2015 (8) TMI 666 - HC - Income Tax

Appeal allowed on royalty charges but remanded for fresh adjudication. Assessing Officer disallowed amount under Section 40(a)(ia).

The appeal was against the disallowance of annual maintenance charges due to non-deduction of TDS. The appellate authority allowed the appeal on royalty ... Non deduction of TDS - payment of annual maintenance charge - as per ITAT Since the CIT(A) has not given any finding on merit, we restore the matter to his file with the direction to adjudicate the issue on merit as to whether the provisions of section 194C are applicable to the present case - Held that:- Tribunal has observed that 'the revenue has challenged the order of CIT(A) on merit also, but no finding was given by the CIT(A) on merit with regard to the nature of payments, therefore, the learned Tribunal set aside the order of CIT(A) and reversed the finding of CIT(A) given following the order of the Special Bench of the Tribunal in the case of Merilyn Shipping & Transports [2012 (4) TMI 290 - ITAT VISAKHAPATNAM]. Since the CIT(A) has not given any finding on merit, the learned Tribunal restored the matter to his file with the direction to adjudicate the issue on merit as to whether the provisions of Section 194C are applicable to the present case. We also do not find any discussion on merit of the case with regard to application under Section 194C of the Income Tax Act. Therefore, we are of the view that no substantial question of law would arise at this stage to consider the applicability of Section 194C of the Act. In so far as, the applicability of Section 40(a)(ia) is concerned. We are of the view that the stage of consideration of this question would arise after determination of the case with regard to applicability of Section 194C of the Act, by the Tribunal. Therefore, we keep open the issue as to whether a dis-allowance was warranted under the provisions of Section 40(a)(ia) of the Act be raised by the Appellant after determination of the applicability of Section 194 C of the Act. - Decided in favour of assessee for statistical purposes. Issues:1. Disallowance of annual maintenance charges due to non-deduction of TDS.2. Disallowance of royalty charges and subsequent appeal.3. Interpretation of Section 194C regarding nature of contract.4. Application of Section 40(a)(ia) in the case.Analysis:1. The appeal was against the order passed by the Income Tax Appellate Tribunal regarding disallowance of annual maintenance charges of Rs. 33,14,317 due to non-deduction of TDS. The Assessing Officer disallowed the amount as no TDS was made on the payment to M/s Wipro GE Medical Services. The appellate authority allowed the appeal and deleted the disallowance on royalty charges, but the Tribunal remanded the issue back to the Assessing Officer for fresh adjudication. The Assessing Officer, after re-examination, disallowed the amount under Section 40(a)(ia) for non-deduction of tax at source, leading to the appellant challenging the order in appeal.2. The appellant challenged the order of assessment, and the appellate authority set aside the Assessing Officer's order. The Revenue appealed, and the Tribunal remanded the issue back for further consideration. The appellant filed an application for rectification, which was dismissed by the Tribunal. The appellant then filed the instant appeal against the Tribunal's order, raising substantial questions of law related to the Tribunal's decision not following a previous judgment and the applicability of Section 40(a)(ia).3. The Tribunal observed that no finding was given on the nature of payments, and therefore set aside the order of the CIT(A) for further adjudication on the applicability of Section 194C. The Tribunal reversed the CIT(A)'s finding and directed a fresh consideration of the issue. The High Court found no substantial question of law at that stage regarding the applicability of Section 194C and decided not to entertain the appeal on those grounds, keeping the issue open for future consideration.4. The High Court declined to entertain the appeal on the substantial questions of law raised by the appellant, as the applicability of Section 40(a)(ia) depended on the determination of the applicability of Section 194C. The Court dismissed the appeal at the admission stage, emphasizing that the consideration of Section 40(a)(ia) would arise after the determination of the case regarding the applicability of Section 194C. The issue of disallowance under Section 40(a)(ia) was to be raised after the determination of the applicability of Section 194C.