2016 (8) TMI 1332 - AT - Income Tax

Short deduction of tax u/s 194D - TDS on service tax deposited on behalf of agent - demand raised under section 201(1)/201(1A) - Held that - As in assessment year 2008 09 to 2010 11 2016 (5) TMI 1254 - ITAT MUMBAI his predecessor in office has dealt with the issue while deciding the appeal preferred by the assessee and decided the issue holding that the assessee is not required to deduct tax at source under section 194D on the service tax component followed the same and deleted the demand raised by the Assessing Officer. As the issue in dispute is squarely covered by the aforesaid observations of the co ordinate bench in assessee s own case respectfully following the same we uphold the order of the learned Commissioner (Appeals).

Summary

Issues Involved:
1. Deletion of demand raised under section 201(1)/201(1A) for short deduction of tax under section 194D.
2. Deletion of demand raised for short deduction of tax under section 194C in respect of payment made towards outsourcing expenses.
3. Deletion of addition under section 201(1)/201(1A) for short deduction of tax on payment of data storage expenses.

Issue-wise Detailed Analysis:

1. Deletion of demand raised under section 201(1)/201(1A) for short deduction of tax under section 194D:

The department challenged the decision of the learned Commissioner (Appeals) in deleting the demand raised on account of short deduction of tax under section 194D. The Assessing Officer noted that the assessee had deducted TDS on the commission paid to agents without considering the corresponding service tax of the commission amount. Despite the assessee's submission that the learned Commissioner (Appeals) had deleted similar additions for previous assessment years, the Assessing Officer raised a demand under section 201(1) amounting to Rs. 4,65,21,907 and levied interest of Rs. 1,36,40,926 under section 201(1A).

The learned Commissioner (Appeals) followed his predecessor's decision and deleted the demand, holding that the assessee is not required to deduct tax at source under section 194D on the service tax component. The Tribunal upheld this decision, referring to its earlier order which clarified that TDS is required to be deducted only on the income component and not on the service tax, as service tax does not form part of the income of the assessee. The Tribunal cited relevant provisions and circulars, including CBDT Circular No. 4/2008 and Circular No. 1/2014, which support this interpretation.

2. Deletion of demand raised for short deduction of tax under section 194C in respect of payment made towards outsourcing expenses:

The Assessing Officer noticed that the assessee deducted tax on payments for outsourcing expenses under section 194C instead of section 194J. The assessee argued that the services rendered were contractual and not technical or professional, thus justifying the application of section 194C. The learned Commissioner (Appeals) agreed with the assessee, following his order from previous years, and deleted the addition.

The Tribunal upheld this decision, noting that the services outsourced by the assessee, such as data storage, call center operations, and document management, were clerical and administrative in nature and did not require technical or professional expertise. The Tribunal emphasized that these services were simple and repetitive, supporting the application of section 194C rather than section 194J.

3. Deletion of addition under section 201(1)/201(1A) for short deduction of tax on payment of data storage expenses:

The Assessing Officer raised a demand for short deduction of tax on payments made to M/s. Writers for data storage charges, applying section 194J instead of section 194C. The assessee contended that the work involved was contractual and did not involve professional or technical services. The learned Commissioner (Appeals) deleted the demand, following his decisions from previous years.

The Tribunal upheld this decision, agreeing that the nature of the services provided did not require technical or professional expertise and were correctly subjected to TDS under section 194C. The Tribunal reiterated its stance from earlier cases involving the assessee, confirming that the deletion of the addition was appropriate.

Conclusion:

The Tribunal dismissed the department's appeal, upholding the decisions of the learned Commissioner (Appeals) on all grounds. The Tribunal's reasoning was consistent with previous rulings, emphasizing that TDS should be deducted based on the nature of the income and not on components such as service tax, and that the services in question were correctly categorized under section 194C. The appeal was pronounced dismissed in the open Court on 19.08.2016.