2015 (8) TMI 1398 - HC - Income Tax

TDS u/s 195 - TDS liability - nature of expenditure - Held that - The obligation to deduct tax under Section 195 can only arise if the sum paid is chargeable to tax under the Act. Reimbursement of expenses can never be subjected to tax as income. This is clear from the plain reading of the Section 195 of the Act. Besides it is also settled by the decision of this Court in CIT v. Siemens Aktiongesellschaft 2008 (11) TMI 74 - BOMBAY HIGH COURT . So far as Mr.Pinto s submission on behalf of the Revenue is concerned that the reimbursement of expenses is of estimated expenses. We find that the impugned order of the Tribunal on facts has held that the payment is only reimbursement of expenses. This finding of fact has not been shown to be perverse and / or arbitrary.

Summary

Issues:
1. Disallowance of overhead charges paid to non-resident holding company under Section 40(a)(i) of the Income Tax Act, 1961.
2. Justification for deleting the disallowance and ignoring the finding of the CIT(A) regarding the charges being an estimate.

Analysis:
1. The appeal filed by the Revenue challenged the order of the Income Tax Appellate Tribunal (the Tribunal) regarding the disallowance of overhead charges paid to a non-resident holding company under Section 40(a)(i) of the Income Tax Act, 1961 for Assessment year 2006-2007. The key questions raised were whether the charges were in the nature of fees for technical services and whether the charges were merely an estimate without a direct nexus with actual expenditure. The Tribunal held that the amounts paid were reimbursement of expenses and not subject to tax under Section 195 of the Act, thus disallowance under Section 40(a)(ia) was not justified.

2. The Respondent-assessee, a subsidiary of a Netherlands-based holding company, paid a sum to the holding company for expenses incurred without deducting tax. The Assessing officer disallowed the expenditure under Section 40(a)(ia) for failure to deduct tax. The Commissioner of Income tax (Appeals) upheld this decision, but the Tribunal overturned it, emphasizing that the payments were reimbursement of expenses as per the agreement between the parties. The Tribunal also noted that the expenses were confirmed to be without any profit component. The Tribunal's decision was based on factual findings and the legal position that reimbursement of expenses does not attract tax liability under Section 195 of the Act.

3. The Revenue argued that the expenses were estimated and lacked a direct nexus with actual expenditure, suggesting that the question raised by the Revenue should be considered. However, the Court found that all authorities had accepted the deduction of the amount paid as reimbursement but disallowed it due to the failure to deduct taxes. The Court reiterated that reimbursement of expenses is not taxable income and cited a previous judgment to support this position. The Court dismissed the appeal, stating that the Revenue's question did not raise any substantial legal issue, and no costs were awarded.

In conclusion, the judgment by the Bombay High Court upheld the Tribunal's decision, emphasizing that reimbursement of expenses to a holding company does not attract tax liability under Section 195 of the Income Tax Act, 1961. The Court rejected the Revenue's arguments regarding the nature of expenses being estimated and lacking a direct nexus with actual expenditure, affirming that the expenses were rightly treated as reimbursement without a tax deduction obligation.