No fault of bank for non deduction of TDS relying on CA Certificate

State Bank of Patiala Vs ITO (ITAT Amritsar)

Admittedly the issue pertaining to exemption of I.K. Gujral Punjab Technical University Jalandhar, it is pending adjudication before the Hon’ble High Court of Punjab and Haryana. Nonetheless the certificate was issued by the chartered accountant of I.K. Gujral Punjab Technical University Jalandhar, certifying that the assessee is not required to deduct the TDS as income of the University is exempt u/s. 10(23C)(iiiab) of the IT Act, 1961 and accordingly no tax was deducted at source on account of interest paid of FDRs of PTU.  In any case no fault can be attributed on the assessee, on account of non-deduction of TDS once the certificate was issued by the recipient.

FULL TEXT OF THE ITAT JUDGMENT

1. All these four appeals arise out of the order of Ld CIT(A) wherein CIT(A) has confirmed the order of ITO(TDS) Jalandhar without applying his mind and without appreciating the facts of the case.

2. The assessee has raised the following grounds of appeal in ITA Nos. 450 to 453/Asr/2018

“1. That the order of the ITO (TDS) as well as the order of Learned CIT(A) are both against the facts of the case and are untenable in law.

2. That the worthly CIT(A) has not appreciated the facts of the case and merely relied on order of the ITO (TDS) and without any rhyme & reason, the Ld. CIT(A) has confirmed the order of the ITO (TDS). As such the order of the CIT (A) is bad in the eyes of law and is liable to be cancelled.

3. That the Ld. CIT(A) did not appreciate that there was no liability on account of demand created at Rs. 63,54,374/- on account of TDS and Interest (Rs. 4021756 TDS+ Rs. 2332618/- Interest).

4. That the authorities below did not appreciate that interest was paid on FDRs to I.K.G. Punjab Technical University, Kapurthala. The bank has given interest on the said fixed deposits to the PTU. The bank had not deducted the tax on interest on fixed deposits of the PTU as there was no liability to deduct the same.

5. Tat the Ld. CIT(A) did not appreciate that I.K.G. Punjab T Gechnical University is State Government owned university established by the Govt. of Punjab Technical University Act, 1996 (Act I of 1997) vide Notification dated 16.01.1997 by the department of Legal and Legislative Affairs, Punjab, solely for the educational purpose and not for purpose of profit.

6. That we were informed by PTU vide Letter No. PTU/ACTT/DF/759 dated 25.03.2013 along with certificate from Charered Accountant that the income f the University is exempt u/s. 10(23C)(iiiab) of the IT Act, 1961 and accordingly no tax was deducted at source on account of interest paid of FDRs of PTU. Thus there was reasonable and sufficient cause for not deducting the tax at source and the provision of section 201(1)/201(1A) is not at all applicable and the order of the Ld. CIT(A) thereby confirming the order of the ITO (TDS) is bad in the eyes of law and the same may be cancelled.

7. That even otherwise there was reasonablecause for not deducting the tax at source and as such this case does not fallwithin the mischief of section 201(1)/201(1A) of IT Act, 1961.

8. That the authorities below did not not appreciate that the provisions of section 201(1)/201(1A) were not applicable to the present facts and circumstances of the case and the assessee cannot be treated as the assessee in default u/s. 201(1)/201(1A) because the interest paid to I.K.G. Punjab Technical University has duly been shown by them as income in their return filed by the University and there was not loos to the REcvenue even otherwise.

9. That the authorities below did not appreciate that the provisions of section 197 are not at all applicable to the present facts and circumstances of this case in view of Board’s Circular No. 4/2002 dated 16/07/2002 as the income of the University is exempt u/s. 10. As such there was no liability u/s. 201(1)/201(1A).

10. That any other ground of appeal which may be urged at the time of hearing of the appeal.”

3. In this connection, it is relevant to point out that the point involved in all the four appeals is common.

4. In this case, the ITO (TDS) has created the following demands as per details herebelow:-

5. Ld Ar had submitted that initiation of proceedings by ITO(TDS) u/s 201(1)/201(1A) could not have been initiated without satisfying himself as to whether the deductee /payee assessee has failed to pay taxes directly, which has been held as foundational and jurisdictional fact and only after finding that deductee/payee assessee has failed to pay tax directly, deductor i.e. the assessee can be deemed to be an assessee in default in respect of such tax and thereafter only notice u/s 201(1)/201(1A) can be issued and without satisfying this jurisdictional fact by the AO(TDS) the very initiation of proceedings would be without jurisdiction and all subsequent actions would be without jurisdiction andwould be null and void. Thus, it is clear that the present ITO(TDS) did not have jurisdiction.

6. In this connection, Ld Ar had relied upon decision of ITAT, Delhi Bench ‘A’ in the case of The Branch Manager, Allahabad Bank, Ghaziabad [Refer Page No.107 to 110] in ITA No. 5992, 5993 & 5994/Del./2012, order dated 04/03/2016 and it was observed by the Tribunal as under:- [Refer Page No.109 of the paper-book]

“From a reading of the AO’s order, it is clear that AO has not made any exercise to ascertain whether the deductee/payee assessee has failed to pay taxes directly before initiation of proceedings u/s 201/201(1A) of the Act, thus assumption of jurisdiction itself stands vitiated and all subsequent proceedings are null in the eyes of law. Therefore, we quash the initiation of proceedings of the AO at the outset itself. The AO ought to have assumed jurisdiction only after satisfying the jurisdictional fact as laid by the Hon’ble Jurisdictional High Court which as stated before is obviously absent. So, we quash the impugned assessments itself”

7. Further Ld Ar relied upon the decision of Allahabad High Court in the case of M/s Jagran Prakashan Ltd. vs. DCIT reported in 345 ITR 288 (Allahabad) [Refer Page No.28 to 69 of the paper-book] in which it was held as under:-

…..  it is clear that deductor cannot be treated an assessee in default till it is found that assessee has also failed to pay such tax directly. In the present case, the Income Tax authorities had not adverted to the Explanation to Section 191 nor had applied their mind as to whether the assessee has also _.failed to pay such tax directly. Thus, to declare a deductor, who failed to deduct the tax at source as an assessee in dqfault, condition precedent is that assessee has also failed to pay tax directly. The fact that assessee has failed to pay tax directly is thus, foundational and jurisdictional fact and only after finding that assessee has failed to pay tax directly, deductor can be deemed to be an assessee in default in respect of such tax… ….”

8. It was contended by the Ar that in a similar matter the Agra Bench of the Tribunal, observed after taking note of the law laid in M/s Jagriti Prakashan Ltd. (supra) held as under:-

“It is clear that the onus is on the revenue to demonstrate that the taxes have not been recovered from the person who had the primarily liability to pay tax, and it is only when the primary liability is not discharged that vicarious recovery liability can be invoked. Once all the details of the persons to whom payments have been made are on record, it is for the Assessing officer, who has all the powers to requisition the information from such payers and from the income tax authorities, to ascertain whether or not taxes have been paid by the persons in receipt of the amounts from which taxes have not been withheld As a result of judgment of Hon’ble Allahabad High Court in Jagran Prakashan’s case (supra), there is a paradigm shift in the manner in which recovery provisions under section 201(1) can be invoked As observed by their Lordships, the provisions of section 201(1) cannot be invoked and the “tax deductor cannot be treated an assessee in default till it is found that assessee has also failed to pay such tax directly”. Once this finding about the non-payment of taxes by the recipient is held to a condition precedent to invoking section 201(1), the onus is on the Assessing Officer to demonstrate that the condition is satisfied No doubt the assessee has to submit all such information about the recipient as he is obliged to maintain under the law, once this information is submitted, it is for the Assessing Officer to ascertain whether or not the taxes have been paid by the recipient of income. This approach, in our humble understanding, is in consonance with the law laid down by Hon’ble Allahabad High Court.”

9. Furthermore, it was explained before the authorities below that non-deduction of tax at source is on the basis of claim made by the deductee and the institution IKG Punjab Technical University is not liable to pay tax u/s 10(23)(iiiab).

10. It was also submitted that IKG University is a State Govt. owned university established by Govt. of Punjab under the Punjab Technical University Act, 1996 vide notification dated 16/01/1997 solely for the educational purpose and not for purpose of profit. It is also stated that PTU vide its letter No. PTU/ACTT/DF/759 dated 25.03.2003 along-with the certificate from a Chartered Accountant informed the bank that the income of the university is exempt u/s 10(23C)(iiiab) of the IT Act, 1961. The appellant has submitted that relying on the said certificate of Chartered Accountant supplied by the PTU, the Bank had not deducted the TDS on interest on FDs of the PTU. The deductee i.e. Punjab Technical University is an existing assessee and has duly filed its income tax returns and the copies of Income Tax Returns filed for the Assessment Year 2013-14 to Assessment Year 2016-17 are enclosed herewith [Refer Page No.15 to 23 of the paper-book]. Thus, it dulyproves that the interest to whom was paid was also existing assessee. As such there was no default on the part of the appellant and as such the interest charged and TDS payable is not called for.

11. The appellant has also placed reliance on the judgment of Hon’ble Supreme Court in the case of Hindustan Coca Cola Beverage Pvt. Ltd. vs. CIT 163 Taxman 355 [Refer Page No.24 to 27 of the paper-book] and submitted that where the deductee/recipient of income has already paid taxes on amount received from the deductor, the department once again cannot recover tax from deductor on same income by treating deductor to be assessee in default for shortfall in its amount of tax deducted at source. The appellant has also stated that he should not be treated as assessee in default u/s 201(1) of the IT Act.

12. This view further find support from the decision of ITAT, Amritsar Bench, Amritsar in the case of M/s R.C. Industries vs. ITO in ITA No. 90 to 92(ASR)/2013, order dated 03/06/2016 relating to AY 2005-06 to 2007-08 [Refer Page No.85 to 99 of the paper-book].

13. Again, this view finds support from the decision of ITAT, Amritsar Bench, Amritsar in the case of M/s Puja Flour Mills vs. ITO (TDS) Amritsar in ITA No. 369 to 371(ASR)/2019, order dated 30/06/2020 relating to AY 2013-14 to 2015-.

14. In this connection, AR relied upon the decision of Hon’ble Punjab & Haryana High Court in the case of CIT vs. Canara Bank as reported in 386 ITR 299 [Refer Page No.70 to 72 of the paper-book) where it was held that if an organization to which interest was paid is exempt from payment of tax, there was no need for deduction of TDS by assessee. It is further relevant to point out that a Certificate of accountant under first proviso to sub-section (1) of section 201 of the Income Tax Act, 1961 for certifying the furnishing of return of income therein showing the interest income on fixed deposits and payment of tax etc. by the payee is enclosed herewith for the period AY 2013-14 to 2016-17 [Refer Page No.73 to 84 of the paper-book] in which the university has admitted that they have duly shown the interest income received from State Bank of Patiala. Thus there was no justification for charging any interest u/s 201(1) & 201(1A) and TDS and as such the appeal of the assessee may kindly be allowed.

15. It is further relevant to point out that the Ld CIT(A) has emphasized that the exemption u/s 10(23C)(vi) has been rejected by the CIT(E) and the same order has been confirmed by ITAT, Chandigarh Bench. Thus even if this factor is taken into consideration as referred by the CIT(A) in that case the double taxation is not permissible because once in the hands of the Punjab Technical University and also again in the hands of the appellant. Thus, on this very base also the addition made and interest charged u/s 201/201(1 A) is not at all called for. As such the order of the CIT(A) thereby confirming the order of the ITO(TDS) is not at all called for and the order of the worthy CIT(A) is liable to be cancelled.

16. The Ld.DR for the revenue had drawn our attention to the order passed by the CIT(A) more particularly paragraph 4.7, 4.8 and 4.9 of the order. From the perusal of the paragraphs of the CIT(A), it is clear that the exemption was rejected by the assessing officer in the hands of Punjab University, the order of the assessing officer was challenged before the ITAT Chandigarh bench, which in turn had also confirmed the order passed by the lower authorities. It was submitted that the now the matter is pending adjudication before the Hon’ble High Court. It was submitted that there was clear-cut default on the part of the assessee before us and therefore the assessee is not entitled to any relief.

17. In rebuttal , it was submitted by the Ld.AR that In continuation of our earlier submissions and arguments, it is relevant to point out that certain appeals are pending before Punjab & Haryana High Court relating to I.K. Gujral Punjab Technical University, Jalandhar and the point involved in these appeals relates to section 10(23C)(vi) and 12AA. The certain matters relating to I.K. Gujral Punjab Technical University Jalandhar are also pending before CIT(Exemptions) Chandigarh. In this connection, we are enclosing herewith a letter dated 22/09/2021 issued by I.K. Gujral Punjab Technical University, Jalandhar which will speak for itself and will clarify the whole position. As such it is prayed that the matter may be set-aside and restored back to the file of ITO(TDS) or CIT(A) in the interest of natural justice, so that the matter may be decided to determine the assessee in default.

18. We have heard the rival contention the parties and perused the material available on record. Admittedly the issue pertaining to exemption of I.K. Gujral Punjab Technical University Jalandhar, it is pending adjudication before the Hon’ble High Court of Punjab and Haryana. Nonetheless the certificate was issued by the chartered accountant of I.K. Gujral Punjab Technical University Jalandhar, certifying that the assessee is not required to deduct the TDS. In any case no fault can be attributed on the assessee, on account of non-deduction of TDS once the certificate was issued by the recipient.

19. Considering the totality of the circumstances and the facts of the present case, we deem it appropriate to remand back all the appeals to the file of the CIT(A), with the direction to await the outcome of the appeals of I.K. Gujral Punjab Technical University Jalandhar, for the assessment years under consideration. It is directed that if the High Court uphold the order of the Tribunal, rejecting the application for registration/exemption to the University, then the CIT shall decide the issue of assessee in default against the assessee after applying the decision of the Hon’ble High Court. The Ld. AR has no objection to apply the decision of the Hon’ble High Court in terms of the provisions of section 158A of the Income Tax Act.

20. However, we make it clear that for the subsequent assessment years, which are not subject matters of appeal, the certificate if any issued by I.K. Gujral Punjab Technical University Jalandhar would not be considered by the assessee and the assessee would be considered as assessee in default,in case there is failure to deduct the TDS, as per law.

21. In the light of the above all the appeals of the assessee are allowed for statistical purposes.

Order pronounced in the open court on 24/09/2021