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We are not inclined to interfere with the finding of the CIT(A) because on account of violation of conditions prescribed under clause (ia) the implication u/s.40(a) would be that the said amount will not be deducted in computing income chargeable under the head ‘profits and gains of business or profession’. The same will form part of profits and gains of business or profession of the assessee which could be included along with income under all the other heads in the assessee’s gross total income.
With respect to the deduction u/s.194-I,the learned Counsel for the assessee has submitted that the land lady being a senior citizen has submitted Form 15G to the assessee declaring that no tax should be deducted on the rent paid to her when the taxable limit for taxation in her hand was to be Rs. 1,95,000.
There is nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction. With regard to the shortfall, it cannot be assumed that there is a default as the deduction is not as required by or under the Act, but the facts is that this expression, ‘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 sub-section (1) of section 139’.
Since the assessee only distributed the income in terms of the agreement and this did not amount to incurring of an expenditure nor the assessee claimed any, there was no infirmity in the findings of the Commissioner (Appeals) in deleting the disallowance under section 40(a)(ia).
Tribunal held that the payment made by assessee to a foreign company for the services rendered by it for uploading and display of the banner advertisement on its portal was in the nature of business profit and not royalty and such payment was not chargeable to tax in India as the recipient has no PE in India and, therefore, assessee was not liable to deduct tax at source from the payment for such services and the same cannot be disallowed by invoking the provisions of section 40(a)(i) for non-deduction of tax.
In the above ruling, fees paid to a resident of Canada as consideration for analysis of samples and ores conducted from technical lab was held as fees for technical services u/s.9(1)(vii) and Article 12 of the India-Canada Treaty. No arguments were made on the aspect of ‘make available’ requirement present in the definition of ‘fees for technical services’ under Article 12 of the Treaty and the AAR also did not consider this. Thus, the decision relied on by the learned Departmental Representative is distinguishable.
Section 40a(ia) provides that if 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 of 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 on or before the due date specified in sub-section (1) of section 139, then such expenses shall not be deducted in computing the income chargeable under the head “Profits and gains of business or profession.
Mitra Logistic Pvt. Ltd. V. ITO – There is no dispute about the fundamental posit ion that as long as the payments are for reimbursements, and not expenditure, the tax deduct ion obligations do not come into play and accordingly, disallowance u/s. 40(a)(i ) cannot be made either. In support of this proposition, our attention is invited to a coordinate bench decision in the case of Satyendra Jhunjhunwalla –vs. – ITO (ITA No. 1988/Kol. /2009; order dated 11.11.2011). He, however, fairly submits that as this aspect of the matter, i.e. payment being in the nature of reimbursement , has not been examined by the authorities below, the matter can be restored to the file of the Assessing Officer for fresh adjudication in the light of the above principle.
Tribunal has held that a payment which has direct link and immediate nexus with the trading liability being connected with the delayed purchase payments will not fall within the category of interest as defined in section 2(28A). The payment made by the assessee in the present appeal being of similar nature also cannot be termed as interest as defined under section 2(28A).
, Hon’ble Calcutta High Court in their decision dated 23.11.2011 ITA no. 302 of 2011 GA 3200/2011 in CIT Vs. Virgin Creations, held that that amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 as aforesaid was retrospective from 1.4.2005. The ld. AR pointed out that this is the sole decision rendered by a High Court at the moment on the issue. Following the view in this decision, co-ordinate Bench in their decision dated 11.4.2012 in Piyush C. Mehta Vs. ACIT no.1321/Mum./2009 for the AY 2005-06 and the decision dated 10.5.2012 in ITA no. 717/Bang/2011for the AY 2008-09 in ACIT Vs. M.K. Gurumurthy also held that the aforesaid amendment is applicable retrospectively w.e.f 1.4.2005.
