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03-09-2019, Mynah Industries, Section 194A, 194C, 194-I, Tribunal Chennai

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1 week 1 day ago #10718 by amit
Section - 194A, 194C, 194-I, 194J, 201(1), 56(2)(viib)
Order Date - 03-09-2019
Favouring - Allowed for statistical purposes
Court - Tribunal Chennai
Appellant - Mynah Industries Ltd.
Respondent - ITO
Justice - N.R.S. GANESAN JM & INTURI RAMA RAO AM
Citation - 919Taxpundit47
Appeal No. - ITA Nos.2433, 2434, 2435, 2436 & 2437/Chny/2018
Asstt. Year - 2014-15, 2015-16, 2014-15, 2012-13 & 2011-12

Order

PER : N.R S GANESAN

All the appeals of the assessee are directed against the respective orders of the Commissioner of Income Tax (Appeals), Salem. Since common issue arises for consideration in all these appeals, we heard these appeals together and disposing the same by this common order.

2. There was a delay of 117 days in filing these appeals by the assessee. The assessee has filed petitions for condonation of delay. We find that there was sufficient cause for not filing these appeals before the stipulated time. Therefore, we condone the delay and admit the appeals.

3. Since the assessee did not appear before this Tribunal even after taking note of the date of hearing by making endorsement in the appeal folder, we heard the Ld. Departmental Representative and proceeded to dispose of the appeals on merit.

4. I.T.A. Nos.2433 & 2434/Chny/2018 relate to levy of interest for non-deduction of tax. Shri V.M. Mahidar, the Ld. Departmental Representative, submi ted that the assessee has not deducted tax as required under Section 194A and 194C, 194-I and 194J of the Income-tax Act, 1961 (in short 'the Act'). According to the Ld. D.R., the Assessing Officer levied interest under Section 201(1)/201(1A) of the Act. The non-deduction of tax makes the assessee to pay not only interest but also the tax due. Hence, according to the Ld. D.R., the CIT(Appeals) has rightly confirmed the order of the Assessing Officer.

5. We heard the Ld. D.R. and also carefully gone through the grounds of appeal raised by the assessee before this Tribunal. The case of the assessee appears to be that the recipient of the amount paid tax. However, it is not clear whether the recipient has paid the taxes. If the assessee failed to deduct tax as required under the statutory provision, the assessee has to be treated as assessee in default and the assessee is liable to pay not only tax but also interest. But, the interest component shall be restricted to the date of payment tax either by the assessee or by the recipient. Since the assessee claims that the recipient has paid the taxes, and the date of actual payment is not clear from the material available on record, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, orders of both the authorities below are set aside and the entire issue of levy of interest under Section 201(1)/201(1A) of the Act is remitted back to the file of the Assessing Officer. The Assessing Officer shall reexamine the issue and bring on record the actual date on which the recipient has paid the taxes and thereafter determine the interest payable by the assessee till the date of payment of taxes by the recipient to the Government.

6. With the above observation, orders of both the authorities below are set aside and the issue is remitted back to the file of the Assessing Officer.

7. Now coming to assessment year 2014-15 in I.T.A. No.2435/Chny/2018. The first issue arises for consideration is addition made under Section 56(2)(viib) of the Act towards share premium.

8. Shri V.M. Mahidar, the Ld. D.R., submitted that the assessee has received large amount of share premium to the extent of ₹45,61,32,384/-. The Assessing Officer found that the assessee has received share premium in excess of fair market value. Therefore, according to the Ld. D.R., the excess amount has to be taxed under the head “other sources”. On a query from the Bench how the shares were valued by the assessee and the Assessing Officer? The Ld. D.R. pointed out that the assessee itself worked out the fair market value of the shares at ₹32.34 per share. The face value is ₹10/- per share. However, the assessee allotted the share at a premium of ₹48.63 per share which is more than the fair market value of the shares as estimated by the assessee itself. Therefore, the Assessing Officer adopted the fair market value at

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