2017 (6) TMI 1177 - AT - Income Tax

Disallowance u/s 40(a)(ia) - non deduction of tds on the interest paid to NBFC(s) - as per assessee entire amount stood paid during the year itself and no amount remained outstanding as on 31.03.2011 - Whether the provisions of Section 40(a)(ia) shall be attracted when the amount is not payable to a contractor or sub-contractor but has been actually paid? - Held that - The Hon ble Supreme Court in the recent decision in the case of M/s Palam Gas Services Vs. CIT 2017 (5) TMI 242 - SUPREME COURT held that when the entire scheme of obligation to deduct the tax at source and paying it over to the Central Government is read holistically, it cannot be held that the word payable occurring in Section 40(a)(ia) refers to only those cases where the amount is yet to be paid and does not cover the cases where the amount is actually paid. If the provision is interpreted in the manner suggested by the appellant herein, then even when it is found that a person, like the appellant, has violated the provisions of Chapter XVIIB (or specifically Sections 194C and 200 in the instant case), he would still go scot free, without suffering the consequences of such monetary default in spite of specific provisions laying down these consequences. - Decided in favour of revenue

Summary

Issues Involved:
Delay in filing appeal seeking condonation, Disallowance of expenses under section 40(a)(ia) for non-deduction of TDS, Interpretation of Section 40(a)(ia) regarding TDS liability, Application of second proviso to section 40(a)(ia) for disallowance, Retrospective application of second proviso, Restoration of issues to Assessing Officer for verification.

Analysis:
1. Delay Condonation: The appeal was filed by the assessee due to a delay of 70 days, seeking condonation of the delay. The delay was condoned after hearing both sides, and the appeal was heard on its merits.

2. Disallowance under Section 40(a)(ia): The primary issue raised by the assessee was the disallowance of expenses under section 40(a)(ia) for not deducting TDS on interest paid to NBFC(s). The assessee argued that since the entire amount was paid during the year itself, no TDS liability should arise. However, the Tribunal dismissed this argument citing the recent Supreme Court decision in the case of M/s Palam Gas Services Vs. CIT, which clarified that Section 40(a)(ia) covers cases where the amount is paid, not just payable.

3. Interpretation of Section 40(a)(ia): The Tribunal analyzed the interpretation of Section 40(a)(ia) in light of the Supreme Court and High Court judgments. It emphasized that the liability to deduct TDS arises upon payment, not just liability to the payee. The Tribunal agreed with the views of the Punjab & Haryana, Madras, and Calcutta High Courts, overruling the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd.

4. Second Proviso Application: The assessee further contended that as per the second proviso to section 40(a)(ia), no disallowance could be made if the assessee was not treated as an assessee in default under section 201. The Tribunal decided to set aside this issue for verification by the Assessing Officer.

5. Retrospective Application: The Tribunal considered the retrospective application of the second proviso to section 40(a)(ia) and its clarificatory nature in reference to relevant judgments, including CIT Vs. Vatika Township Ltd. The issue of retrospective application was not conclusively decided, and the matter was referred back for verification.

6. Restoration for Verification: Grounds 1.2 and 1.3 of the appeal, related to the applicability of the second proviso and the retrospective nature of section 40(a)(ia), were restored back to the Assessing Officer for further verification.

In conclusion, the appeal was partly allowed for statistical purposes only, with specific issues referred back to the Assessing Officer for verification. The Tribunal's decision was based on a detailed analysis of the legal provisions, precedents, and arguments presented by both parties.