Facts of the Case

The assessee companies were engaged in the business of real estate development including residential flats and commercial spaces. Information was received by the Income Tax Department indicating that the assessees had made payments to the Haryana Urban Development Authority (HUDA) towards External Development Charges (EDC) on behalf of certain entities.

During verification of compliance with Tax Deducted at Source (TDS) provisions, it was observed that payments aggregating to ₹1,62,52,000 were made to HUDA without deduction of TDS. The Assessing Officer issued a show cause notice asking the assessee to explain why such payments should not be treated as payments in the nature of rent requiring deduction of tax under Section 194I of the Income-tax Act, 1961.

The assessee submitted that EDC payments represent statutory levies or fees payable to the State Government of Haryana and therefore fall outside the ambit of TDS provisions under Chapter XVII of the Act.

However, the Assessing Officer rejected the explanation relying on a CBDT Office Memorandum dated 23.02.2017, holding that EDC payments are made to HUDA, which is a developing authority and a taxable entity under the Act. Accordingly, the Assessing Officer treated the assessee as a defaulting deductor and determined liability under Sections 201 and 201(1A) of the Act.

Subsequently, the Principal Commissioner of Income Tax (TDS) invoked Section 263 of the Act relying on the Delhi High Court decision in Puri Construction (P.) Ltd. vs Addl. CIT (2024) 159 taxmann.com 444, holding that EDC payments fall under Section 194C and not Section 194I.

The PCIT held that the assessment order passed under Sections 201/201(1A) was erroneous and prejudicial to the interests of the Revenue and therefore directed fresh examination of the applicability of TDS provisions under Section 194C.

Aggrieved by the revision order, the assessees filed appeals before the Income Tax Appellate Tribunal.

Issues Involved

  1. Whether the Principal Commissioner of Income Tax was justified in invoking Section 263 of the Income-tax Act.
  2. Whether the order passed by the Assessing Officer under Sections 201 and 201(1A) could be considered erroneous and prejudicial to the interests of the Revenue.
  3. Whether revision under Section 263 can be initiated when two views are possible on the applicability of TDS provisions on EDC payments to HUDA.
  4. Whether reliance on a subsequent judicial decision can render the earlier order of the Assessing Officer erroneous.

Petitioner’s Arguments (Assessee)

The assessee submitted that the Assessing Officer had passed the order after conducting detailed enquiry and applying his mind to the facts of the case.

It was argued that the conditions for invoking Section 263, namely that the order must be both erroneous and prejudicial to the interests of the Revenue, were not satisfied in the present case.

The assessee further submitted that the Assessing Officer had applied Section 194I, which provides for higher TDS at the rate of 10%, whereas the PCIT sought to apply Section 194C, where the TDS rate is 2%. Therefore, the order passed by the Assessing Officer could not be considered prejudicial to the interests of the Revenue.

The assessee also contended that the PCIT relied on the Delhi High Court judgment in Puri Construction (P.) Ltd., which was delivered after the Assessing Officer had passed the order. It is a settled principle that subsequent changes in law or judicial interpretation cannot be the basis for invoking Section 263.

Further, it was submitted that the Hon’ble Supreme Court had stayed the operation of the Delhi High Court decision in Puri Construction, and therefore the issue had not attained finality.

The assessee also emphasized that the issue was already pending before the Commissioner of Income Tax (Appeals) and therefore revision proceedings should not have been initiated.

Respondent’s Arguments (Revenue)

The Department argued that the Assessing Officer had failed to correctly apply the law while passing the order under Sections 201/201(1A).

The Revenue contended that in view of the Delhi High Court decision in Puri Construction (P.) Ltd., the payments made towards External Development Charges are covered under Section 194C as payments to contractors and not under Section 194I.

Accordingly, it was argued that the order passed by the Assessing Officer was inconsistent with the law and therefore the PCIT was justified in exercising revisionary powers under Section 263 of the Act.

Court Findings / Tribunal Decision

The Income Tax Appellate Tribunal observed that the core issue involved in the case relates to TDS applicability on External Development Charges (EDC) paid to HUDA.

The Tribunal noted that at the time when the Assessing Officer passed the order, the subsequent decision of the Delhi High Court in Puri Construction (P.) Ltd. was not available.

The Tribunal further observed that the issue was still pending before the Commissioner of Income Tax (Appeals) and the question regarding applicability of Section 194I or Section 194C could be adjudicated in those proceedings.

The Tribunal also noted that the Assessing Officer had computed the liability by applying Section 194I with a TDS rate of 10%, whereas the PCIT sought to apply Section 194C with a lower TDS rate of 2%. Therefore, it could not be said that the assessment order was prejudicial to the interests of the Revenue.

The Tribunal held that the issue involved in the case was debatable and the order passed by the Assessing Officer was a possible and plausible view at the time it was passed.

The Tribunal further held that revision under Section 263 cannot be exercised merely because the Commissioner holds a different opinion, particularly when the issue is already pending before the appellate authority.

Accordingly, the Tribunal held that the revision order passed under Section 263 was not sustainable.

Court Order

The Income Tax Appellate Tribunal set aside the revision order passed under Section 263 and quashed the same.

All the appeals filed by the assessees were allowed.

Important Clarification

  • Revision under Section 263 cannot be invoked when the Assessing Officer has taken a plausible view after due enquiry.
  • Subsequent judicial developments cannot render an earlier order erroneous.
  • Where an issue is debatable and pending before appellate authorities, invocation of revisionary jurisdiction is not justified.
  • If the Assessing Officer’s view does not cause prejudice to Revenue, Section 263 cannot be invoked.

Sections Involved

  • Section 194I – TDS on rent
  • Section 194C – TDS on payments to contractors
  • Section 201 – Consequences of failure to deduct or pay TDS
  • Section 201(1A) – Interest on TDS default
  • Section 263 – Revision of orders prejudicial to the interests of Revenue

Link to download the order -  https://itat.gov.in/public/files/upload/1735628218-rdbphm-1-TO.pdf

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