2013 (12) TMI 301 - AT - Income Tax

Tribunal Partially Allows Appeal, Orders Review of Tax Disallowance & Income Treatment

Income-tax Officer Versus ABS Industrial Verification India (P.) Ltd.

The Tribunal partly allowed the appeal filed by the Assessing Officer, remitting the matter back to the First Appellate Authority for further review. The ... Assessment u/s 143(3) – Disallowance u/s 40(a)(ia) – The assessee has paid surveyor fee without deducting tax at source and – Held that:- The taxability of the amount-in-question has not been properly examined by the AO. FAA has also not dealt the subject in proper perspective - AO had made a mistake in adding the same amount on three different accounts while determining the tax liability of the assessee - The FAA should have examine the case properly and give a finding based on the available material and as per law - Solely relied upon the two cases for deciding the issue without referring to any of the papers that were filed before - He did not call for any report from the AO in this regard - He has nowhere mentioned as how the facts emerging out of the paper filed before him were identical to the facts of the case relied upon by him for deciding the issue – The issue set aside for fresh adjudication. Issues:1. Disallowance of surveyor fee paid to ABS Group of companies for non-deduction of TDS under Section 40(a)(ia).2. Disallowance of expenses under Section 37(1) due to lack of proof of genuineness.3. Treatment of payable amount to creditors as income under Section 41(1).Analysis:1. The Assessing Officer (AO) disallowed the surveyor fee paid to ABS Group of companies for non-deduction of TDS under Section 40(a)(ia). The AO questioned the lack of TDS deduction on reimbursement and payments to group concerns. The AO disallowed the entire expenditure of Rs. 44.61 lakhs under the head 'Surveyor Fee' invoking Section 37(1) of the Act. The First Appellate Authority (FAA) found the AO's approach unjustified and deleted the disallowance made under Section 37(1).2. The FAA also addressed the disallowance of expenses under Section 37(1) and found that the AO had overlooked the fact that the amount had already been disallowed for non-deduction of TDS. The FAA deleted the disallowance made by the AO under Section 37(1).3. Regarding the treatment of the payable amount to creditors as income under Section 41(1), the FAA held that the AO failed to demonstrate the applicability of Section 41(1) in the case. The FAA found the addition made by the AO under Section 41(1) unnecessary and ordered its deletion.4. The FAA further analyzed the issue of deductibility of TDS and the provisions of Double Taxation Avoidance Agreement (DTAA). The FAA determined that the nature of services obtained from ABS Group of companies fell under technical services as per the INDO-US Treaty. The FAA concluded that the appellant was not obligated to deduct tax at source for payments made to the Group companies, based on relevant judgments.5. The Tribunal remitted the matter back to the FAA for further verification, noting that the taxability of the amount-in-question required a more thorough examination. The Tribunal found that the FAA had not considered all the relevant documents and directed a fresh adjudication order after affording the assessee a reasonable opportunity of hearing.In conclusion, the Tribunal partly allowed the appeal filed by the AO and sent the matter back to the FAA for further review. The issues related to the cross-objection were disposed of for statistical purposes.