2013 (3) TMI 756 - AT - Income Tax

Disallowance for non-deduction/ non-payment of TDS u/s 40(a)(ia) - TDS on Non- Resident Payments u/s 195 - Amount was paid by the assessee to its holding company in Netherlands, which was in turn paid by the holding company to trainers for providing training to assessee's employees. AO observed that the provisions of s.195 were attracted in respect of such payment, for which assessee was required to deduct tax at source before remitting the said payment, which it did not. AO made the disallowance invoking the provisions of s. 40(a)(ia). - HELD THAT - For invoking the provisions of s. 40(a)(ia), it is of paramount importance to ascertain the chargeability of the amount to tax in the hands of such trainers who were eventual receivers. Otherwise, the provisions of section 195 cannot apply and ex consequenti, the application of s. 40(a)(ia) is ruled out. AO directed to decide the question of chargeability then decide the whether s. 40(a)(ia) applies or not. - Matter restored back.

Summary

Issues:
1. Disallowance under section 40(a)(ia) for reimbursement of expenses to holding company.
2. Disallowance under section 40(a)(ia) for training expenses paid to holding company.

Issue 1: Disallowance under section 40(a)(ia) for reimbursement of expenses to holding company:

The assessee appealed against the disallowance of Rs. 34,94,816 by the AO under section 40(a)(ia) of the Income-tax Act, 1961. The payment was made to the holding company towards reimbursement of expenses without deducting tax at source. The Tribunal observed that the expenses were incurred by the holding company on behalf of the assessee as per an agreement. The agreement clearly stated that the expenses did not include any profit element. The Tribunal emphasized that for disallowance under section 40(a)(ia), the payment should be liable for tax deduction at the source, which is only applicable if the amount paid contains an income element. Since the reimbursement did not include any profit element and was not taxable in the hands of the recipient, the disallowance under section 40(a)(ia) was not justified. The Tribunal overturned the CIT(A)'s decision on this issue.

Issue 2: Disallowance under section 40(a)(ia) for training expenses paid to holding company:

The second issue involved a disallowance of Rs. 15,44,700 under section 40(a)(ia) for training expenses paid to the holding company. The Tribunal noted that the training was provided to the assessee's employees by independent trainers arranged by the holding company. The Tribunal held that payments made to the holding company for subsequent payment to third parties could not be considered as reimbursement of expenses to exempt it from tax deduction at source. The Tribunal emphasized that the crucial factor for disallowance under section 40(a)(ia) is the chargeability of the amount to tax in the hands of the recipient. Since the taxability of the amount in the hands of the trainers was not discussed in the assessment, the Tribunal set aside the decision and directed the AO to determine the taxability of the amounts paid to the trainers before applying section 40(a)(ia). The assessee was granted a reasonable opportunity to present their case in the fresh proceedings.

In conclusion, the Tribunal partly allowed the appeal, overturning the disallowance under section 40(a)(ia) for reimbursement of expenses to the holding company but remanding the decision on the disallowance for training expenses paid to the holding company for further assessment.