The Vishakhapatnam bench of the Income Tax Appellate Tribunal (ITAT), has quashed an order for non-deduction of TDS while making payment towards the purchase of a property, under section 201(3) of the Income Tax Act, 1962 by considering that the NRI seller has already offered the amount of capital gain received.
The assessee, Mr. Adabala Manmohan, purchased an immovable property in plot no.9, Block No.45, TS No.1031/2, admeasuring 216.88 sq yds, Waltair Ward, Visakhapatnam from Smt. Davuluri Swapna, non-resident and Sri Kodali Rajendra Prasad, a non-resident. The AO proposed to treat the assessee as an assessee in default u/s. 201(1) and accordingly passed an order.
A bench of Shri Duvvuru Rl Reddy (Judicial Member) & Shri S Balakrishnan, (Accountant Member) has observed that the assessee has purchased a property during the FY 2010-11 relevant to the AY 2011-12 on 7/3/2011. The assessee has paid a sum of Rs. 54,22,000/- out of which Rs. 50,39,500/- was paid to the NRI. As per the provisions of section 195 of the Act, the assessee is required to deduct tax at source on payments made to non-residents. In the instant case, the assessee required to deduct the tax at source on the sums chargeable to capital gains.
Deleting the addition, the bench held that “Since the non-resident has discharged her obligation with respect to payment of capital gains tax, the assessee cannot be taxed once again for non-deduction of TDS U/s. 195 of the Act. It is also observed that the seller Smt. Davuluri Sai Swapna is a non-resident from the assessment order passed by AO, Ward-12(2), Hyderabad. Similarly it is also noticed that the AO erred in not adopting the SRO value as prescribed U/s. 50C of the Act while concluding the assessment of the Non-Resident. The reliance placed by the Ld. DR in ITO vs. Shri Rang Infrastructure (P) Ltd (supra) is distinguishable on the fact that the extension of the period of time limit U/s. 201(3) applies only to residents and not to NRIs and hence reliance cannot be placed for the instant case.”
Sri C. Subrahmanyam, CA appared for the assessee.
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