2015 (5) TMI 999 - AT - Income Tax

Disallowance of export commission payment - non deduction of tds - Held that - As payments of Export Sales Commission to the non-residents for procuring export orders, are not assessable to tax in India and consequently the assessee company is not under any obligation to deduct the TDS on the above commission payments u/s.195 of the Act. Accordingly, the additions made by the Assessing Officer, on account of disallowance of Export Sales Commission payments for non-deduction of TDS u/s.40(a)(i) r.w.s. 195 of the Act, are not justified and deleted. Since the Assessing Officer has not taken the amount of ₹ 25,63,409/- into consideration in the final computation of taxable income, no separate relief is required and thus, we find no infirmity in the order passed by the ld. CIT(A). - Decided against assessee Disallowance under section 14A - Held that - We find that the Assessing Officer, after considering the details filed by the assessee, quantified the disallowance under section 14A of the Act and also the ld. CIT(A) passed very detailed order and gave specific findings that the assessee has not maintained any separate books of account for the investment in shares, there was no separate establishment to look after the investments. Even before us, the assessee has not able to establish that no interest borrowing funds were used for investments in shares. Further, the ld. CIT(A), after considering the detailed explanation and books of accounts given by the assessee the addition made by the Assessing Officer was sustained. Accordingly, we find no infirmity in the order passed by the ld. CIT(A) - Decided against assessee Disallowance under section 80IA - CIT(A) held that the depreciation which was already set off cannot be carry forward notionally to the subsequent years for the purpose of computing the profits of the windmills on stand-alone basis and directed the Assessing Officer to allow the assessee s claim of deduction under section 80IA - Held that - CIT(A), by following the decision of the Tribunal in the case of GRT Firms & Others (2012 (6) TMI 802 - ITAT CHENNAI) as well as judgement of the Hon ble Jurisdictional High Court in the case of Velayudhaswamy Spinning Mills v. ACIT (2010 (3) TMI 860 - Madras High Court ), directed the Assessing Officer to allow the assessee s claim of deduction under section 80IA of the Act. Thus, we find no infirmity in the order passed by the ld. CIT(A) - Decided in favour of assessee

Summary

Issues Involved:

1. Disallowance of export commission payment.
2. Disallowance under Section 14A of the Income Tax Act.
3. Disallowance under Section 80IA of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Disallowance of Export Commission Payment:

The first issue pertains to the disallowance of export commission payment. The assessee argued that the payments made to non-residents for procuring export orders were not subject to TDS under Section 195 of the Income Tax Act. The CIT(A) referenced a previous ITAT decision (in ITA No.225/Mds/2013 dated 30.05.2013) which held that such payments did not amount to managerial or technical services and were not taxable in India. Consequently, the provisions of Section 40(a)(i) were inapplicable. The CIT(A) also cited the Madras High Court decision in CIT v. Faizan Shoes P Ltd, which supported this view. The CIT(A) concluded that the export commission payments were not assessable to tax in India and thus, the assessee was not obligated to deduct TDS. As the Assessing Officer did not consider the amount of Rs. 25,63,409/- in the final computation of taxable income, no separate relief was required. The ITAT upheld this view, finding no infirmity in the CIT(A)'s order, and dismissed the assessee's ground of appeal.

2. Disallowance Under Section 14A of the Income Tax Act:

The second issue involves the disallowance under Section 14A related to the expenditure incurred in relation to income not includible in total income. The Assessing Officer disallowed Rs. 37,23,755/- by applying Section 14A read with Rule 8D, observing that the assessee had made significant investments and paid interest on term loans. The CIT(A) confirmed this disallowance, noting that the assessee did not maintain separate books for investments and used common funds (both interest-free and borrowed) for various expenses, including investments in shares. The CIT(A) emphasized that the disallowance should be based on the efforts made to earn exempt income, not the exempt income itself, and referred to the Special Bench decision in Cheminvest Ltd. v. ITO, which supported disallowance even if no exempt income was earned during the year. The ITAT upheld the CIT(A)'s order, rejecting the assessee's argument that no borrowed funds were used for investments, and confirmed the disallowance under Section 14A.

3. Disallowance Under Section 80IA of the Income Tax Act:

The third issue relates to the disallowance under Section 80IA concerning the deduction for profits from windmills. The CIT(A) followed the decision of the Jurisdictional High Court in Velayudhaswamy Spinning Mills v. ACIT and the ITAT decision in GRT Firms & Others, which held that depreciation already set off cannot be carried forward notionally for computing profits of windmills on a stand-alone basis. The CIT(A) directed the Assessing Officer to allow the assessee's claim for deduction under Section 80IA. The ITAT found no infirmity in the CIT(A)'s order and dismissed the Revenue's appeal.

Conclusion:

Both the appeals filed by the assessee and the Revenue were dismissed, with the ITAT upholding the CIT(A)'s findings on all issues. The orders were pronounced on May 29, 2015, at Chennai.