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Services rendered by foreign concern for introducing a client did not make-available any technical knowledge, experience, skill, know-how or processes to assessee, therefore, related payment did not fall within the realm of “Fees for included services” as envisaged in Article 12 of the Indo-US, DTAA and payment made to foreign concern constituted its business profits within the meaning of Article 7 Indo-USA DTAA, and in the absence of any Permanent Establishment of the said foreign concern in India no taxability arose and, therefore, assessee was not liable to withhold tax under section 195.
Whether the Tribunal is correct in not confirming the disallowance under Section 40(a)(ia) made by the Assessing Officer when the assessee did not comply with requirements of Sub-Section 7 of Section 194C read with Rule 31A?.
Manne Hareesh Vs ITO (ITAT Hyderabad) During the course of scrutiny assessment proceedings, it was observed by the Ld. AO that the assessee has debited in his P & L Account an amount of Rs. 2,40,000 towards Accounting Charges. On query, it was explained by the assessee that the outstanding amount of Rs. 2,40,000 was […]
1. Disallowance of expenditure; u/s 40(a)(i) of and section 40(a)(ia), if Tax not deducted / not deposited till the due date of filing of return; a. Payment to Non-resident ;100% expenses disallowed b. Payment to resident ;30% expenses disallowed However, if tax is deducted or deposited in subsequent year, the expenditure so disallowed shall be allowed […]
Services provided by the payment gateway is such that the charges collected by it has to be necessarily treated as fees and not as a commission. The payment in fact is made by one principal to another and it is only being facilitated by the payment gateway by providing a service.
The issue under consideration is whether depreciation on ‘imported software’ will be considered as royalty and liable for disallowance under section 40(a)(ia) for want of TDS?
Coming to the provisions of section 40(a)(ia) of the Act, the said section also provides that any interest, royalty, fees for technical services or other sum chargeable under this Act 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 on or before the due date specified in section 139(1) of the Act. We therefore find that both the provisions of section 195(1) as well as 40(a)(ia) of the Act talks about deduction of tax at source where the sum is chargeable under this Act.
There is nothing in section 40(a)(ia) to treat assessee as a defaulter where there is shortfall in deduction of TDS and if the shortfall is due to any difference of opinion as to taxability of any item or the nature of payment falling under various TDS provisions, the assessee can only be declared to be an assessee-in-default under section 201 and no disallowance could be made.
When the commission paid to the non-resident agents was neither received or deemed to be received in India nor accrued or was deemed to accrue in India, no income was chargeable to tax under the provisions of the Act. When the payment made by assessee to the overseas agent for services rendered abroad was not income chargeable to tax in India, there was no obligation cast upon assessee to deduct tax at source under section 195 and consequently, the provisions of section 40(a)(ia) would not be attracted.
Assessee had incurred only office expenditure and no expenditure relating to transportation of goods such as loading, unloading charge etc., has been debited, we are of the considered opinion that the assessee actually engaged himself not in the transportation business, but only facilitating or arranging transportation for various parties and he is a mere lorry booking agent. We, therefore, are of the opinion that the assessee cannot be held as the person responsible for deduction of tax at source and to the facts of the case the provisions under section 194C of the Act have no application.
