SMT.ANURADHA SRIPATHY,BANGALORE vs. COMMISSIONER OF INCOME TAX, BANGALORE

This is an appeal filed by the assessee company directed against the order of the learned Commissioner of Income-tax (Appeals)-7, Bengaluru [CIT(A)] dated 29/07/2016 for the assessment year 2009- 10.

Briefly facts of the case of as under: The assessee is an individual and is in the business of advertisement agency. The return of income for the assessment year 2009-10 was filed on 29/09/2009 declaring income of Rs.13,78,821/-. Against the return of income, the assessment was completed u/s 143(3) vide order dated 20/12/2011 at total income of Rs.15,78,820/- i.e. after making addition of Rs.2 lakhs. The assessment order has not been agitated in further appeal. Page 2 of 8 While the matters stood thus, the ld. Commissioner of Income- tax, [CIT] Bangalore, in exercise of power of revision vested with him u/s 263of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] vide order dated 20/03/2014, set aside the assessment order for due verification of the expenditure of Rs.1,01,62,709/- on which TDS was not deducted at source and disallowed the same invoking the provisions of section 40(a)(ia) of the Act after due verification and affording an opportunity to the assessee.

Consequent to this order of the ld.CIT, the Assessing Officer passed consequential assessment order vide order dated 27/08/2014 disallowing a sum of Rs.1,01,62,709/- u/s 40(a)(ia) as no tax was deducted at source vide his order dated 20/3/2014.

On appeal before the ld.CIT(A), the ld.CIT(A) confirmed the assessment order vide para 5.1 of the order which is as under:

Being aggrieved, the assessee is before us in the present appeal. The ld.AR of the assessee vehemently contended that the provisions of section 40(a)(ia) can be invoked only in the case of payments outstanding at the year-end. He placed reliance in this Page 3 of 8 regard on the decision in the case of CIT vs. Vector Shipping Pvt. Ltd. which was affirmed by the Honorable Supreme Court dismissing SLP.

We heard rival submissions and perused the material on record. The only issue in the present appeal is whether the Assessing Officer was justified in disallowing a sum of Rs.1,01,62,709/- invoking the provisions of section 40(a)(ia) of the Act. There is no dispute of fact that the assessee had not deducted tax at source on these payments. The only objection raised by the assessee is that some payments are below the prescribed limit of Rs.10,000 to attract TDS provisions and some of the amounts are not outstanding at the end of the year. Therefore applying the Special bench decision in the case of Merilin Shipping & Transports vs. ACIT (136 ITD 23), provisions of section 40(a)(ia) cannot be applied. The submissions of the assessee company cannot be accepted for the reason that from the perusal of the details filed before the Assessing Officer as well as the ld.CIT(A) it is clear that each of the payments is above the limit of Rs.10000/- and the ratio of the special bench decision in the case of Merilin Shipping & Transports (supra) is reversed by the Honorable Apex Court in the case of Palam Gas Service Vs. CIT (394 ITR 300)(SC) wherein it has been held as under:

Our view is fortified by the Explanatory Note to Finance Bill (No. 2) of 2004. Sub-clause (ia) of clause (a) of Section 40 was introduced by the Finance Bill (No. 2) of 2004 with effect from 01.04.2005. The Explanatory Note to Finance Bill-2004 stated:- " ** ** ** With a view to augment compliance of TDS provisions, it is proposed to extend the provisions of section 40(a)(i) to payments of interest, commission or brokerage, fees for professional services or fees for technical services to residents, and payments to a resident contractor or sub-contractor for carrying out any work (including supply of labour for carrying out any work), on which tax has not been deducted or after deduction, has not been paid before the expiry of the time prescribed under sub-section(1) of section 200 and in accordance with the other provisions of Chapter XVII-B. ……"

The adherence to the provisions ensures not merely the collection of tax but also enables the authorities to bring within their fold all such persons who are liable to come within the network of tax payers. The intention was to ensure the collection of tax irrespective of the system of accounting followed by the assessees. We do not see how this dual purpose of augmenting the compliance of Chapter XVII and bringing within the Department's fold tax payers is served by confining the provisions of Section 40(a)(ia) to assessees who follow the mercantile system. Nor do we find anything that indicates that for some reason the legislature intended achieving these objectives only by confining the operation of Section 40(a)(ia) to assessees who follow the mercantile system. Page 5 of 8 22. The same view was taken by a Division Bench of the Calcutta High Court in Commissioner of Income Tax v. Crescent Export Syndicate, (supra). It was held:- '12.3. It is noticeable that Section 40(a) is applicable irrespective of the method of accounting followed by an assessee. Therefore, by using the term 'payable' legislature included the entire accrued liability. If assessee was following mercantile system of accounting, then the moment amount was credited to the account of payee on accrual of liability, TDS was required to be made but if assessee was following cash system of accounting, then on making payment TDS was to be made as the liability was discharged by making payment. The TDS provisions are applicable both in the situation of actual payment as well of the credit of the amount. It becomes very clear from the fact that the phrase, 'on which tax is deductible at source under Chapter XVII-B', was not there in the Bill but incorporated in the Act. This was not without any purpose.' 15. We approve the aforesaid view as well. As a fortiorari, it follows that Section 40(a)(ia) covers not only those cases where the amount is payable but also when it is paid. In this behalf, one has to keep in mind the purpose with which Section 40 was enacted and that has already been noted above. We have also to keep in mind the provisions of Sections 194C and 200. Once it is found that the aforesaid Sections mandate a person to deduct tax at source not only on the amounts payable but also when the sums are actually paid to the contractor, any person who does not adhere to this statutory obligation has to suffer the consequences which are stipulated in the Act itself. Certain consequences of failure to deduct tax at source from the payments made, where tax was to be deducted at source or failure to pay the same to the credit of the Central Government, are stipulated in Section 201 of the Act. This Section provides that in that contingency, such a person would be deemed to be an assessee in default in respect of such tax. While stipulating this consequence, Section 201 categorically states that the aforesaid Sections would be without prejudice to any other consequences which that defaulter may incur. Other consequences are provided under Section 40(a)(ia) of the Act, namely, payments made by such a person to a contractor shall not be treated as deductible expenditure. When read in this context, it is clear that Section 40(a)(ia) deals with the nature of default and the consequences thereof. Default is relatable to Chapter XVIIB (in the instant case Sections 194C and 200, which provisions are in the aforesaid Chapter). When the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word 'payable' occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is Page 6 of 8 actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. The Punjab & Haryana High Court has exhaustively interpreted Section 40(a(ia) keeping in mind different aspects. We would again quote the following paragraphs from the said judgment, with our complete approval thereto: "26. Further, the mere incurring of a liability does not require an assessee to deduct the tax at source even if such payments, if made, would require an assessee to deduct the tax at source. The liability to deduct tax at source under Chapter XVII-B arises only upon payments being made or where so specified under the sections in Chapter XVII, the amount is credited to the account of the payee. In other words, the liability to deduct tax at source arises not on account of the assessee being liable to the payee but only upon the liability being discharged in the case of an assessee following the cash system and upon credit being given by an assessee following the mercantile system. This is clear from every section in Chapter XVII.

Take for instance, the case of an assessee, who follows the cash system of accounting and where the assessee who though liable to pay the contractor, fails to do so for any reason. The assessee is not then liable to deduct tax at source. Take also the case of an assessee, who follows the mercantile system. Such an assessee may have incurred the liability to pay amounts to a party. Such an assessee is also not bound to deduct tax at source unless he credits such sums to the account of the party/payee, such as, a contractor. This is clear from Section 194C set out earlier. The liability to deduct tax at source, in the case of an assessee following the cash system, arises only when the payment is made and in the case of an assessee following the mercantile system, when he credits such sum to the account of the party entitled to receive the payment.

The government has nothing to do with the dispute between the assessee and the payee such as a contractor. The provisions of the Act including Section 40 and the provisions of Chapter XVII do not entitle the tax authorities to adjudicate the liability of an assessee to make payment to the payee/other contracting party. The appellant's submission, if accepted, would require an adjudication by the tax authorities as to the liability of the assessee to make payment. They would then be required to investigate all the records of an assessee to ascertain its liability to third parties. This could in many cases be an extremely complicated task especially in the absence of the third party. The third party may not press the claim. The parties may settle the Page 7 of 8 dispute, if any. This is an exercise not even remotely required or even contemplated by the section."

As mentioned above, the Punjab & Haryana High Court found support from the judgments of the Madras and Calcutta High Courts taking identical view and by extensively quoting from the said judgments.

Insofar as judgment of the Allahabad High Court is concerned, reading thereof would reflect that the High Court, after noticing the fact that since the amounts had already been paid, it straightaway concluded, without any discussion, that Section 40(a)(ia) would apply only when the amount is 'payable' and dismissed the appeal of the Department stating that the question of law framed did not arise for consideration. No doubt, the Special Leave Petition thereagainst was dismissed by this Court in limine. However, that would not amount to confirming the view of the Allahabad High Court (See V.M. Salgaocar & Bros. (P.) Ltd. v. CIT [2000] 243 ITR 383/110 Taxman 67 (SC) and Supreme Court Employees Welfare Association v. Union of India [1989] 4 SCC 187 .

In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in Vector Shipping Services (P) Ltd. (supra) did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court.”

In the result, the appeal filed by the assessee is dismissed.