2016 (8) TMI 1256 - AT - Income Tax

Revision u/s 263 - issues were not properly inquired by the A.O. vis - vis Section 40(a)(ia) as well as TDS - Held that - As seen to a specific query raised during the assessment proceedings, the assessee has given a specific reply which was accepted by the A.O. The Hon ble Bombay High Court in the case of Gabrial India Ltd. 1993 (4) TMI 55 - BOMBAY High Court has held that if the Assessing Officer has raised queries and the assessee has filed written submissions/explanation, merely because there is no discussion in the Assessment Order on the relevant issue, it cannot be said that such order becomes erroneous. Similar view has been taken by the Rajasthan High Court in the case of Ganpat Ram Bishnoi 2005 (8) TMI 106 - RAJASTHAN High Court . We find that the Principal CIT has laid emphasis on the amended provisions of Section 263 wherein the explanation has been inserted. The same was emphasized by the ld. D.R. during the course of his arguments. The Hon ble High Court of Delhi in the case of Anil Kumar Sharma 2010 (2) TMI 75 - DELHI HIGH COURT has explained that there is a distinction between lack of inquiry and inadequate inquiry . If there was any inquiry, even inadequate that would not by itself give occasion to the Commissioner to pass orders under section 263 of the Act, merely because he has a different opinion in the matter. The assessment order reveals that on verification of submission made by the assessee, the A.O. has made addition of ₹ 3,43,700/- u/s. 40(a)(ia) of the Act. Therefore, it cannot be said that the Assessing Officer overlooked the provisions of Section 40(a)(ia) of the Act as alleged by the ld. Principal Commissioner in his order made u/s. 263 of the Act. Principal CIT had no occasion to invoke the provisions of Section 263 of the Act insofar as payments to CLP Asia is concerned. - Decided in favour of assessee. Interest paid on Foreign Currency Loan - Held that - To a specific query, a specific reply was filed by the assessee along with supporting evidences. For the detailed reasons mentioned hereinabove, we find that insofar as this issue is concerned, once again the ld. Principal CIT erred in assuming the jurisdiction by invoking the provisions of Section 263 of the Act. Considering the facts in totality as discussed hereinabove, in our considered opinion, the assumption of jurisdiction u/s. 263 of the Act is uncalled for. We, accordingly, quash the order of the ld. Principal CIT made u/s. 263 of the Act. TDS on Registration Fees to IREDA - tds u/s 194J - Held that - The payment of Registration Fees by any stretch of imagination cannot be construed as Professional Fees or FTS. In our considered opinion, the ld. Principal CIT has wrongly assumed the applicability of Section 194J of the Act on the impugned payment of Registration Fees. Therefore, the assumption of power vested upon him u/s. 263 of the Act is uncalled for and unwarranted on the facts of this issue. Assessee appeal allowed.

Summary

Issues Involved:
1. Validity of the notice issued under section 263 of the Income Tax Act.
2. Jurisdiction of the Principal Commissioner of Income Tax (CIT) under section 263.
3. Deduction of Tax at Source (TDS) on payments made to CLP Asia Services.
4. Applicability of Section 40(a)(ia) of the Income Tax Act.
5. Deduction of TDS on interest payments to Kreditanstallt Fur Wiederaufbau (KFW), Germany.
6. Applicability of Section 194J on registration fees paid to Indian Renewable Energy Development Agency Ltd. (IREDA).

Issue-wise Detailed Analysis:

1. Validity of the Notice Issued Under Section 263:
The Assessee contended that the notice issued by the Principal Commissioner under section 263 of the Act and the consequent order passed was void and without jurisdiction. The Tribunal examined whether the Principal Commissioner rightly assumed power under section 263, referencing the Supreme Court’s ruling in Malabar Industrial Co. Ltd. 243 ITR 83, which stipulates that the Commissioner must be satisfied that the order is erroneous and prejudicial to the interests of the Revenue.

2. Jurisdiction of the Principal Commissioner of Income Tax Under Section 263:
The Tribunal evaluated if the Principal Commissioner had the jurisdiction to invoke section 263. It was noted that for the assumption of jurisdiction under section 263, twin conditions must be met: the order must be erroneous and prejudicial to the interests of the Revenue. The Tribunal found that the Principal Commissioner’s assumption of jurisdiction was not justified as the Assessing Officer (A.O.) had conducted inquiries and the Assessee had provided specific replies.

3. Deduction of Tax at Source (TDS) on Payments Made to CLP Asia Services:
The Principal Commissioner observed that the Assessee failed to deduct TDS on payments made to CLP Asia Services, British Virgin Island, amounting to ?108.47 lakhs for SAP Service Charges. The Assessee provided evidence that TDS was deducted, and the Tribunal found that the A.O. had accepted the Assessee’s explanation. The Tribunal cited the Bombay High Court ruling in Gabrial [India] Ltd. 203 ITR 108, stating that if the A.O. has raised queries and the Assessee has provided explanations, the absence of discussion in the Assessment Order does not render it erroneous.

4. Applicability of Section 40(a)(ia) of the Income Tax Act:
The Principal Commissioner believed that the A.O. failed to invoke Section 40(a)(ia), leading to under-assessment. The Tribunal found that the A.O. had considered the provisions of Section 40(a)(ia) and made an addition of ?3,43,700/- under this section. Therefore, the Tribunal concluded that the Principal Commissioner had no occasion to invoke Section 263 regarding payments to CLP Asia.

5. Deduction of TDS on Interest Payments to Kreditanstallt Fur Wiederaufbau (KFW), Germany:
The Principal Commissioner noted that no TDS was deducted on interest payments to KFW, Germany, amounting to ?170.13 lakhs. The Assessee argued that the interest payment was exempt under the Double Taxation Avoidance Agreement (DTAA) between India and Germany and provided supporting evidence. The Tribunal found that the A.O. had raised specific queries, and the Assessee had provided detailed replies with evidence. The Tribunal concluded that the Principal Commissioner erred in invoking Section 263 for this issue.

6. Applicability of Section 194J on Registration Fees Paid to Indian Renewable Energy Development Agency Ltd. (IREDA):
The Principal Commissioner believed that the registration fee paid to IREDA attracted provisions of Section 194J. The Assessee argued that the payment was for Generation Based Incentive and did not attract Section 194J. The Tribunal examined Section 194J and its explanation, concluding that the registration fee could not be construed as Professional Fees or Fees for Technical Services (FTS). Therefore, the Tribunal found that the Principal Commissioner wrongly assumed the applicability of Section 194J.

Conclusion:
The Tribunal quashed the orders of the Principal Commissioner made under Section 263 of the Act, concluding that the assumption of jurisdiction was uncalled for and unwarranted. The appeals filed by the Assessee were allowed, and the orders were pronounced in open court on 29-08-2016.