2022 (10) TMI 491 - AT - Income Tax

Appeal Dismissed: Notice Timeliness Upheld, TDS Not Applicable to Non-Residents

The Tribunal dismissed the Revenue's appeal challenging the timeliness of the notice under Section 201 of the Income Tax Act, emphasizing that Section ... TDS u/s 195 - international transaction for payment made on account of Data Line Charges - HELD THAT:- It is pertinent to note that Section 201(3) specifies the time limit in respect of TDS for residents only. CIT(A) observed that the order dated 25.03.2019 is beyond four years in light in case of NHK Japan Broadcasting Corporation [2008 (4) TMI 182 - DELHI HIGH COURT]. The decision of Jurisdictional High Court referred by the CIT(A) is opt in present case as regards to limitation. Further on merit, the assessee before the AO as well as before the CIT(A) has given the details as well as agreement between the assessee and Allscripts USA. The agreement between the parties can be specific and its length or pages does not matter. Merely on the length of the agreement, the AO cannot overlook the contents of the agreement. The payment made to the non-resident was at no point of time pointed out by the Revenue that the said is coming under the purview of TDS deduction. The amount paid to Allscripts USA is on actual cost basis without any element of markup and for the reimbursement of expenses incurred by way of using the network connectivity provided by the service provider and the amount is not chargeable to tax on any accounts. Thus, the CIT(A) has rightly deleted the addition. Decided against revenue. Issues:1. Timeliness of notice under Section 201 of the Income Tax Act.2. Applicability of limitation under Section 201(3) to payments made to non-residents.3. Tax deduction on payments made to a non-resident for data line charges.4. Characterization of income in the hands of the assessee based on payment mode.Analysis:1. The appeal by the Revenue challenged the order of the Ld. CIT(A) regarding the timeliness of the notice under Section 201 of the Act. The Revenue contended that the notice issued beyond four years was not sustainable, citing a judgment of the Gujarat High Court. However, the Ld. A.R. argued that the notice was time-barred as per Section 201(3) and referred to a decision of the Delhi High Court. The Tribunal noted the delay in filing the appeal and condoned it. It clarified that Section 201(3) pertains to TDS for residents only, and the decision of the Jurisdictional High Court was not applicable in this case. The Tribunal upheld the CIT(A)'s decision, emphasizing that the agreement details provided by the assessee were crucial, and the payment made to the non-resident was not subject to TDS deduction.2. The issue of the applicability of limitation under Section 201(3) to payments made to non-residents was a key contention. The Revenue argued that the limitation did not apply to payments to non-residents, while the Ld. A.R. asserted that no specific time frame was prescribed under Section 201 for orders concerning non-residents. The Tribunal considered the arguments and highlighted that the notice in this case was issued after the reimbursement of expenditure to the non-resident, emphasizing the importance of the inter-company agreement and proper consideration of evidence by the Assessing Officer.3. Regarding tax deduction on payments made to a non-resident for data line charges, the Revenue contended that the payment was for services falling under FTS, and the mode of payment did not alter the taxability of the transaction. However, the Ld. A.R. argued that the payment was a reimbursement of expenses without any markup, not subject to tax. The Tribunal agreed with the CIT(A)'s decision to delete the addition, emphasizing the nature of the payment and the absence of TDS liability.4. The characterization of income in the hands of the assessee based on the payment mode was another issue raised. The Revenue argued that the payment to the holding company was a reimbursement, hence not liable for TDS. Conversely, the Ld. A.R. emphasized the actual cost basis of the payment without any markup, leading to the deletion of the addition by the CIT(A). The Tribunal upheld the decision, highlighting the justification for the non-taxability of the amount paid.In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s decision based on the specific details provided by the assessee, the nature of the payments made, and the absence of TDS liability in the transactions with the non-resident party.