2016 (3) TMI 647 - AT - Income Tax

Tribunal rules in favor of appellant, payment not subject to TDS, disallowance incorrect.

The Tribunal allowed the appeal, ruling in favor of the appellant. The payment to the consolidator was deemed genuine and not subject to TDS under ... TDS u/s 194H - disallowance u/s 40(a)(ia) - non deduction of tds - Held that:- Unless the assessee decided to procure less than 27 acres of land through Vikram Electric Equipment P. Ltd. Vikram Electric Equipment P. Ltd. was to procure 27 acres of land for the assessee, failing which, no payment was to be made by the assessee to Vikram Electric Equipment P. Ltd. This clearly shows that Vikram Electric Equipment P. Ltd. was transacting on a principle to principle basis and it cannot be said that the payment was made by the assessee to Vikram Electric Equipment P. Ltd. for rendering of any service. The provisions of sec. 194H of the Act are, therefore, not at all applicable. Moreover, the amount paid to Vikram Electric Equipment P. Ltd. was duly reflected by the assessee in the purchases closing stock. No sales had been made during the year under consideration. It has not been shown to be otherwise. In such a scenario, in our considered opinion, no disallowance is called for. The provisions of section 40(a)(ia) of the Act in any case do not apply, the assessee having not claimed any deduction for any expenses on account of payment to Vikram Electric Equipment P. Ltd. either in its profit and loss account or in the computation of taxable income filed. It was only that the Assessing Officer recorded a loss of ₹ 19,700/-. This obviously, did not include any addition of either ₹ 4.02 crores or ₹ 1.24 crores. - Decided in favour of assessee Issues Involved:1. Legality and factual correctness of the CIT(A)'s order dated 24.2.11.2. Treatment of Rs. 95,44,264/- as non-genuine expenditure.3. Disallowance under Section 40(a)(ia) of the Income Tax Act, 1961.4. Requirement of TDS deduction under Sections 194C or 194H of the Income Tax Act, 1961.5. Impact of disallowance on the appellant's profit liable to tax.6. Consistency of the CIT(A)'s order regarding the inclusion of the said amount in purchases and closing stock.Detailed Analysis:1. Legality and Factual Correctness of the CIT(A)'s Order:The appellant challenged the CIT(A)'s order dated 24.2.11, arguing it was 'bad in law and wrong on facts.' The Tribunal reviewed the case and found that the CIT(A) had upheld the Assessing Officer's (AO) decision without sufficient evidence to support the claim that the expenditure was non-genuine.2. Treatment of Rs. 95,44,264/- as Non-Genuine Expenditure:The AO had added Rs. 95,44,264/- to the appellant's income, treating it as non-genuine expenditure. The appellant contended that this amount was paid to a consolidator for services rendered in identifying and negotiating land purchases. The Tribunal noted that the consolidator's role was crucial for the appellant's business, and the payment was part of a Memorandum of Understanding (MoU) for land acquisition.3. Disallowance under Section 40(a)(ia) of the Income Tax Act, 1961:The AO disallowed the expenditure under Section 40(a)(ia) due to non-deduction of TDS. The Tribunal found that the payment to the consolidator was not for services rendered but for the transfer of rights. Therefore, Section 40(a)(ia) was not applicable as the payment did not constitute a service charge subject to TDS.4. Requirement of TDS Deduction under Sections 194C or 194H:The AO and CIT(A) held that the appellant should have deducted TDS under Sections 194C or 194H. The Tribunal disagreed, stating that the consolidator acted on a principal-to-principal basis, not as an agent. Consequently, the provisions of Sections 194C and 194H did not apply.5. Impact of Disallowance on the Appellant's Profit Liable to Tax:The appellant argued that the disallowance had no impact on the taxable profit as the amount was included in the closing stock. The Tribunal agreed, noting that the entire purchase amount, including the disputed Rs. 95,44,264/-, was part of the closing stock. Therefore, the disallowance did not affect the taxable income for the year.6. Consistency of the CIT(A)'s Order Regarding Inclusion in Purchases and Closing Stock:The appellant contended that the CIT(A)'s order was contradictory, confirming the addition while acknowledging the inclusion in the closing stock. The Tribunal found this argument valid, stating that the treatment of the amount in the closing stock negated any immediate tax impact.Conclusion:The Tribunal allowed the appeal, ruling that the payment to the consolidator was genuine and not subject to TDS under Sections 194C or 194H. The disallowance under Section 40(a)(ia) was also deemed incorrect, and the inclusion of the amount in the closing stock meant no immediate tax impact. The Tribunal's decision was consistent with previous judgments in similar cases, reinforcing the appellant's position.