2024 (7) TMI 1377 - AT - Income Tax

Tribunal Affirms CIT(A)'s Decision: Assessing Officer Erred in Transaction Re-characterization, Appeal Dismissed.

Income Tax Officer, International Taxation Ward-3 (1) (1), Delhi Versus M/s Toshiba Corporation

The Tribunal upheld the CIT(A)'s decision, concluding that the Assessing Officer incorrectly re-characterized the nature of the transaction. It ruled that ... TDS u/s 195 - default u/s. 201(1)/201(1)(A) - assessee at the time of payment of consideration for purchase of shares deducted tax at source@10% plus applicable surcharge and education cess on total consideration paid - action of the TDS Officer in re-characterizing the nature of transaction from ‘sale of shares’ to ‘sale of assets’ - HELD THAT:- As an undisputed fact that the assessee has deducted tax at source on the payments made for purchase of shares from the non-resident sellers. A perusal of order passed u/s. 201(1)/201(1A) of the Act shows that the AO has passed an order purely on surmises and conjectures changing the nature of transaction of ‘sale of shares’ to ‘sale of assets’. AO in proceedings u/s. 201 of the Act has gone beyond his jurisdiction in re- characterizing nature of transaction. Further it is an undisputed fact that the assessee has deducted tax at source @10% plus surcharge on consideration paid for purchase of shares and has deposited the TDS to the Government exchequer. Thus, in light of undisputed facts the assessee cannot be held as “assessee in default”. We find no infirmity in the impugned order; hence, the same is upheld. Decided against revenue. Issues:1. Whether re-characterization of nature of income by the Assessing Officer is correct.2. Whether the assessee is an 'assessee in default' for non-deduction of tax at source.3. Whether the order of the Commissioner of Income Tax (Appeals) should be upheld.Analysis:Issue 1: Re-characterization of nature of incomeThe Department challenged the order of the Commissioner of Income Tax (Appeals) (CIT(A)) asserting that the re-characterization of the nature of income by the Assessing Officer was incorrect. The Department argued that the transactions involving shares were actually transfers of the underlying assets, as the Net Asset Value of the company was negative. The Department contended that there was no commercial rationale for valuing the shares at such high prices. However, the CIT(A) found in favor of the assessee, stating that the Assessing Officer had erred in re-characterizing the nature of the transaction. The CIT(A) emphasized that the assessee had deducted and deposited the applicable Tax Deducted at Source (TDS) on the consideration paid to the non-resident sellers of the shares. The Tribunal upheld the CIT(A)'s decision, ruling that the Assessing Officer had exceeded his jurisdiction in changing the nature of the transaction and that the assessee could not be considered an 'assessee in default' based on the undisputed facts.Issue 2: 'Assessee in default' for non-deduction of tax at sourceThe Assessing Officer had initiated proceedings under section 201 of the Income Tax Act, alleging that the assessee was an 'assessee in default' for not deducting tax at source on the purchase of shares. The AO contended that the transaction was actually a purchase of assets of the company. However, the CIT(A) disagreed with this characterization and deleted the addition, noting that the assessee had deducted and deposited TDS on the consideration paid to the sellers. The Tribunal concurred with the CIT(A) and held that since the assessee had deducted tax at source and deposited it with the government, they could not be deemed an 'assessee in default.'Issue 3: Upholding the order of the CIT(A)The Department appealed before the Tribunal against the order of the CIT(A). The Tribunal, after hearing both sides, found no infirmity in the CIT(A)'s order. The Tribunal upheld the CIT(A)'s decision, dismissing the appeal of the Revenue for lacking merit. Therefore, the order of the CIT(A) was affirmed, and the appeal of the Revenue was dismissed.In conclusion, the Tribunal upheld the CIT(A)'s decision, emphasizing that the assessee had complied with the TDS requirements and could not be considered an 'assessee in default.' The Tribunal found that the Assessing Officer had overstepped his jurisdiction in re-characterizing the nature of the transaction. Consequently, the appeal of the Revenue was dismissed, and the order of the CIT(A) was upheld.