2016 (3) TMI 920 - AT - Income Tax

Tribunal rules overseas payments not subject to tax withholding under section 195(1)

ACIT, Cir. 6 (3), Mumbai Versus M/s Lehman Brothers and Advisors P Ltd

The Tribunal upheld the FAA's decision, ruling that payments to overseas companies were not subject to tax withholding under section 195(1) as they did ... Disallowance of reimbursement of expenses - non deducted tax at source with regard to such payments - withholding of tax - Held that:- FAA had rightly held that section 40(a)(i)had no role to play regarding the payments made by the assessee to overseas companies. Secondly, services in the nature of recruitment or placement agency do not come under the purview of fees for included services within the meaning of Art.12(4)(b)of the DTAA. We would also like to mention that the retrospective amendment to section 9 cannot change the tax withholding liability with retrospective effect. In the cases of Virola International (2014 (2) TMI 653 - ITAT AGRA) it had been clearly held that liability to deduct tax cannot be implemented retrospectively. The assessee had acted as per the provisions of Act that were applicable at the time of making the payment and in the case under consideration there was no liability on part of the assessee to deduct tax for the payment made. Considering the above, we are of the opinion that the order of the FAA does not suffer from any legal or factual infirmity. So, confirming his order, we decide effective ground of appeal against the AO. Issues Involved:1. Disallowance of reimbursement of expenses under section 40(a)(ia) of the Income-tax Act, 1961.Analysis:The case involved the disallowance of reimbursement of expenses amounting to Rs. 97.95 crores by the Assessing Officer (AO) under section 40(a)(ia) of the Income-tax Act. The AO contended that the payments made by the assessee to its overseas group companies were in the nature of Technical/Managerial services, requiring tax deduction at source under section 195(1) read with section 9(1)(vii) of the Act. The AO observed that the group companies provided recruitment services for the assessee, and as per the amended provisions of section 9(1)(vii), income would be deemed to arise in India even if the services were rendered outside India. Consequently, the AO disallowed Rs. 97,95,014 invoking section 40(a)(ia) of the Act.The assessee appealed before the First Appellate Authority (FAA), arguing that the payments were mainly for legal and professional charges, recruitment charges, and repairs/maintenance costs. The assessee contended that the expenses were reimbursed to the overseas group companies, which were not in the nature of Fees for Technical Services (FTS) and did not attract section 195(1). The FAA, after considering the submissions, held that the disallowance made by the AO was not sustainable as most of the expenses were towards recruitment charges and were pure reimbursements without any profit element.During the hearing before the Appellate Tribunal, the Departmental Representative (DR) supported the AO's order, while the Authorized Representative (AR) relied on previous cases to support the assessee's arguments. The Tribunal found that the expenses were indeed reimbursements made for recruitment charges without any mark-up, and the AO had not considered the details provided by the assessee. Referring to relevant case law, the Tribunal held that reimbursement of expenses could not be regarded as a revenue receipt, and the disallowance under section 40(a)(ia) was not justified.In conclusion, the Tribunal upheld the FAA's decision, stating that the payments made by the assessee to overseas companies did not qualify as FTS and were not subject to tax withholding under section 195(1). The Tribunal also emphasized that retrospective amendments to section 9 could not change the tax withholding liability with retrospective effect. The appeal filed by the AO was dismissed, and the CO filed by the assessee was allowed for statistical purposes.This detailed analysis of the judgment highlights the key arguments, legal provisions, and decisions made at each stage of the case, ultimately leading to the dismissal of the AO's appeal and the allowance of the CO filed by the assessee.