Income Tax Appellate Tribunal - Jodhpur
Sachin Kumar Kabra, Bhilwara vs Ito (Tds), Bhilwara on 23 January, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
JODHPUR BENCH, JODHPUR.
BEFORE: DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER &
SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER
I.T.A. No. 107/Jodh/2023
Assessment Year: 2014-15
Sachin Kumar Kabra Vs. CIT,
Sohan Villa, 90- Vidhyut NFAC, Delhi.
Nagar, Bhilwara.
[PAN:ANAPK2864R] (Respondent)
(Appellant)
Appellant by Sh.Avdhesh Singhvi, C.A.
Respondent by Ms. Nidhi Nair, Sr. DR
Date of Hearing 22.01.2024
Date of Pronouncement 23.01.2024
ORDER
Per:DR. S. Seethalakshmi, JM:
This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 28.02.2023 [here in after "ld.CIT(A)(NFAC)"] for assessment year 2014-15 which in turn arise from the order dated 22.02.2021 passed under section 201(1) r.w.s. 201(1A) of the Income Tax Act, by the ITO, TDS, Bhilwara.
2. In this appeal, the assessee has raised following grounds: -
I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 2 " 1. Each partner/owner of a joint property, their share only should be considered separately for deduction of TDS u/s 194-IA.
2. That the Ld. Commissioner (Appeals) had erred in law as well as in facts by sustaining the addition as an default in compliance of provision of Sec. 194A and request your good self to set aside the same."
3. Brief fact of the case is that the assessee along with his brother Shri Nitin Kabra has purchased an immovable property worth Rs. 65,11,000/- from UIT Bhilwara on 30.07.2013. The ld. ITO, Bhilwara submitted that as per provisions of sub-section (1)of section 194-IA of the Income Tax Act, 1961, any person, being a transferee, responsible for paying (other than the person referred to in section 194LA) to a resident transferor any sum by way of consideration for transfer of any Immovable Property (other than Agricultural Land), shall, at the time of credit of such sum to the account of the transferor or at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one percent of such sum as Income-tax thereon. Further, sub-section (2) of section 194-IA states that no deduction under sub-section (1) shall be made where the consideration for the transfer of an immovable property is less than fifty lakh rupees. On verification from OLTAS as well as 26AS Form, it reveals that the Diductor assessee had not Deducted Tax at Source whereas she was liable to Deduct Tax at Source @ 1% оn the value of Immovable Property purchased. Based on this, the ld. AO directed the assessee to pay the tax amount of Rs. 32,555/- u/s 201(1) of the I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 3 Income Tax Act, 1961 and simple interest u/s 201(1A) of the Act amounting to Rs. 29,625/-, totalling round off to Rs. 62,180/-.
4. Aggrieved from the order of the assessing officer, assessee preferred an appeal before the ld. CIT(A). A propos to the grounds of the appeal so raised by the assessee, the relevant finding of the ld. CIT(A) is reiterated here in below:-
"5. Findings:
The Grounds of Appeal, the facts and circumstances of the case, the case law adduced by the appellant and the submissions of the appellant have been carefully considered. The facts of the case are that the assessee Shri Sachin Kumar Kabra alongwith his brother Shri Nitin Kumar Kabra has purchased an immovable property worth Rs. 65,11,000/- from UIT, Bhilwara on 30.07.2013 which was registered in the office of sub Registrar, Bhilwara.
No TDS was made at the time of the purchase of immovable property while making payment to the transferor, nor deposited. In assessment, AO held the assessee to be deemed to be an assessee in default for not deducting TDS as per section 194-IA on his share of Rs.32,55,500 (1/2 share of Rs.65,11,000/-) and raised demand of Rs.62,180/-. Aggrieved, the assessee is in appeal.
The appellant has contended that 1941A is inapplicable since the share of each trancferee in the purchase is less that Rs.50 lakh. The contention has been examined. The threshold limit of Rs.50lakh is with reference to each property. If a property transaction involves more than one buyer, and share of each buyer in the property is less that Rs.50 lakh but the value of the property in aggregate is more that Rs.50 lakh then provisions of section 194-1A will be applicable. In such case, TDS will be deducted and deposited by each buyer in respect of their respective share in the property. This is so because the provisions of subsection (2) of section 194-IA read: "(2) No deduction under subsection (1) shall be made where the consideration for the transfer of an immovable property and the stamp duty value of such property, both, is less than fifty lakh rupees."
Thus, the Grounds of Appeal are hereby dismissed.
6. As a result, the appeal is dismissed."
5. As the assessee did not receive any favour from the appeal filed before ld.
NFAC/ CIT(A). The present appeal filed against the said order of the ld. NFAC I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 4 before this tribunal on the grounds as reiterated in para 2 above. To support the grounds so raised the ld. AR appearing on behalf of the assessee has placed reliance on the written submission which is extracted herein below:-
"Fact of Case: In the above referred appeal assessee has purchased jointly an residential immovable land, Plot No. 1-V-33, Cornor, R.C.Vyas Colony, Bhilwara having measurement 237.5 Sq. yard has been allotted from UIT Bhilwara on 26.06.2013 of which total payment Rs. 6511000/- made by 30.07.2013 in which he is equally owner with his brother Shree NITIN KABRA and paid half portion of his share in plot is Rs. 3255500/- and balance Rs. 3255500/- paid by his brother and got registered in their both name.
The AO vide his order dated 22-02-2021 has not accepted the submissions and facts related to case and made the addition which is bad in law.
Thereafter assessee has made an appeal in CIT (Appeals), NFAC who had also vide its order dated 28.02.2023 dismiss the appeal against the assessee and kept demand standing which is against the provision of act and unwarranted. The CIT (Appeal) has erred in dismissing of appeal which is against the provision of Act and settled Case Laws in the matter hence the appeal.
Grounds of Appeal:
1. Each partner/owner of a joint property, their share only should be considered separately for deduction of TDS u/s 194-IA:
When there are more than 2 purchaser of a property whos value exceeds Rs. 50 lacs than, if individual share exceeds Rs. 50 Lacs than and then only provisions of Sec 194- IA applies i.e. not in a case when value of property exceeds Rs. 50Lacs. The CIT has mentioned that if property in aggregate M.T. Rs.50 Lacs than provisions of Sec 194- 1A will be applicable. This is misinterpretation of law language hence not correct therefore to be set aside.
Since when a property is purchased by more than two persons jointly and property value as per Sec. 194-IA exceed Rs. 50,00,000/- than buyer has to deduct 1% TDS and deposit the same in treasury. In joint property when therein exclusively division of property share in terms of percentage than the portion of concern person share represent the value of assets and when the percentage is not fixed than all are sharing equal portion in equal ration and if such portion exceeds Rs. 50/-Lacs than he/she should deduct and pay TDS.
In present case there are two person and value of share in property comes to Rs. 32,55,500/-in both land which is below Rs. 50/-Lacs hence as per the provision of Act and case law referred above which are identically apply in assessee case.
2. That the Ld. Commissioner (Appeals) had erred in law as well as in facts by sustaining the addition as an default in compliance of provision of Sec. -194A I and request your good self to set aside the same. / The CIT has dismissed the appeal by stating that:
"The threshold limit of Rs.50lakh is with reference to each property. If a property transaction involves more than one buyer, and share of each buyer in the property is less that Rs.50 lakh but the value of the property in aggregate is more that Rs.50 lakh then provisions of section 194-IA will be applicable. In such case, TDS will be I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 5 deducted and deposited by each buyer in respect of their respective share in the property. This is so because the provisions of subsection (2) of section 194-IA read: (2) No deduction under subsection (1) shall be made where the consideration for the transfer of an immovable property and the stamp duty value of such property, both, is less than fifty lakh rupees."
The assessee has referred following case laws which are relevant to the case, however not accepted the contains refer therein which is bad in law:
1. Vinod Soni vs. ITO Tds, Faridabad, ITA No. 2736/Del/2015, ITAT Delhi Bench 'B'.
2. Shree Shambhu Dayal Sarrad, Jaipur vs. ITO Ward-7(1), jaipur, ITAT Jaipur bench.
3. Smt. Sandhya Gugaliya-Jaipur vs. DCIT, CPC-TDS, Ghaziabad, UP by ITAT Jaipur Bench, Jaipur.
4. Smt. Sapna Sanjay Raisoni, Pune vs. ITO Ward-2(1), Pune, ITA No. 1267 to 1269/PN/2014.
5. M/s Oxcia Enterprises Pvt. Ltd. Vs. DCIT, Circle-TDS, Udaipur, ITAT Jodhpur under ITA No. 291/Jodh/2018.
6. The Desion of ITAT, Jodhpur in the identical case of Dalpat Singh Nanecha, Bhilwara vs ITO, Tds, Bhilwara (ITA. No. 245/JODH/2019 Assessment Year: 2015-
16) The identical case of Dalpat Singh Nanecha, Bhilwara vs ITO, Tds, Bhilwara is not considered wherein the Sales party is also UIT, Bhilwara and facts are identical to the assessee case. The gits of case are produced as under:
The appellant(Rajesh Kumar Nahar) has purchased a property jointly with his wife and two partners namely Dalpat Singh Nanecha and Reetu Devi Nanecha on 03.09.2014 from UIT, Bhilwara for a consideration of Rs. 1,26,00,000/-. It was submitted that the assessee was only a joint owner of the property so that total 4 partners and share of the property of each person is to the extent of % share equally in the property and consideration of the property in the hands of the each assessee was only Rs. 31,50,000/- which is less than Rs. 50 lacs, (Limit prescribed u/s 1941A for deduction of TDS) therefore, there was no requirement to deduct tax at source while making payment to UIT, Bhilwara. (Copy enclosed)
3. Pray:
In view of the above facts and circumstances it is requested to hear the appeal on merit and set aside the unwarranted addition. Kindly permits the assessee to agitate the aforesaid additional ground of Cross Objections and also to adduce additional evidences.Further the appellant craves leave to add, alter or amend any/all of the groundsof appeal before or during the course of the hearing of the appeal. The assessee on the basis of facts, documentary evidences and judicially pronounce decision of judicial authorities, request & pray to grant full relief to assessee."
6. The ld. AR of the assessee vehemently submitted that the case of the assessee is squarely covered by the decision of Coordinate Bench in the case of Dalpat Singh Nanecha, Bhilwara vs. ITO, TDS in ITA No. 245/Jodh/2019 dated I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 6 16.08.2021 and he relied in para 11 of the order of the Coordinate Bench. The ld. AR of the assessee also relied upon the written submission for each of the ground and the same reads as under:-
"1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE RESPONDENT HAS ERRED IN CONFIRMING THE DEMAND RAISED U/S 201(1) AND 201(1A) OF THE INCOME TAX ACT 1961 FOR NON-
DEDUCTION OF TAX UNDER SECTION 194-IA OF THE ACT.
1.1 The appellant, during the financial year 2013-14, along with his brother Shri Nitin Kumar Kabra jointly purchased an immovable property bearing Plot No. 1-V-33, R.C. Vyas Colony, Bhilwara worth Rs. 65,11,000 from UIT, Bhilwara on 30.07.2013 which was registered in the office of the Sub- Registrar Bhilwara. Both the buyers i.e., Sachin Kumar Kabra and Nitin Kumar Kabra have equal share in the immovable property purchased i.e.. 32,55,500 each/-.
1.2 Going forward, based on the information available with the income tax Department, Learned Income Tax Officer (TDS), Bhilwara issued the Show cause notice u/s 201(1)/201(1A) dated 19.01.2017 and 27.12.2018 to the appellant for non- deduction of tax at source at the time of purchase of an immovable property of more than Rs. 50 lacs as per the provisions of section 194-IA of the Act. The then Authorized representative of the appellant filed the written submission in response to the show cause notice. In the written submission of appellant AR, it was submitted that the provisions of the section 194-IA of the Income Tax Act 1961 is not applicable in the instant case since the appellant has paid only Rs. 33,55,500/- as his share of consideration of the immovable property to the transferor i.e., UIT Bhilwara which is below the threshold limit of Rs. 50 Lacs as per the section 194-IA (2) of the Act. However, the ITO (TDS) Bhilwara has rejected the contention of the appellant and passed the order by treating the appellant as "Assessee in default" in terms of the provisions of section 201(1) of the Act for not deducting the tax at source as required u/s 194-IA of the Act on his share of Rs. 32,55,500/- (1/2 share of Rs. 65,11,000/-) and u/s 201(1A) of the Act for liable to pay simple interest on tax liability of Rs. 32,555/-.
1.3 Being aggrieved from the order of ITO (TDS) Bhilwara, the appellant has preferred an appeal before the respondent and respondent rejected the appeal by stating that "The threshold Limit of Rs. 50 Lacs is with reference to each property, if a property transaction involves more than one buyer, and share of each buyer in the property is less than Rs. 50 Lacs but the value of the property in aggregate is more than Rs. 50 Lacs then provisions of Section 194-IA will be applicable due to subsection (2) of Section 194-IA of the Act. Here it is pertinent to mention that the respondent while rejecting the appeal of the appellant has failed to appreciate the provisions of the section 194-IA of the Income tax Act 1961. The respondent I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 7 interpreted the applicability of the provisions of section 194-IA with reference to each property whereas it is applicable to any person who is transferee to the immovable property. The Provisions of section 194-IA of the income tax Act 1961 decides the taxability for non-deduction of tax with reference to the assessee and not to each property. Hence the basis of rejecting the appeal is completely baseless in the eyes of law.
1.4 At this outset, we wish to submit the provisions of section 194-IA of the income tax Act 1961, which is reproduced verbatim as under:
[Payment on transfer of certain immovable property other than agricultural land). 194-IA (1) Any person, being a transferee, responsible for paying (other than the person referred to in section 194LA) to a resident transferor any sum by way of consideration for transfer of any immovable property (other than agricultural land), shall, at the time of credit of such sum to the account of the transferor or at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one per cent of such sum as income- tax thereon.
(2) No deduction under sub-section (1) shall be made where the consideration for the transfer of an immovable property is less than fifty lakh rupees. (3) The provisions of section 203A shall not apply to a person required to deduct tax in accordance with the provisions of this section.
Explanation. -For the purposes of this section, - (a) "agricultural land" means agricultural land in India, not being a land situate in any area referred to in items (a) and (b) of sub-clause (iii) of clause (14) of section 2;
(b) "immovable property" means any land (other than agricultural land) or any building or part of a building.
From the perusal and plain reading of the above provision of section 194- IA of the Income tax Act 1961, it is very clear and settled law of the position that for deducting tax at source on transfer of immovable property other than agricultural land, three conditions must be satisfied which are reproduced as under
a) Consideration for transfer should be paid by any person "being a transferee". Here the Act does not used the word transferee(s)
b) Consideration for transfer should be paid to resident transferor.
c) No deduction of tax shall be made where the consideration for transfer of an immovable property is less than Rs. Fifty lacs.
In the present case, the appellant has satisfied all the three conditions of the provisions of the section 194-IA of the Act.
1. Appellant i.e., Shri Sachin Kumar Kabra is resident Indian having Individual PAN holder being a person as defined in section 2(31) of the income tax Act 1961 and Joint transferee along with his Brother Shri Nitin Kumar Kabra and same fact has been admitted by the ITO (TDS) Bhilwara and uphold by the respondent in their respective orders wherein it is admitted fact that the consideration paid by Shri Sachin Kumar Kabra is Rs. 32,55,500/- only being his half share of the total consideration of the I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 8 property purchased which is 65,11,000/-. Hence when the provision is read as a whole, it gives an infallible impression that obligation cast under Section 1941A is qua each transferee and not qua the aggregate consideration.
2. Consideration for transfer should be paid to resident transferor and same is paid to the UIT Bhilwara which is A Local Authority as per section 2(31) of the income tax Act 1961.
3. No deduction of tax shall be made where the consideration for transfer of an immovable property is less than Rs. Fifty lacs. In the Instant case, appellant has paid only Rs. 32,55,500 which is below the threshold limit as provided in the section 194- IA (2) of the income tax Act 1961.
Since the appellant has satisfied all the above conditions of the provisions of the law for non-deduction of tax under section 194-IA of the Act, the order passed by ITO(TDS) Bhilwara and upholds by respondent is completely baseless and not tenable in the eyes of the laws.
1.5 Going Forward, we submitted that the various Hon'ble ITAT's and Jurisdictional ITAT -Jodhpur has held the same view in the case of DALPAT SING NANECHA, BHILWARA vs ITO (TDS), Bhilwara in ITA/245/JODH/2019 wherein the bench has held that "After perusing the Paper Book and the relevant provisions of law, we find that Section 194-IA(2) provides that Section 194- IA(1) will not applicable where the consideration for transfer of immovable property is less than Rs. 50,00,000/-. However, section 194-IA(1) is applicable on any person being a transferee, so section 194-1A(2) is also, obviously, applicable only w.r.t. the amount related to each transferee and not with reference to the amount as per sale deed. In the instant case there are 04 separate transferees and the sale consideration w.r.t. each transferee is Rs. 37,50,000/-, hence, less than Rs. 50,00,000/- each. Each transferee is a separate income tax entity therefore, the law has to be applied with reference to each transferee as an individual transferee / person. It is also noted that Section 194-IA was introduced by Finance Act, 2013 effective from 1.6.2013. It is also noted from the Memorandum explaining the provisions brought out alongwith the Finance Bill wherein it was stated that "in order to reduce the compliance burden on the small tax payers, it is further proposed that no deduction of tax under this provision shall be made where the total amount of consideration for the transfer of an immovable property is less than fifty lakhs rupees. We further find that the main reason by the AO is that the amount as per sale deed is Rs. 1,50,00,000/-. The law cannot be interpreted and applied differently for the same transaction, if carried out in different ways. The point to be made is that, the law cannot be read as that in case of four separate purchase deed for four persons separately, Section 194-LA was not applicable, and in case of a single purchase deed for four persons Section 194-IA will be applicable. It is noted that AO has passed a common order u/s. 201(1) for all the four transferees. In order to justify his action since in case of separate orders for each transferee separately, apparently. provisions of section 1941A could not had been I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 9 made applicable since in each case purchase consideration is only Rs. 37,50,000/- This action of AO shows that he was also clear in his mind that with reference to each transferee, Section 1941A was not applicable. Hence, we are of the considered view that the addition made by the AO and confirmed by the Ld. CIT(A) is not sustainable in the eyes of law, thus the same is deleted. As far as issue of charging interest is concerned, the same is consequential in nature, hence, need not be adjudicated." Further in the case of REETU DEVI NANECHA vs. INCOME TAX OFFICER (JODH-Trib.) (2023) 115 TLC 371 ITA No. 118/Jd/2021, the jurisdictional Hon'ble ITAT - Jodhpur has held that We have heard the rival contentions and perused the materials placed on record. We notice that the assessee is an individual and as per facts of the case narrated before us and not disputed by the Revenue authority, find that the assessee along with 3 other persons purchased an immovable property for a consideration of Rs. 1.20 crores on 3rd Sept., 2014. The assessee paid 1/4th share of sale consideration i.e., Rs. 31.50 lacs. The AO treated the assessee in default applying the provisions of s. 194-IA of the Act by considering the purchase cost of Rs. 1.20 crores. We notice that the provisions of s. 194-1A of the Act are applicable where consideration for transfer of an immovable property is more than Rs. 50 lacs. Since in the instant case, the consideration paid by the assessee is Rs. 31.50 lacs, therefore, the provisions of s. 194-IA of the Act cannot be invoked. Thus, we fail to find any merit in the findings of the learned CIT(A) and the same are set aside and the demand raised by the AO under s. 201(1) for non-deduction of tax Rs. 31,500 and interest levied under s. 201(1A) at Rs. 16,380 is deleted. The effective issue in ground No. 1 as raised by the assessee is allowed In the case of Shamim Irshad, New Delhi, Vs ITO Ward -77(2) New Delhi. I.T.A. No.8740/DEL/2019, The Hon'ble Delhi ITAT held that 7.2 From the text and tenor of provisions of Section 1941A, it is evident that the obligation under Section 1941A relates to a transferee responsible for paying to a resident transferor any sum by way of consideration for transfer of immovable property. Secondly, obligation to deduct tax arises at the time of credit of such sum to the account of the transferor or at the time of payment of such sum to the transferor. Thus, two factors co-exist for applicability of Section 1941A. The first factor, as noted above, relates to the obligation of the transferee and the second factor fixes obligation to deduct tax at the time of credit or payment. When read combinedly; while the first limb of Section 1941A refers to a singular expression, i.e., 'transferee' (in distinction to transferee(s) combined), second limb provides for time of discharge of obligation which in turn, depends on the action of each transferee (in exclusion to other transferee) i.e., either credit in its accounts or actual payment. Thus, when the provision is read as a whole, it gives an infallible impression that obligation cast under Section 1941A is qua each transferee and not qua the aggregate consideration. The reasons are not far to seek. It will not be practicable to achieve the requirement of second limb if the case of the Revenue is accepted that it is qua total consideration I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 10 involved and not each transferee. The obligation cast under Section 1941A arises to a particular transferee at the time of payment of consideration or at the time of credit in its own accounts.
7.3 The law cannot be read to expect one transferee to deduct TDS on behalf of other transferee at the time action taken by him towards payment or credit. If the contentions of the Revenue are accepted that vicarious liability imposed under Section 1941A is linked to the value of the property, an anomalous and unintended situation will arise for deduction of TDS. The contention of the assessee that Section 1941A operates qua each transferee and not qua total consideration is in absolute congruence with the schematic interpretation of Section 1941A of the Act.
8. On facts, the assessee in the instant case has admittedly paid Rs. 40 lakhs which is below threshold limit provided to trigger the obligation provided in Section 1941A of the Act. Hence, Section 194IA has no application where a transferee in question has neither credited nor paid consideration for transfer of immovable property in excess of threshold limit of Rs. 50 lakhs.
9. We thus find merit in the plea raised on behalf of the assessee for holding the assessee to be not an assessee in default for the purposes of Section 201/201(1A) of the Act. Hence, we reverse and cancel the liability demand raised under Section 201(1) r.w. Section 201(1A) of the Act in the absence of any default commit ted with reference to Sect ion 1941A of the Act.
From the above-mentioned facts of the case and various judgements, it is clearly evident that the provisions of section 194-IA are not applicable in the instant case and invoking of provisions of 194-IA of the income tax Act 1961 by the ITO(TDS) Bhilwara and upholds by the respondent is not justified in the eyes of the law & hence be quashed at your end."
7. Per contra, the ld. DR vehemently argued that the assessee is misrepresenting the provisions of Section 194-IA as the property exceeding Rs.
50,00,000/- amount, the provisions of the Act is to be read qua property amount and not the threshold of each assessee. Considering that facet of the matter the assessee failed to deduct tax as the consideration of the property is exceeding is Rs. 50,00,000/-. Based on the above arguments the ld. DR supported the orders of the lower authorities.
I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 11
8. We have heard the rival contentions, perused the material placed on record and gone through the judicial precedent cited by both the parties to drive home their respective contentions. It is not disputed that the assessee has purchased the land along with his brother from UIT, Bhilwara and if consideration of the property is divided between two assessee then the consideration qua assessee is below Rs. 50,00,000/-. The provision of the section 194-IA on this aspect is required to be seen to decide the issue on hand:-
Payment on transfer of certain immovable property other than agricultural land25.
194-IA. (1) Any person, being a transferee, responsible for paying (other than the person referred to in section 194LA) to a resident transferor any sum by way of consideration for transfer of any immovable property (other than agricultural land), shall, at the time of credit of such sum to the account of the transferor or at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one per cent of such sum 26[or the stamp duty value of such property, whichever is higher,] as income-tax thereon.
(2) No deduction under sub-section (1) shall be made where the consideration for the transfer of an 26a[immovable property and the stamp duty value of such property, are both,] less than fifty lakh rupees.
(3) The provisions of section 203A shall not apply to a person required to deduct tax in accordance with the provisions of this section.
Explanation.--For the purposes of this section,--
(a) "agricultural land" means agricultural land in India, not being a land situate in any area referred to in items (a) and (b) of sub-clause (iii) of clause (14) of section 2; (aa) "consideration for transfer of any immovable property" shall include all charges of the nature of club membership fee, car parking fee, electricity or water facility fee, maintenance fee, advance fee or any other charges of similar nature, which are incidental to transfer of the immovable property;
(b) "immovable property" means any land (other than agricultural land) or any building or part of a building;27
[(c) "stamp duty value" shall have the same meaning as assigned to it in clause (f) of the Explanation to clause (vii) of sub-section (2) of section 56.] I.T.A. No.107/Jodh/2023 Sachin Kumar Kaabra 12 Considering the above provisions of the Act and respectfully following the Coordinate Bench decision in the cases of Dalpat Singh Nanecha, Bhilwara vs. ITO (supra) the case of the assessee is fully covered by the decision of this Bench and the relevant finding of the bench on this aspect of the matter is reiterated herein below :
"11. Heard both the parties and purused the material available on record. Admittedly and undisputedly, the assessee is responsible for paying Rs 31,50,000/- being the consideration for his 1/4th share in the immoveable property and has actually paid Rs 31,50,000/- only, therefore, following our findings and directions contained in ITA No. 245/JODH/2019, there was no requirement to deduct tax at source in terms of section 194IA of the Act. The assessee cannot be held as assessee in default on account of non-deduction of tax u/s 194IA of the Act and therefore, the demand of Rs. 31,500/- and Rs. 16,380/- U/s 201(1) and 201(IA) of the Act is hereby set aside."
Respectfully following the above decision of the Coordinate Bench, we direct the ld. AO to delete the alleged demand for TDS liability fastened upon the assessee under the provisions of Section 194-IA.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on. 23/ 01/2024
Sd/- Sd/-
(Rathod Kamlesh Jayantbhai) (DR. S. Seethalakshmi)
Accountant Member Judicial Member
Santosh
(On Tour)
Copy of the order forwarded to:
(1)The Appellant
I.T.A. No.107/Jodh/2023
Sachin Kumar Kaabra 13
(2) The Respondent
(3) The CIT
(4) The CIT (Appeals)
(5) The DR, I.T.A.T.
True Copy
By order
I.T.A. No.107/Jodh/2023
Sachin Kumar Kaabra 14
Date Initia
l
1. Draft dictated on 22.01.24 Sr.PS/
PS
2. Draft placed before author 23.01.24 Sr.PS/
PS
3. Draft proposed & placed JM/A
before the Second Member M
4. Draft discussed/approved by JM/A
Second Member M
5. Approved Draft comes to Sr.PS/
the Sr. P.S./P.S. PS
6. Kept for pronouncement on Sr.PS/
PS
7. File sent to the Bench Clerk Sr.PS/
PS
8. Date on which file goes to
the Head Clerk
9. Date on which file goes to
the AR
10. Date of dispatch of Order
B