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Merilyn Shipping & Transports v. Assistant Commissioner of Income-tax – ITAT VISAKHAPATNAM (SPECIAL BENCH) Whether Section 40(a)(ia) of the Income Tax Act can be invoked only to disallow expenditure of the nature referred to therein which is shown as payable as on the date of the balance sheet or it can be invoked also to disallow such expenditure which become payable at any time during the relevant previous year and was actually paid within the previous year. Held that section 40(a)(ia) cannot be invoked in respect of amounts actually paid within the previous year without deduction of TDS. Section 40(a)(ia) applies only to amounts outstanding as of 31st March of every year (Majority view). Section 40(a)(ia) would apply only to amounts outstanding as of 31st March of every year on which TDS not deducted and not to amounts paid during previous year without deduction of TDS for following reasons:
When the CBDT itself has clarified that the amended provisions of Section 194I relating to deduction of tax at source for the purpose of Section 40(a)(ia) would be applicable for AY 2007-08, the Assessing Officer was not justified in making the disallowance. We also find that similar issue came up before the learned CIT (A) in AY 2005-06 wherein he accepted the assessee’s contention.
It is undisputed fact that the appellant is an undertaking and is engaged in the manufacturing of article specified in Fourteenth schedule and in a specified category of states for which it is eligible for deduction u/s.80IC. Such an exemption has been allowed in the earlier years by the Assessing 0fficer himself i.e. for the Assessment Year 2005-06 and 2006-07. Sub-section 3 of section 80IC categorically provides that the deduction would be available for 100% of such profits and gains for 10 assessment years if the profits and gains have been derived from such business activities.
ITAT held that tax withholding provisions under section 195 of the Income-tax Act, 1961 (the Act) are not applicable to payments made by the Indian head office to its foreign branch, as both are ‘residents’ according to the Indian Income-tax Act, 1961 and the relevant Double taxation avoidance agreement (the tax treaty) between India and the US. Furthermore, sales made by the Indian HO to its foreign branch are eligible for deduction under section 10A of the Act and are therefore to be included in the ‘export turnover’ when calculating deduction under section 10A of the Act of the Act.
Explore the Roy Mitra vs. ACIT case (ITA No. 1703/2009) involving Sec. 194C, TDS, and contractual disputes. Key rulings and implications revealed.
First of all, we will consider the second part of the submission i.e. since the person to whom the payment was made has already offered the same for taxation, hence provisions of sec.40(a)(ia) cannot be invoked. This is not correct. Because the decision in the case of Hindustan Coca Cola Beverage (P.) Ltd. vs. CIT [supra] was rendered under the provisions of sec.201. Secondly, the Hon’ble Supreme Court vide para-10 has clearly mentioned that in view of Circular No.275/201/95-IT(Clause (b) of Explanation 1 to sec.115JB) dated 29-1-1997 no demand u/s.201[1] could be enforced after the deductor has satisfied the officer that taxes due have been paid by the deductee assessee.
Dy. CIT VS M/s. Divi’s Laboratories Ltd. (ITAT Hyderabad) – Section 195 of the Act has to be read along with the charging sections 4, 5 and 9 of the Act. One should not read section 195 to mean that the moment there is a remittance; the obligation to deduct TDS automatically arises. If we were to accept such contention, it would mean that on mere payment in India, income would be said to arise or accrue in India.
Court has held that amendment made in section 40(a)(ia) by Finance Act, 2010 is retrospective in nature and would apply from 01.04.2005. The said amendment provides that no disallowance under section 40(a)(ia) could be made where the TDS has been paid before the due date of filing of return of income. This is first ruling of any High Court on this issue.
ITO, Bharuch Vs The Ankleshwar Taluka ONGC (ITAT Ahmedabad)- It is pertinent to note that in the assessment order, the AO disallowed the entire payment made to the farmers amounting to Rs.2,57,62,253/- by invoking the provisions of section 40(a)(i) of he IT Act. Apart from this, the AO disallowed Rs. 51,47,250/- under Section 40A(3) of the Act. Thus, the disallowance of Rs.51,47,250/- was made twice i.e. once under Section 40A(3) and then invoking section 40(a(ia).
Valibhai Khanbhai Mankad vs DCIT (ITAT Ahmedabad) -Whether CIT(A) has erred in confirming the dis-allowance of Rs. 7,93,34,193/- u/s 40(a)(ia) on the ground that the assessee has filed Form No. 15J with CIT on 26.02.2009 instead of on or before 30th June, 2006 in as much the there is no failure to deduct tax at source under section 194C since the assessee has received Form No.15-I from the sub-contractors before making payment to them. Held , No The decision on deductibility of tax on payment made to sub-contractor is to be taken at time when contractor is releasing payments to sub-contractors and it is at that point of time second proviso to section 194C(3)(i) would come into play and when Form No. 15-I are submitted by sub-contractors to contractor, then contractor is not required to deduct tax from such payments, whereas compliance of third proviso can be deferred till 30th June of next financial year.
