ITO, NEW DELHI vs. M/S. DLF LTD., NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: “A”, NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA No.3608/Del/2015 Assessment Year: 2006-07 ITO, Vs. M/s. DLF Ltd., Ward-74(4), Aaykar Bhawan, DLF Centre, 9th Floor, Laxmi Nagar, New Delhi Sansad Marg, New Delhi PAN :AAACD3494N (Appellant) (Respondent) Appellant by Shri Praveen Kumar, Sr.DR Respondent by Shri Satyajeet Goel, CA

Date of hearing 15.01.2019 Date of pronouncement 25.01.2019

ORDER PER O.P. KANT, A.M.: This appeal by the Revenue is directed against order dated 18/03/2015 passed by the Ld. Commissioner of Income-tax (Appeals)-13, New Delhi [in short ‘the Ld. CIT(A)’] in relation to tax liability created under section 201(1)/201(1A) of the Income-tax Act, 1961 (in short ‘the Act’) for non-deduction of tax on certain payments made in financial year 2005-06. The grounds of appeal raised are reproduced as under:

2 ITA No.3608/Del/2015 deduction of TDS on rent paid to M/s DLF Qutab Enclave Complex Educational Charitable Trust & M/ DLF Qutab Enclave Complex Medical Charitable Trust without appreciating the fact that certificate u/s 197 issued to the said trusts were not valid for the whole financial year 2005- 06. 2. Whether on the facts and circumstances of the case the Ld. CIT(A) has erred in deleting addition on account of non- deduction of TDS on payments made to banks/institutions of Rs.7,07,17,948/- without appreciating the fact established by the Assessing Officer that these payments were in the nature of professional fees for financial year 2005-06. 3. The appellant craves leave to add, alter or amend any of the grounds of appeal at the time of hearing?

DLF Ltd. (Real Estate Division) Name of the trust Rent paid per Total Rent month paid DLF Qutab Enclave Medical Charitable Rs.40517 Rs.486204/- DLF Qutab Enclave Medical Charitable Rs.53604/- Rs.643248/- Trust

3 ITA No.3608/Del/2015

2.1 It was explained by the assessee that the trusts submitted certificate of non-reduction of tax under section 197 of the Act, but according to the Assessing Officer, the said certificates were not for full period of financial year. He pointed out the certificate issued to ‘DLF Qutab Enclave Educational Charitable Trust’ was effective from 21/02/2006 to 31/03/2006 and certificate issued to ‘DLF Qutab Enclave Medical Charitable Trust’ was effective from 28/12/2005 only. Thus, according to Assessing Officer, the assessee committed default under section 201(1) read with section 194I of the Act, and worked out tax and interest liability u/s 201(1) and 201(1A) of the Act is under:

Section Name of Amount Tax Interest Total tax the trust on which payable payable & interest TDS not u/s 201(1) u/s payable deducted 201(IA) u/s DLF Qutab 472700/- 106074/- 70008/- 176082/- 194I Enclave Educational Charitable Trust DLF Qutab 265630/- 596125/- 393442/- 989567/- Enclave Medical Charitable Trust Total 702199/- 463450/- 1165649/-

2.2 The Assessing Officer further, on the basis of information received from the Additional CIT, Range-10, New Delhi, observed that a special audit was conducted to examine the applicability of compliance of provisions of the TDS, wherein it was detected that the assessee company had not deducted TDS on certain

4 ITA No.3608/Del/2015 payments debited under the head “bank charges” and under the head “commission on bank guarantee”, which according to the special auditor are in the nature of professional charges being professional fee charged by various banks/institution for processing/arranging of loans. Such payments were aggregated by the special auditor to Rs.7,07,17,948/-. According to the assessee said payment are in the nature of interest under section 2(28) of the Act. The assessee referred to CBDT circular No. 202 dated 05/07/1976 wherein the service fee or other charges in respect of loans, debts, deposits etc have been included under the definition of the interest under section 2(28A) of the Act. It was submitted that interest under section 2(28A) has been specifically excluded under section 194A of the Act for deduction of tax at source. It was further submitted that the bank is not carrying on professional activities prescribed under section 44A of the Act and thus the said sum is not chargeable for deduction of tax at source under section 194J of the Act. The Assessing Officer rejected the contention of the assessee and held that bank/institutions who issued the bill for such charges have included service tax in the bill raised by them, which shows that both payments are in the nature of service/professional service rendered by banks/institutions. Accordingly, he raised liability of tax and interest under section 201(1) and 201(1A) of the Act amounting to Rs.65,85,678/-. 2.3 In this manner total tax and interest liability for the financial year 2005-06 was worked out to Rs.77,51,327/- (Rs.11,65,649 + Rs.65,85,678). 2.4 The Assessing Officer also raised liability of tax and interest in respect of the rent paid to the two charitable trust in financial

5 ITA No.3608/Del/2015 year 2006-07 alongwith the financial year 2005-06 (period of present appeal) in the combined order dated 31/03/2011. 2.5 The assessee filed appeal before the Ld. CIT(A), who deleted the liability raised by the Assessing Officer in both the financial years i.e. 2005-06 and 2006-07 in the impugned order dated 18/03/2015. 2.6 Aggrieved with the order of the Ld. CIT(A), the Revenue has filed this appeal in relation to tax & interest for FY 2005-06, raising the grounds as reproduced above. 3. We have heard the rival submission of the parties on the issue in dispute and perused the material on record including the paper book containing pages 1 to 27 filed by the assessee. There are two kinds of payments on which issue of deductibility of tax has been disputed. 3.1 The first kind of payment is the ‘rent’ paid by the assessee to two charitable trusts. The Assessing Officer has held that TDS certificate issued for non-deduction of tax by the Income-tax Officer was only for part of the financial year and not for the full financial year, whereas contention of the assessee that the entire amount to the rent was considered in the certificate of non- deduction of the tax issued. After considering the reasoning given by the Assessing Officer and submission of the assessee on the issue in dispute, the Ld. CIT(A) deleted the tax and interest liability observing as under:

“4.3 The reason given by AO and the submission of the appellant are considered. The AO did not consider the entire gamut of facts before coming into conclusion about the applicability of TDS provision on the rent paid. The rent was paid to a charitable trust having tax exemption. Thus, this is a revenue neutral case and deduction of tax at source would not have made

6 ITA No.3608/Del/2015 additional gain for revenue. The TDS on rent paid to trust in any case will be entitled to refund, as appellant will deduct & deposit and trust will claim the refund of the entire TDS as its income is exempt under chapter III of the Act. In view of this, the appellant cannot be held as assessee in default and liable to be taxed u/s 201(1). Similarly, if the recipient of rent viz. the trust is not liable to pay tax on the impugned rental income, the appellant is not liable to pay interest under section 201(1A). The Assessing Officer did not enquire and establish the fact that the trusts are also liable to tax on the rental income received. Moreover, as per the certificate, exemption was available for the entire amount mentioned therein and not restricted to any part payment. The non-applicability of TDS provision is also established by the order of Ld. CIT(A) in appellant’s own case for A.Y. 2007-08 dated 29.05.2012 in appeal No. 66/2010-11 wherein the disallowances made u/s 40(a)(ia) for the rent paid by the appellant to these two trusts have been deleted. In view of this, the demand raised is deleted and the grounds of appeal are allowed.”

3.2 We have also perused certificates for non-reduction of tax issued by the Income-tax Officer, which are placed on page 1, 3 to 6 of the paper book. The certificates have been issued keeping in mind that the recipient charitable trust are exempted from tax and the deducting of tax by the assessee and again claiming refund by the trust would only be futile exercise of utilizing resources of the Income-tax Department without any ultimate collection of taxes. The certificate has exempted the amount of rent mentioned in the certificate from deduction of the tax at source. We agree with the finding of the Ld. CIT(A) that this is a revenue neutral case and deduction of tax at source would not have made additional gain to the Revenue. Thus, in such circumstances, it is unreasonable to penalise the assessee by way of imposing tax and interest liability under section 201(1) and 201(1A) of the Act. The Ld. CIT(A) has also noted that in the appellate proceeding against the quantum of assessment for assessment year 2007-08 in the case of assessee, the first

7 ITA No.3608/Del/2015 appellate authority has deleted the disallowance made by the Assessing Officer under section 40(a)(ia) for non-deduction of tax on the rent paid by the assessee to these two trusts. In view of the above facts and circumstances, we do not find any error in the order of the Ld. CIT(A) on the issue in dispute and accordingly we uphold the same. Thus, the ground no. 1 of the appeal is dismissed. 4. On the second issue of non-deduction of tax at source on payment made to banks/institution, the issue-in-dispute is whether the payment made to banks for processing of the loans are in the nature of bank charges to be considered as part of the interest in view of the CBDT circular (supra) or in the nature of professional services. The Ld. CIT(A) has decided the issue in dispute in favour of the assessee observing as under: “5.3 The reason given by AO and the submission of the appellant are considered. The appellant explained that the amount paid to the bank is against processing fee for the loan applied and subsequently received. The AO considered the amount as payment against services rendered by bank wrongly debited as ‘bank charges’. The issue in this case is whether the payment is in the nature of interest or any professional services. As per C.B.D.T circular no-202 dated 05,07.1976, the fees & other charges paid in respect of money borrowed from bank is in the nature of interest u/s 2(28A). The payment made by the appellant company is in the nature of interest as per the amendments made in the Finance Act, 1976 which is clarified by the circular of CBDT. It states as below:- Definition of “interest” - Section 2(28A) The term “interest” has been defined in new clause (28A) inserted in section 2 with a view to removing doubts about the true character of fees or other charges paid in respect of moneys borrowed or in respect of the credit facilities which have not been utilized. The definition is very wide and covers interest payable in any manner in respect of loans, debts, deposits, claims and other similar rights or obligations. It also includes any service fees or other charges in respect of such loans, debts, deposits, etc., as also fees in the nature of

8 ITA No.3608/Del/2015 commitment charges on unutilized portion of credit facilities. This definition will be applicable for all purposes of the Income- tax Act. In view of this, payment of interest to bank is not liable to TDS. Similarly, the interest levied u/s 201(1A) is also not justified as the demand u/s 201(1) is not valid. In the similar facts and circumstances, the ITAT Cochin bench held in the case of Thomas Muthoot Vs. Deputy Commissioner of Income Tax, TDS, Kottayam (2012) 28 taxmann.com 25 (Codh.) that “What is required to be seen as per the circular issued by the CBDT-and which was circa f approved by Supreme Court in Hindustan Coca Cola Beverage (P) Ltd. v. CIT (2007) 293 ITR 226/ 163 Taxman 355, is that ‘Tax due’ have been paid by the deductee assessee. Therefore, the question of payment of tax does not arise, if there is no tax liability at all even if the assessee herein deducted and remits the TDS amount on the interest paid to the partnership firms, the same is liable to be refunded to the said partnership firm, as there is no tax liability in their respective hands. Under the situation, cannot it be said that the govt. is deprived of the funds due to it or any loss is caused to the Government. Considering the circular of CBDT and the judicial pronouncement, the demand raised is deleted and the grounds of appeal are allowed.”

4.1 Before us, the Revenue has raised that the Ld. CIT(A) has not appreciated that the payments were in the nature of the professional fee. In our opinion, when the payment for the services have been rendered to be part of interest under section 2(28A) of the Act by the Ld. CIT(A), he was not required to give the specific finding as whether the services are not professional services covered under section 194J of the Act. Moreover, we find that under the section 194J professional services means “services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of a countenance your technical consultancy or interior decoration or advertisement or such other professional notified by the board for

9 ITA No.3608/Del/2015 the purpose of section 44AA of the Act”. In our opinion, the services in question for which payment has been made by the assessee are not falling in the professional services as stipulated in section 194J of the Act. 4.2 In view of the above, the Ld. CIT(A) is justified in deleting the tax and interest liability raised on this issue. Accordingly, we uphold the finding of the Ld. CIT(A) and the ground No. 2 of the appeal is dismissed. 5. In the result, the appeal of the Revenue is dismissed.

Order is pronounced in the open court on 25th January, 2019.

Sd/- Sd/- [AMIT SHUKLA] [O.P. KANT] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 25th January, 2019. RK/-[d.t.d.s] Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR

Asst. Registrar, ITAT, New Delhi