ACIT, CIRCLE-74(1), NEW DELHI vs. DEPARTMENT OF SCHOOL EDUCATION AND LITERACY, NEW DELHI

The appeal has been filed by the Revenue against order dated 17.01.2019 in appeal no. 124/18-19/4025 in assessment year 2011-12 passed

M/s. Department of School Education and Literacy 2 by Commissioner of Income Tax (Appeals)-30, New Delhi (hereinafter referred to as the First Appellate Authority in short ‘Ld. F.A.A.’) in regard to the appeal before it arising out of order dated 29.12.2017 u/s 201(1)/201(1A) of the Income Tax Act, 1961 passed by ACIT, New Delhi (hereinafter referred to as the Assessing Officer ‘AO’).

M/s. Department of School Education and Literacy 3 “6. In view of submissions of the appellant and in view of precedence as available, I adjudicate as follows- (i) Income of M/s EdCIL is to be taken as 16%. From the contracts furnished and examined it is seen that the income of the EdCIL is to be 16% of the expenditure incurred on the schemes of MHRD during the financial year, and this is its service charge. The MHRD is an assessee in default u/s 201 as it had failed to deduct TDS u/s 194J. This default is in not deducting TDS on the 16% of the expenditure incurred on the Schemes of the MHRD during the financial year, as this was service charge, in the nature of fees for professional or technical services. However, as per the first proviso of section 201(1), the assessee (MHRD) is deemed to be not an assessee in default as all the conditions laid out therein have been duly satisfied. The AO will verify whether M/s. EDCIL has furnished its return of income and reflected the income of 16% from the schemes from MHRD and have paid taxes thereon and grant appropriate relief to the appellant.

(ii) The provisions of section 201(1A) however apply. The assessee is liable to pay simple interest as per provisions of section 201(1A). The AO is directed to compute the default on the fees for profession or technical services, being 16% of the expenditure incurred on the schemes of the MHRD during the financial year, that was paid to EdCIL for the services rendered by it, and not on the full amount of grant-in-aid given to EdCIL. The AO is directed to examine and make correct working of interest u/s 201(1A) of the I T Act, 1961, after verifying appellant’s claim.

EdCIL for the service rendered by Department of Higher Education, and not on the full amount of grant in aid given to EdCIL as payment made to consultant. 2. The ld. CIT(A) has erred in holding the fact that interest u/s 201(1A) should be charged only on the amount of expenses disbursed to EdCIL, which was the part of consultancy charge of 5%/ 16%/ 20%. 3. The appellant craves leave to add, alter or amend any of the ground of appeal at the time of hearing.”

5. Heard and perused the record. On behalf of the Revenue it was submitted that Ld. CIT(A) has fallen in error in not appreciating that they were running contracts and the TDS was to be deducted on the gross amounts. It was submitted that Ld. AO has rightly calculated the amount in terms of default on the basis of aggregate of the funds disburse. 5.1 On the other hand, Ld. Counsel for the assessee submitted that as EdCIL had paid the taxes there was no default.

6. The grounds raised are connected therefore same are taken up together for determination. In regard to the grounds it can be observed that Ld. CIT(A) has followed the order dated 27.07.2017 by which in regard to assessment year 2010-11 similar findings were recorded. There appears to be no error in the findings as it is not disputed that EdCIL had furnished its return reflecting income while computing paying tax on the basis of service charges @ 20% / 16% or 5%. It is also not disputed that CA Certificate also stood filed for the purpose of proviso to Section 201(1) of the Act, therefore, there is no error in finding of Ld. CIT appeal that provisions of Section 201(1) are not applicable and appellant is not assessee in default. The consequential effect of same is that as for the purpose of Section 201(1A) the default interest has to be calculated on the basis of professional or M/s. Department of School Education and Literacy 5 technical services fee paid to EdCIL @ 20% or 16% or 5% of the grant in aid, as per relevnat MOU/agreement and not the whole of grant. Thus no interference is required in the findings and directions of Ld. CIT(A). The grounds raised have no substance. Accordingly, the appeal of Revenue is dismissed.

Order pronounced in the open court on 14th July, 2022.