Section 40(a)(ia) cannot be read in isolation but must be read along with its proviso and when it is read in that manner, there would be no scope to hold that there will be any harsh treatment meted out to any assessee in the matter of dis-allowance of any expenditure validly made by them.
CASE LAW DETAILS
Decided by: HIGH COURT OF MADRAS, In The case of: Tube Investments of India Ltd. v. ACIT, Appeal No.: Writ Petition Nos.33766 of 2007, 1106, 1107, 1690, 1691, 2478, 2479, 3330, 3331, 4782, 5109, 5110, 28097, 1056, 1057, 1717, 1718, 2013, 2014 & 9142 of 2008, 10750 & 10751 of 2009, Decided on: September 29, 2009
47. As the challenge in all these writ petitions is to the vires of Section 40(a)(ia) of the Act, it will be appropriate to extract the provision as it stood as on the date of the challenge:
“Section 40. Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head “Profits and gains of business or profession-
(a) in the case of an assessee-
(ia) any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply or labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section (1) of section 200:
Provided that where in respect of any such sum, tax has been deducted in any subsequent year or, has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under sub-section (1) of section 200, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.
Explanation. -For the purposes of this sub-clause,-
(i) “commissioner or brokerage” shall have the same meaning as in clause (i) of the Explanation to section 194H;
(ii) “fees for technical services” shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9;
(iii) “professional services” shall have the same meaning as in clause(a) of the Explanation to section 194J;
(iv) “work” shall have the same meaning as in Explanation III to section 194C;
(v) “rent” shall have the same meaning as in clause (i) to the Explanation to section 194I;
(vi) “royalty” shall have the same meaning as in Explanation 2 to clause (vi) of sub-section (1) of section 9.”
59. When we test the above submissions in the anvil of the provisions contained in Chapter XVII-B, vis-a-vis Section 40(a)(ia), we notice that under Section 194C the provision which is relating to TDS in regard to payment to contractors and sub-contractors, it is stipulated that at the time of credit of such payment to the accounts of the contractor or at the time of payment in cash or by cheque or by any other mode, in respect of contractors, 2% deduction from such payment is to be made. As per the Rules, such deduction once made should be deposited to the accounts of the State within one week from the last date of the month in which deduction is made and in respect of the month of March, before the submission of returns of that accounting year.
60. The contention of the learned counsel is that under Section 40(a)(ia) either due to the failure to deduct as stipulated under Section 194C or after deduction if not paid as provided under the relevant rules, the draconic effect of disallowance to the whole of the expenditure is so harsh that it will have to be held to be highly arbitrary and unreasonable and in violation of Article 14. Stretching the argument a little further, we find that the argument does not proceed on the footing that any severe hurdle created in regard to the compliance of the procedure prescribed in respect of the various deductions to be made under Chapter XVII-B. On the other hand, if and when a default is committed in complying with the provisions, whether the assessee should be meted out with such a harsh treatment of disallowance of the entirety of the expenditure, in spite of the fact that such expenditure was really incurred.
61. When we consider the said submission, we find that there is no demur in so far as the various procedure prescribed for making the deduction at source as prescribed under Chapter XVII-B. Therefore, it has now come to stay that the provisions contained under Chapter XVII-B is one form of recovery of tax by way of TDS at the point where the payment is made or credited to a third party. It is also true that in the event of failure to deduct or pay as prescribed in the said Chapter, Section 201 automatically comes into play, by which, the person who is obligated upon to make the deduction himself will be deemed to be an assessee in default in respect of such deduction which is liable to deduction at source. The proviso to the said Section however makes the said provision less rigourous by stating that the Assessing Officer if satisfied with such persons with good and sufficient reasons failed to deduct and pay, no penalty as could be levied under Section 221 need be charged. The said provision at best would only relate to the amount of tax that could be deducted by way of TDS as compared to Section 40(a)(ia) which would result in the disallowance of whole of the expenditure and thereby the entire sum expended would attract the levy of tax at a prescribed rate with all other conditions such as surcharge etc.,
62. In this context when we examine the object for the introduction of the impugned provision, the Finance Bill No.2 of 2004 states that the insertion of such clause (ia) in clause (a) to Section 40 of the Act was with a view to augment compliance of TDS provisions. While we are on that, it will be also useful to refer to the statistics placed before us by the learned standing counsel for the Department which discloses that the TDS collection had really augmented the revenue. Amongst various components such as Advance Tax, Surcharge etc., which constituted total gross collection of Rs.2,75,857. 7 crores in the financial year 2008-09, the TDS component alone constituted a sum of Rs.1,30,470. 8/- crores. Apparently, it only shows that the introduction of Section 40(a)(ia) had its own consequential effect and it only proves that the objective was achieved to substantial extent viz., augmentation of TDS was fairly achieved.
63. To counter the various submissions made on behalf of the petitioners, it was also contended on behalf of the Revenue that such a disallowance as provided under Section 40(a)(ia) is not a new phenomenon, but an identical provision was existing and was working well for more than two decades which is now made as Section 40(a)(i) in so far as it relates to a non-resident. In other words, the contention is that in regard to a non-resident, such a stringent provision was in the Statute Book and was unquestionably working for more than two decades. It was therefore contended that a similar provision in regard to a resident payee, cannot be held to be so grossly unreasonable or arbitrary as alleged by the petitioners. The said submissions of the Revenue commends acceptance. As between Section 40(a)(i) and 40(a)(ia), the only difference is while the former relates to a non-resident, the later concerns a resident. After all the purport of imposing such a restriction was to augment the system of TDS.
64. As rightly contended by the learned standing counsel for the Revenue when the provisions and procedures relating to TDS are scrupulously applied, first and foremost it ensures the identification of the payees and thereby network of assesses gets confirmed. When once such identity of assesses who are in receipt of the income can be ascertained, it will enable tax collection machinery to bring within its fold all such persons who are liable to come within the network of tax payers.
65. In fact in the submission of the Department, it was pointed out that normally TDS is to be deposited to the Government Accounts by the 7th of the following month and if any delay is caused beyond that, Section 201 would come into operation and thereby interest would become payable. It was also stated that Section 40(a)(ia) grants time till 31st March next following and that any tax deducted in April of that year can be paid into the Government accounts on 31st March of the subsequent year to avail the deduction while the deduction to be made in March of that year could be paid in the Government accounts before the end of September of the subsequent year and thereby sufficient time is available to correct any errors in tax deduction during the year.
66. One other contention of the learned counsel appearing for the petitioners was that going by the specific provision contained under Section 194C, where it stipulate that the deduction is to be made at the point of either credit or payment, in the event of any default in compliance with the said provision, Section 40(a)(ia) would immediately come into play. Such a submission of the learned counsel appearing for the petitioners, in our opinion is taken care of by virtue of the stipulations contained under Section 200 read along with Rule 30 of the Income Tax Rules. It is rightly pointed out by the learned standing counsel appearing for the Revenue that sufficient time is provided for depositing the deducted amount into the coffers of the State. When such procedures in the matter of making the TDS and in depositing such deducted amount is provided under Chapter XVII-B, it is difficult to hold that implication of Section 40(a)(ia) works out harshly or can be held to be arbitrary or unreasonable. Therefore on the one hand in respect of non-resident when an identical provision has been successfully working without any challenge for more than two decades, there is no reason why a similar provision in respect of a resident should be held to be arbitrary or unreasonable. Equally the contention based on Section 194C that it stipulates deduction at the point of payment and therefore Section 40(a)(ia) would cause hardship and consequently should be held as unreasonable and arbitrary cannot be accepted. In fact, the submission of discrimination cannot also stand when we find that a resident or non-resident has now been brought on par when it comes to the question of disallowance while committing default in the compliance of TDS.
67. One other argument made on behalf of the petitioners is that when under Chapter XVII-B stringent provisions have been made for imposing penalty, interest etc., for committing any default in making the TDS, creating a disallowance of the entirety of the expenses should be held to be arbitrary or unreasonable and violate Articles 14 and 19(1)(g) of the Constitution. As far as the said submission is concerned, with reference to a provision contained in Chapter XVII-B, the relevant Sections are 199, 201 and 221. Section 199 states that all taxes made in accordance with the provisions of that Chapter and paid to the Central Government to be treated as payment of tax on behalf of the persons on whose income the deduction is made. Section 200 prescribes the period within which the deducted amount should be paid to the Government. Section 201 talks of the consequence of failure to deduct or pay, in which event, the payer by virtue of the default could be deemed to be an assessee in default of the TDS amount and nothing more. As far as the implication of Section 221 is concerned, by virtue of the deemed to be an assessee as provided under Section 201, the scope for imposition of penalty is provided. As is the usual stipulations, Section 221 creates an obligation on the Authority to give necessary opportunity etc., before imposing any penalty. Further under the proviso to Section 201, it is specifically provided that if the payer satisfies the Assessing Officer, the failure to make the deduction or payment was for good and sufficient reasons no penalty need be imposed.
68. All the above consequence are all related and restricted to the amount of TDS to be deducted under Chapter XVII-B. The purport and intent of the above said provision are only to ensure that in the event of any default in making the deduction, the required amount to be deducted is ultimately collected. As compared to those provisions, the legislative intent of the introduction of Section 40(a)(ia) is in the larger perspective of augmenting the very TDS provisions themselves. It is not merely related to the collection of TDS alone. In this context, it will be appropriate to refer to one of the submission of the learned standing counsel for the Revenue that only about 3% of the Returns filed are taken up for scrutiny, in view of the fact that the Act and administration have been moving towards self-assessment. In other words, reposing higher amount of confidence in the law abiding citizens that they would voluntarily come forward to pay the tax as a Honourable Citizen, scrutiny is stated to have been limited to 3% of the Returns. Having regard to such a notable advancement in the revenue administration, it cannot be said that the objective sought to be achieved viz., augmentation of TDS provisions by bringing out a stringent provision in the form of Section 40(a)(i) or 40(a)(ia) can be said to be draconic or highly excessive in its approach. Here again, the resultant position in the TDS recoveries for the year 2008-09 discloses that the objective sought to be achieved has been successfully realized by the introduction of Section 40(a)(ia). Therefore, the submission made on that footing also does not inspire us to hold that the provision should be held to be unreasonable or arbitrary and in violation of Article 14 of the Constitution.
69. For the same reason, the contention that it is in violation of Article 265 of the Constitution is also liable to be rejected. The contention here is also on the footing that by sheer accounting adjustment or mechanism of non-deduction of expenses a disguised taxation or levy is camouflaged in terms of Section 40(a)(ia) therefore in the guise of recovery, no tax can be levied. The contention fails to take note of the salient feature of the proviso which runs along with the substantive provision of Section 40(a)(ia). The intention of the Legislature is not to tax the payer ‘X’ for its failure to deduct the tax at source. The object of introduction of Section 40(a)(i) as well as Section 40(a)(ia) is to ensure that one of the modes of recovery as provided in Chapter XVII-B is scrupulously implemented without any default, in order to augment the said mode of recovery. As has been considered and explained in the earlier paragraphs, such an objective is stated to have been achieved to a greater extent after the introduction of Section 40(a)(ia). With the proviso to Section 40(a)(ia) the deduction in the subsequent year by rectifying the default committed in the matter of TDS in the previous year, a defaulting assessee cannot be heard to say that irrespective of the deliberate default committed by it in implementing the provision relating to TDS, it should be held that a higher tax liability is mulcted on it. In other words, when there is a provision inbuilt in the impugned Section itself providing for rectification of any default and thereby restore the financial implications suffered, it will have to be held that by virtue of such a procedural safeguard provided in the provision, it would be well within the Legislative competence of the Parliament in having set out a provision as contained in Section 40(a)(ia) of the Act.
70. One other submission made is on the ground that the provision seeks to tax the income of the payee in the hands of the payer and therefore it imposes an arbitrary and unreasonable restriction. According to the learned counsel for the petitioners while under Chapter XVII-B, the TDS is only to the prescribed percentage of the payment to be made to the payee by the payer, the consequence of default in compliance of TDS would result in entirety of the payment to the payee subjected to tax. It is therefore contended that while on the one hand the payer parts with the entire amount of the payee while at the same time for the said payment already made a further sum at 30% of that amount plus 5% surcharge and other liabilities are imposed which is highly excessive and it will have to be held to be unauthorized as stipulated under Article 265 of the Constitution. When we consider the said submission, as rightly pointed out by the learned standing counsel for the revenue, proviso to Section 40(a)(ia) will have to be read along with the main provision. Under the proviso to Section 40(a)(ia), the assessee is entitled for claiming the deduction in the event of a defaulted payment is made good in any subsequent year. The provision however makes it clear that such deduction are allowed in computing the income of the previous year in which such tax has been paid. If the proviso is read along with Section 40(a)(ia) there can be no dispute that the assessee who committed any default in complying with Chapter XVII-B of the Act is not left high and dry. The proviso provides a remedial measure and thereby enable the assessee to claim for deduction either in the immediate subsequent year or in any other subsequent year to the relevant year in which the default came to be committed. The learned counsel attempted to point out that proviso cannot be said to cover all the situations of default, in as much as, the TDS has to be made at the point of payment either by way of credit or by way of direct payment and there is no specific provision contained in the proviso to cover such situation. In other words, the contention is that while under Chapter XVII-B the deduction can be made only at the point of payment and in the event of default being committed, there would be no scope for the payer to make any deduction at any later point of time, the proviso will be really unworkable.
71. While meeting the said argument, the learned standing counsel pointed out that such a contention is far fetched in as much as a reading of Section 201 makes it clear that the default in respect of TDS would not only cover failure to deduct or after deduction failure to pay, but even failure to pay on its own thus covering default in all situations. The learned standing counsel for the Revenue therefore contended that the proviso will not only come to the rescue for those who failed to pay after deduction but to also those who though not made any deduction were prepared to make the payment on their own and thereby rectify the defect who can validly take umbrage under the proviso and consequently claim the benefit of allowance in the subsequent year. The submission of the learned standing counsel is in consonance with what is stipulated in the proviso and therefore there is every justification in accepting the said submission. When the said submission can be validly accepted, it will have to be held that the effect or the rigour of restriction of disallowance made under Section 40(a)(ia) can be rectified by the assessee himself by resorting to the benefits contained in the proviso to that Section. Therefore, when Section 40(a)(ia) is read along with its proviso, there is no scope to hold that the said provision is so very harsh or creates any insurmountable situation for the assessee to claim the deduction of expenditure actually made. We therefore hold that Section 40(a)(ia) cannot be read in isolation but must be read along with its proviso and when it is read in that manner, there would be no scope to hold that there will be any harsh treatment meted out to any assessee in the matter of disallowance of any expenditure validly made by them.
72. Yet another argument made on behalf of the petitioners was that the impugned Section seeks to deduct the income of the payee in the hands of the payer. The argument is on the footing that by virtue of the disallowance provided under Section 40(a)(ia) the entirety of the expense incurred by way of payment to a third party is disallowed on which the assessees failed to deduct TDS but even the income which has been received by a third party is treated as the income of the assessee. To counter such an argument on the side of the Revenue, reference was made to similar such disallowance provided under Section 37, 40, 40A and 43B. It would be sufficient if we make reference to Section 40A(4) and 43B. Section 40A provides for certain expenses not deductible under certain circumstances. One such circumstance is provided under Section 40A(4). Under the said provision, in respect of payments made over and above 10,000/-, if such payment is not made by way of crossed cheque it is bound to be disallowed. The said provision however provides certain explainable situations where such disallowance can be rectified. Such extraordinary situations apart, if going by Section 40A(4) the payment made beyond the permissible limit otherwise than by way of crossed cheque which results in the disallowance of the payment, the consequence would be irrespective of the payment having been already made to a third party, the assessee will be subjected to payment of tax on the very same sum. Whatever be the purport of the Legislation in creating such a disallowance under Section 40A(4), the fact remains that the payment made to a third party which in other words an income of a third party is sought to be taxed at the hands of the assessee. Nevertheless such a statutory imposition of liability is not frowned upon. Therefore, it is not as if Section 40(a)(ia) alone create such a situation where a third party’s income is sought to be taxed at the hands of the assessee.
73. Similarly Section 43B provides for certain deductions only on actual payments. In fact the learned standing counsel for the Revenue brought to our notice the challenge made to Section 43B in respect of assessees who followed mercantile system of accounting where the actual payment would be on a later date while a provision is made in the books of accounts on accural basis. The learned standing counsel relied upon a Division Bench decision of the Andhra Pradesh High Court reported in (1988) 173 ITR 708 (S.Subba Rao & Co. Vs. Union of India). At page 714 the Division Bench rejected the contention by holding as under:
“…..The taxes and duties collected but remaining unpaid to the Government on account of orders of stay, etc., were claimed as a deduction for income-tax purposes setting up an attractive plea that the accounts are made up on mercantile system and , consequently, the disputed taxes and duties constituted legitimate deductions as the liability to pay the same was incurred in the accounting years concerned, albeit the amounts were not actually paid. The Revenue was told that in a system of mercantile accounting, actual payment is unnecessary and the profits and gains under the head “Profits and gains of business or profession” would have, therefore, to be computed deducting these taxes and duties. Thus, on the one hand, the businessmen had free use of the funds collected from the public by way of taxes for the ostensible purpose of making them over to the public exchequer and at the same time secured tax reliefs without paying the same. The provisions of law, as they stood at the relevant time, could not remedy the situation and the result was that “taxes and duties” aggregating to thousands of crores of rupees lay in the hands of the tax payers while the Government was reeling under the pressure of finding moneys to discharge commitments. That was the alarming situation when the Legislature felt concerned to find a remedy to the problem. The result was that section 43B was inserted in the Act which has the effect of compelling the assessees to pay the disputed taxes which they had otherwise collected from the consuming public, if they wanted such amounts to be deducted by way of expenses. The Legislature did not act unreasonably in making a wholesome change that all expenses incurred by an assessee maintaining accounts under the mercantile system would not be deducted unless the expenditure was actually paid out. In choosing only the statutory liabilities by way of taxes and duties for a special treatment under section 43B, the Legislature had shown awareness of the growing incidence of public funds being caught up in the hands of the business community. It was for this reason that “taxes and duties” were chosen for a special treatment and we do not see any hostile discrimination or arbitrariness violating article 14 in the Legislature so acting.” (Emphasis added)
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