Girishbhai Bhikhabhai Macwan, Surat V. Income Tax Officer, TDS, Ward-1, Surat

ITA 100/SRT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0362 (ITAT-SURAT)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-08-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 28-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 201(1); 101

Judgement Text

आयकरअपीलीयअिधकरण,सुरतɊायपीठ,सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANAND PURUSETH, ACCOUNTANT MEMBER आ.अ.सं./ITA No.100/SRT/2024 (AY 2015-16) (Hybrid hearing) Girishbhai Bhikhabhai Macwan, D-5/6, Uma Park, Near Green Valley Appt., B/h Gangeshwar Mahadev Temple, Adajan, Surat-395009. [PAN AKYPM 6340 D] Vs Income Tax Officer, TDS, Ward-1, Aayakar Bhawan, Majura Gate, Surat अपीलाथŎ/Appellant ŮȑथŎ /Respondent आ.अ.सं./ITA No.101/SRT/2024 (AY 2015-16) Vinodini Mojisbhai Mogera, D-5/6, Uma Park, Near Green Valley Appt., B/h Gangeshwar Mahadev Temple, Adajan, Surat-395009. [PAN ADXPM 1852 A] Vs Income Tax Officer, TDS, Ward-1, Aayakar Bhawan, Majura Gate, Surat अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओरसे /Assessee by Ms. Chaitali Shah, CA राजˢ की ओरसे /Revenue by Shri Vinod Kumar, Sr-DR अपील पंजीकरण/Appeal instituted on 30/01/2024 सुनवाई की तारीख/Date of hearing 07/08/2024 उद्घोषणा की तारीख/Date of pronouncement 07/08/2024 Order under Section 254(1) of Income Tax Act PER: BENCH: 1. These two appeals by the two different assessees are directed against the separate orders of learned Commissioner of Income Tax (Appeals)-4, Surat (in short, the ld. CIT(A)] dated 27/12/2023 and 20/12/2023 both for the same assessment years i.e., 2015-16 arising out of order passed by the Assessing Officer/Income Tax Officer, TDS, Ward-1, Surat under Section 201(A) r.w.s. 201(1A) of the Income Tax Act, 1961 (in short, the Act). In both the appeals, the assessee has raised identical grounds of appeal, ITA 100 & 101/Srt/2024 Girishbhai Bhikhabhai Macwan Vs ITO-TDS & 1 Anr. 2 certain facts of both the appeals are common, therefore, with the consent of parties both the appeals were clubbed, heard together and are decided by common order to avoid conflicting decision. 2. Rival submission of parties heard and record perused. The Learned Authorized Representative (Ld. AR) for the assessee submits that the assessee alongwith five co-owners have jointly purchased the agricultural land situated in Moje-Gam Bhatha, Block No. 388, Survey No. 277, Khata No. 222, Surat for a consideration of Rs. 1.93 crore. Since the assessee was having 1/6 th share in the said land, thus not covered by the provisions of Section 194-IA of the Act. The share of assessee was only Rs. 32,17,500/- which is less than the threshold limit of Rs. 50.00 lacs prescribed for deduction of TDS under Section 194-IA of the Act. The assessee brought this fact with the notice of ITO-TDS that the assessee was not liable to deduct TDS on such payment of his share to the seller. The ld. AR of the assessee submits that proviso to Section 194-IA of the Act is only inserted w.e.f. 01/10/2024 by Finance Act-2, 2024 and is applicable prospectively. To support his submission, the ld. AR of the assessee relied upon the following decisions:  Vinod Soni Vs ITO 101 taxmann.com 190 (Delhi Trib)  Oxicia Enterprises Pvt. Ltd. Vs DCIT 109 taxmann.com 19 (Jodh Trib)  Sachin Kumar Kabra Vs CIT ITA No. 107/Ahd/2023 (Jodh.Trib) 3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue supported the orders of the lower authorities. The ld. Sr. DR for the revenue submits that the threshold limit is to be determined as a whole qua the transaction and not with regard to individual purchaser, ITA 100 & 101/Srt/2024 Girishbhai Bhikhabhai Macwan Vs ITO-TDS & 1 Anr. 3 where there is more than one purchaser, otherwise the purpose of provisions of Section 194-IA of the Act will be defeated. 4. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. We have also deliberated on the case laws relied upon by the ld. AR of the assessee. We find that the Assessing Officer initiated a proceeding under Section 201(A) r.w.s. 201(1A) of the Act on receipt of information about non-deduction of TDS under Section 194-IA of the Act on purchase of immovable property in Moje-Gam Bhatha, Block No. 388, Survey No. 277, Surat for a consideration of Rs. 1.93 crore. The Assessing Officer was of the view that since the consideration is more than the threshold limit of Rs. 50.00 lacs, thus the provisions of Section 194-IA of the Act is applicable. On the basis of such view, the Assessing Officer issued show cause notice to the assessee to reply by 18/10/2021. In response to show cause notice, the assessee filed his reply on 14/10/2021. In the reply, the assessee objected for initiation of proceedings under Section 201(A) r.w.s. 201(1A) of the Act. The assessee in his reply specifically pleaded that he had purchased an agricultural land with other five other co-owners and provisions of Section 194-IA of the Act on sale of such immovable property is not applicable being agricultural land. The share of assessee is less than Rs. 50.00 lacs. The contention of assessee was not accepted. The Assessing Officer passed the order against the assessee for non-deduction of TDS and interest under Section 201(1A) of the Act and worked out the payable tax under Section 201(A) of Rs. 2,35,948/- and interest under Section 201(1A) of the Act of ITA 100 & 101/Srt/2024 Girishbhai Bhikhabhai Macwan Vs ITO-TDS & 1 Anr. 4 Rs. 3,22,686/-, thus created a demand of aggregating of Rs. 5,86,634/-. The ld. CIT(A) confirmed the action of Assessing Officer by holding that in his view in case of joint owners of property, the threshold limit of Rs. 50.00 lacs is to be determined property wise and not purchaser wise. Further aggrieved, the assessee has filed present appeal before this Tribunal. 5. We find that on similar facts the Coordinate Bench of Delhi Tribunal In Vinod Soni Vs ITO, (supra) has held that where assessee purchased an immovable property alongwith three other members of family for Rs. 1.50 crores, in view of fact that share of each co-owner came to Rs. 37.50 lakhs which was under threshold limit prescribed by section 194-IA, assessee was not required to deduct tax at source while making payment in question. Further coordinate Bench of Jodhpur Tribunal in Oxcia Enterprises (P) Ltd. Vs DCIT (supra) has held that where assessee purchased an immovable property from Power of Attorney holder of two joint owners of said property for consideration of Rs. 60.12 lakhs, in view of fact that share of each co-owner came to Rs. 30.06 lakhs which was under threshold limit prescribed under section 194-IA, assessee was not required to deduct tax at source while making payment for said purchase. We further find that proviso to sub- section (2) of Section 194-IA of the Act is inserted recently by way of Finance Act No. 2 of 2024 which is applicable from 01/10/2024 wherein new proviso is inserted which prescribed that where there is more than one transferor or transferee in respect of any immovable property, then the consideration shall be the aggregate of the amounts paid or payable by all the transferees to the transferor or all the transferors for transfer of such ITA 100 & 101/Srt/2024 Girishbhai Bhikhabhai Macwan Vs ITO-TDS & 1 Anr. 5 immovable property. Thus, in view of the aforesaid categorical finding of the Coordinate Bench of the Tribunals, and respectfully following the same and keeping in view that the share of assessee is only Rs. 32,17,500/- which is under the threshold limit of Section 194-IA of the Act, hence the demand created under section 201(1) rws 201(1A) is not justified. Therefore, we direct the Assessing officer / ITO (TDS) to delete the addition. 6. In the result, the appeal of assessee being ITA No. 100/Srt/2024 for the A.Y. 2015-16 is allowed. 7. In ITA No. 101/Srt/2024 for the A.Y. 2015-16, the assessee has raised identical grounds of appeal, facts in this appeal is common, therefore by taking a consistent view as taken in ITA No. 100/Srt/2024, we also direct to delete the addition in this case as well. 8. In the result, both the appeals of assessee are allowed. Order pronounced in open court on 07 th August, 2024. Sd/- Sd/- (BIJAYANAND PURSETH) (PAWAN SINGH) [लेखा सद˟/ACCOUNTANT MEMBER] [Ɋाियक सद˟ JUDICIAL MEMBER] Surat, Dated: 07/08/2024 *Ranjan Copy to: 1. Appellant- 2. Respondent- 3. CIT 4. DR By order 5. Guard File True copy/ Sr. Private Secretary/Assistant Registrar, ITAT, Surat