M.P. STATE CIVIL SUPPLIES CORP. LTD. vs. INCOME TAX OFFICER(TDS)-1,

Per Bench This is a set of three Appeals by the Assessee agitating the dismissal of it‟s appeals contesting the order dated 21/3/2013 under sections 201(1) & 201(1A) of the Income Tax Act, 1961 („the Act‟, hereinafter) in it‟s case for three consecutive years, being assessment years (AYs). 2010-11 to 2012-13, by the Commissioner of Income Tax (Appeals)-1, Jabalpur („CIT(A)‟ for short) vide again a consolidated order dated 16/11/2015. The appeals raising the same issues, per identically worded grounds, the same were heard together, and are being disposed of per a common, consolidated order.

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ITA Nos. 22-24/JAB/2016 (AYs. 2010-11 to 2012-13) M.P. State Civil Supplies Corp. Ltd. v. ITO 2. The short issue/s in these appeals is the maintainability of the order/s u/s. 201 & 201(1A) for failure to deduct tax at source and interest thereon (for the delayed deposit with the Central Government) respectively for the relevant years, since upheld by the first appellate authority.

ITA Nos. 22-24/JAB/2016 (AYs. 2010-11 to 2012-13) M.P. State Civil Supplies Corp. Ltd. v. ITO is crystal clear and the aspect of non-deduction of TDS on the various heads clearly stands admitted. It is also not the case of the assessee that these payments did not attract TDS in the argument filed before the under signed. The assessee has constantly harped on the technical nature of the default. The confused and non acceptable system of accounting has also been clearly admitted on page 1 of the written submission. It is clearly mentioned that the appellant followed hybrid system of accounting at the relevant point of time for recognising income. For Government grants cash system of accounting is followed. For contract agreements the assessee follows mercantile system of accounting. All these facts make it crystal clear that such a hybrid system of accounting leads to a confused states of affairs. The reliance of the assessee on the judgment of Hindustan Coca Cola 293 ITR 226 (SC) is completely misplaced because that judgment is about payment of taxes by the deductees and consequentially no amount being recoverable from the deductor. In the instant case there is claim of exemption on behalf of the deductees which is completely unsustainable in law and facts. There is this further aspect of not following the procedure laid down u/s 197. In view of the above facts, it is clear that the AO has correctly fastened the TDS liabilities in all the three years and the demand raised is hereby confirmed.” (emphasis, ours) 4. We have heard the parties, and perused the material on record. 4.1 Though the appeals raise several grounds, Shri Srivastava would, at the outset, submit that he shall be pressing only Ground 9, which reads as under:- “The ld. CIT(A) failed to examine whether income of recipient is exempt from tax or whether tax has been paid by the recipient in view of judgment of Hon'ble Apex Court in Hindustan Cola.” The ld. CIT(A) having dealt with the said aspect, Shri Srivastava, upon being enquired by the Bench in the matter, would admit that none of the societies had claimed exemption u/s. 80P, on the underlying strength of which, as also evident from the impugned order, the plea as to the applicability of the decision in Hindustan Coca Cola Beverage P. Ltd. v. CIT [2007] 293 ITR 226 (SC) was raised before the first appellate authority. It is clear that neither before him nor before us there is anything on record to exhibit the income of the payee-societies, much less the whole of it, as exempt u/s. 80P, or even if they have claimed it per their returns of income for the relevant years. Rather, as observed by the ld. CIT(A), the proper course, even in such a case, is for the payees to obtain a certificate of deduction of tax at source u/s. 197 at nil or a lower rate, only which would enable the assessee to either not deduct tax at source or do so at a lower rate. Further, as we see it, it is 3 | P a g e

ITA Nos. 22-24/JAB/2016 (AYs. 2010-11 to 2012-13) M.P. State Civil Supplies Corp. Ltd. v. ITO only where the fact of exemption from tax of the payee‟s income, which is subject to TDS, is admitted and unqualified, as where it is not hinged by or subject to any conditionality, that perhaps one could argue of non-liability to TDS (inasmuch as the tax deduction provisions would extend only to income chargeable to tax), else not (see G.E. India Technology Centre (P.) Ltd. v. CIT [2010] 327 ITR 456 (SC)). The Apex Court in Hindustan Coca Cola Beverage P. Ltd. (supra) held that a payer may not deduct tax at source where the same stands already deposited by the payee (with the Central Govt.), adducing proof to that effect, though shall be liable to interest for the delayed payment of tax as well as penalty, being the position of law as clarified by the Board itself per it‟s Circular dated 29/1/1997. The assessee‟s reliance on the said decision is wholly unevidenced and without merit.

4.2 The assessee‟s liability to deduct tax at source in respect of the sums under reference being patent and, in fact, admitted, we have no hesitation in, upholding the impugned order, dismissing the assessee‟s appeals as not pressed/without merit. We decide accordingly.

Sr. Private Secretary, ITAT, Jabalpur. 4 | P a g e