2016 (11) TMI 733

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..... 40(a)(i) of the Income Tax Act, 1961. 2. On the facts and circumstances of the case, the Ld. CIT(A) erred in deleting the above said addition ignoring the fact that the assessee company has paid substantial amount as bank guarantee commission on which tax was not deducted. 3. On the facts and circumstances of the case, the Ld. CIT(A) has failed to appreciate that the revenue is in appeal in ITAT on similar issues involved in earlier years in assesssee own case. Hence, the matter is sub-judice and has not attained its finality. 4. The appellant craves to be allowed to add any fresh grounds of appeal and / or delete or amend any of the grounds of appeal. 2. The facts in brief are that the assessee has filed its return declaring ....

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.... the Revenue in the grounds and requested that Appeal of the Revenue may be allowed. 6. On the contrary, Ld. Counsel of the Assessee has relied upon the order of the Ld. CIT(A) and stated that he has passed a well reasoned order and deleted the addition on the basis of the Ld. CIT(A)-VII, Delhi decision for the assessment years 2006-07 to 2008-09. He further stated that in the earlier years i.e. AYrs. 2006-07 to 2008-09 against the order of the Ld. CIT(A), Department went in Appeal before the Tribunal and the Tribunal vide order dated 5.2.2016 has dismissed the appeals of the Revenue by upholding the order of the Ld. CIT(A) on the issue in dispute. In this behalf, he filed the copy of the tribunal's order dated 5.2.2016 for the assessmen....

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.... claimed Rs. 5,20,56,831/-, Rs. 5,52,49,559/- and s.4,77,71,123/- on account of bank guarantee commission having been paid to a foreign bank on behalf of holding company of the assessee qua Assessment Years 2006-07, 2007-08 & 2008-09 respectively and the same have been disallowed by the Assessing Officers u/s 40(a)(1) of the Act because of non deduction of tax at source (TDS) paid in India. 8.1 The Assessing Officer after declaring the bank guarantee commission paid by the assessee company in India to a foreign bank as interest u/s 2(28A) of the Act, disallowed the same u/s 40(a)(1) of the Act but his decision has been reversed by Ld. CIT(A) vide impugned order, which is now under challenge before the Tribunal. 8.2 Undisputedly, VTB b....

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....e company has placed on record for perusal of the revenue authorities cogent material that it has paid bank guarantee commission to a foreign bank, the Assessing Officer could not lay hands on any material to treat the bank guarantee commission as interest or deemed interest alleged to be paid by the assessee company to the foreign bank. Moreover, there is no dispute that the assessee company has not borrowed any funds form VTB Bank, Russia on which, it was required to pay the interest. Section 2(28A) of the Act defines the 'interest' paid in any manner in respect of any moneys borrowed or debt incurred (including a deposit, claim or other similar right or obligation) and includes any service fee or other charge in respect of the moneys bor....