201 (1A) for the said years and the assessee accepted the said finding. Thus, it can very well be seen that the facts of the case which has been relied upon by Mr. Qureshi cannot help the Revenue for the reason that in the said case it was not known whether the person on whose behalf the tax was to be paid to the Revenue had in fact paid the tax payable by him. In the instant case, the contractor, viz., Ravi Builder, had admittedly paid the amount of tax payable by it an....
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....mount of tax which had already been paid on the due date. Such a position, in our opinion, cannot be permitted." 5. In view of the above dictum of law, when in the facts of the case, deductee M/s. P.T. Sumber Mitra Jaya has paid the entire amount of tax except Rs.08.00 lakh which was paid as self-assessment tax, the Tribunal was right in holding that the tax paid by the contractor in its own case by way of advance tax and self-assessment tax should be deducted from the gross tax that the assessee should have deducted under the provisions of the Act while computing the interest chargeable under Section 201 (1A) of the Act. In the facts of the case, the Tribunal was therefore justified in directing the Assessing Officer to calculate the in....