TaxTMI 
TaxTMI 
2022 (3) TMI 714
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.... assessee has raised following additional ground before the Tribunal:- "On the facts and circumstances of the case and in law, the Assessing officer/Commissioner of Income tax (appeals) ought to have restricted the levy of Dividend Distribution Tax ("DDT"), on the dividend paid to M/s Texas Instruments Incorporated, USA, to 15 percent in terms of Article 10 of Double Taxation Avoidance Agreement ("DTAA") between India and USA, instead of 16.0688 percent charged in terms of section 115-O of the Income tax Act, 1961." 4.1 In this additional ground, the assessee has raised a legal issue contending that the dividend distribution tax payable on the dividend amount paid to its A.E. in USA should be restricted to the rate prescribed under DTAA. It is submitted that this is a purely legal issue and no new facts are necessary. Relying on the decision rendered by Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd (229 ITR 283), the assessee has prayed for admission of this additional ground. 4.2. The Ld A.R submitted that this issue is covered in favour of the assessee by the decision rendered by the co-ordinate benches of Tribunal in the following cas....
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.... amount of DDT liability u/s 115-O. He submitted that the assessment order did not discuss anything about DDT and hence it should be assumed that this amounts to deemed acceptance of DDT liability by the AO. He submitted that the same amounts to application of mind as held in the case of Kelvinator (2002)(256 ITR 1) by Hon'ble Delhi High Court. Accordingly he submitted that it cannot be said that the DDT liability is not part of assessment order passed u/s 143(3), if it is not specifically discussed in the assessment order, especially when there is no other section in the Act dealing with the assessment of DDT liability like the case of Fringe Benefit Tax assessment. He further submitted that the Hon'ble Madras High Court in the case of CIT vs. Indian Express (Madurai) (1983)(13 Taxman 441)(Mad) has held that any point which goes into the adjustment of tax liability can be looked into by ITAT. 4.6 He submitted that in the case of Maruti Suzuki vs. DCIT (2019)(ITA No.961/Del/2015), the revenue has stated that the DDT was not part of tax liability of the assessee nor it is part of assessment record and accordingly contended that the ground on DDT cannot be admitted. However, the D....
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....s pertinent to note that the said assessment order passed by the AO included the demand raised u/s 115QA of the Act also besides the demand raised u/s 143(3) of the Act. The Hon'ble Delhi High Court rejected the writ petition and allowed the assessee to file separate appeal before Ld CIT(A) u/s 246A of the Act against the tax liability raised u/s 115QA of the Act. With regard to the contention of the assessee that the additional tax payable u/s 115QA should not be construed as forming part of assessment order, the Hon'ble Delhi High Court answered the same as under:- "16. At the outset, the Court would first like to deal with the submissions of Mr Ganesh that the impugned demand raised under Section 115-QA of the Act should not be construed as forming part of the impugned assessment order and that it is something separate from it. While it is true that the demand under Section 115-QA of the Act would be in addition to the total income, the fact of the matter is that in the present case it forms an integral part of the impugned assessment order under Section 143 (3) of the Act. Reading the assessment order as a whole, it is plain to the Court that this demand under Section ....
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....ticed that the additional tax liability u/s 115QA was raised in the assessment order itself. Hence the Hon'ble Delhi High Court held that "it is not possible for this Court to read this part of the order separate from the rest of the assessment order". We also notice that M/s Genpact India P Ltd had filed appeal before Ld CIT(A) challenging various additions made by the AO while determining the total income of the assessee and by the time the writ petition was disposed of by Hon'ble Delhi High Court, the Ld CIT(A) had disposed of the appeal filed by the assessee and further the revenue had challenged his order by filing appeal before ITAT. However, the assessee was directed by Hon'ble Delhi High Court to agitate the issue of tax liability u/s 115QA by filing appeal before Ld CIT(A) only. 4.13 In the instant case, first of all, the DDT liability is not forming part of assessment order passed u/s 143(3) of the Act. Further, the liability u/s 115-O can be challenged under the clause "an order against the assessee where the assessee denies his liability to be assessed under this Act" mentioned in sec.246A(1)(a) as held by Hon'ble Supreme Court. The above said clause is a separate cl....
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....n the assessee's own case reported in (2020) 115 Taxmann.com 154 and it was decided in favour of the assessee. The Ld. A.R. submitted that the assessee had claimed similar expenditure in that year under the name "Data automation software expenses". The Ld. A.R. submitted that the said decision may kindly be followed on this issue. 6.2 We heard Ld. D.R. on this issue. He admitted that this issue is covered in favour of the assessee by the order passed by the Tribunal. However, he pleaded that this issue may be restored to the file of the A.O. for examining applicability of TDS provisions for the impugned payments, since there was no occasion for the A.O. to examine it. 6.3 We heard the parties on this issue and perused the record. We notice that the A.O. has disallowed the claim of the assessee treating it as capital in nature. Hence, we restrict ourselves to the reasoning given by A.O. We notice that an identical issue came to be considered by the coordinate bench in the assessee's own case in assessment year 2008-09 referred (supra) and the addition made in that year was deleted with the following observations:- 30. We have heard the rival submissions. A copy of the....
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....94I of the Act without observing that for making disallowance under section 40(a)(i)/(ia) of the Act does not require assessing authority to invoke specific provisions relating to TDS and it is sufficient if there is violation of any provision of chapter XVIIB of the Act by way of Non Deduction of tax or Non Payment of tax? Answer to Question Nos. 3: Whether on the facts of the case, the Tribunal's order can be said as perverse in nature as Tribunal failed to appreciate that mentioning of wrong provision of law does not invalidate disallowance if the order passed in sum and substance meets the legal requirements then it is said to be a valid order and appellate authorities has power to either enhance or reduce tax liability?". 17.1. Both the quest ions being inter-related to each other are answered together. These quest ions arise specifically out of ITA No.151/2020 and are not germane to ITA No.141/2020. As stated supra, the Assessee had taken on lease financing various motor vehicles, which are given to the employees of the Assessee. The Assessing Officer had disallowed the deduction sought for by the Assessee towards the payment made to the lease financing comp....
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....he lease financing company was to make payment of the amounts due to the company, and the car would be handed over to the employee through the Assessee. Thus there being no work as such being carried out by the lease financing company nor any service as such being rendered by the said company, we are of the opinion neither Section 194-C, nor 194-I of the Act are applicable. 17.6. The decisions relied upon by Sri. Aravind, learned Senior Panel counsel in Shree Choudhary Transport Company's case and Smt. J.Rama'scase (supra) are not applicable to the present facts and circumstances since, in these cases, the vehicles were used for transport of goods and or passengers, and the applicability of Section 194-I of the Act was in the context of the vehicles being used for transport purposes under the transport contract. The same not being the situation in the present case, those would not be of any help to the Revenue. 17.7. In view thereof, the substantial question Nos.2 and 3 are answered accordingly. Neither Section 194-C nor 194-I of the Act would be applicable to the lease financing of motor vehicles; thus there could have been no disallowance on the ground that ther....
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....bition & Conferences Limited has been examined by this Tribunal in assessee's own case for the Assessment Year 2010-11 vide order dt.24.2.2016 reported in Dy. CIT v. Electronics For Imaging India (P.) Ltd. [2016] 70 taxmann.com 299 (Bang. - Trib.) in paras 53 & 54 as under: " 53. We have considered the rival submissions and considered the relevant material on record. As it is clear that the assessee is providing sales and marketing services to its AE which includes identifying potential customers by conducting road shows, presentation and the like, the working also includes educating potential users of the benefit and features of the AEs range of products. However, products for which the assessee is providing sales and marketing services is only software/information technology products. Therefore, Asian Business Exhibition & Conference Ltd. which is mainly engaged in the organization of exhibitions and events as well as conducting conferences on behalf of the various clients for their various products and businesses. The functions of this company are entirely different from the assessee who is providing sales and marketing support services to its AE for software/IT pro....
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....ormation available at the relevant time. However, if subsequently on the basis of information available in public domain it is found on the basis of functionality or some other reason a company is not at all comparable, assessee cannot be precluded from objecting to selection of the company as a comparable. This legal proposition is fairly well settled by the decision in case of DCIT v. Quark Systems (P.) Ltd. (2010) 132 TTJ (Chd) (SB) 1 as well as decisions relied upon by the counsel for the assessee. In view of the aforesaid, we do not find any infirmity in the directions of DRP in excluding Asian Business Exhibition and Conferences Limited as a comparable. The ground raised is therefore dismissed." 54. In view of the above facts as well as decision of the Mumbai Bench of the Tribunal, this company cannot be considered as a good comparable with the assessee.' Thus when there is no change in the business activity of assessee for the year under consideration as well as in the functions of the said company then in view of the earlier order of this Tribunal in assessee's own case we hold that this company cannot be considered as a good comparable of the asse....