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2011 (3) TMI 202 - AT - Income TaxDisallowance - It was in the knowledge of the assessee that they have to bear the withholding tax liability even though Tata Elxsi has appointed DLF, a non resident concern for executing the work - it is clear that what is being paid by the Indian resident payer, be it TATA Elxsi or the assessee when they reimburse TATA Elxsi, is only the income of the Non Resident payable as tax to the India Government - Held that - Whenever Payer bears the withholding tax, such amount is deemed to be the income of the assessee and the tax to be paid is grossed up - TDS borne by the Resident Indian payer is to be deemed as the income of the recipient and it is only out such income of the recipient, the Indian Payer is deemed to withhold the TDS at the appropriate rates and pay to the Government - what the Indian payer deposits to the Government cannot be construed as tax of the Non-resident being borne by the Indian Resident Payer, but the amount paid is only out of the deemed income of the recipient - In the result the appeal filed by the assessee is allowed
Issues involved:
1. Disallowance of special effect expenditure under section 40(a)(ii) of the Income-tax Act, 1961. Detailed Analysis: Issue 1: Disallowance of special effect expenditure under section 40(a)(ii) of the Income-tax Act, 1961 The case involved a dispute regarding the disallowance of special effect expenditure claimed by the assessee under section 40(a)(ii) of the Income-tax Act, 1961. The Assessing Officer (AO) disallowed the claim as the payment of withholding tax was considered as part of the special effect cost, which was not allowable under the said provision. The AO emphasized that the nature of the payment does not change even if it is made by a third party, and the sum paid was deemed as tax paid by the assessee on behalf of another party. The AO relied on the specific provisions of section 40(a)(ii) to disallow the claimed expenditure. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, stating that the agreement with Tata Elxsi clearly mentioned that all taxes, including withholding tax, had to be borne by Dharma Productions. The CIT(A) emphasized that section 40(a)(ii) prohibits the deduction of any sum paid on account of any tax levied on the profits or gains of the business, without any exemption provided in the provision. The CIT(A) concluded that the tax liability of DLF/Tata Elxsi, paid by the assessee, was impermissible under the Act. In the appeal before the Appellate Tribunal, the assessee contended that the amount paid as withholding tax was part of the agreed fees payable to Tata Elxsi and should be considered as an allowable deduction. The assessee argued that the tax liability borne by Tata Elxsi for a non-resident subcontractor was not the assessee's contractual obligation, and hence, the payment should not be disallowed under section 40(a)(ii). The Tribunal analyzed various legal precedents and provisions of the Income-tax Act. It referred to the Madras High Court judgment, emphasizing that the amount reimbursed to Tata Elxsi by the assessee was only the income of the non-resident payable as tax to the Indian Government, which did not fall within the definition of tax on income for disallowance under section 40(a)(ii). The Tribunal further highlighted that the tax borne by the Indian payer was deemed as the income of the recipient, and the amount deposited to the Government was from the recipient's deemed income. Consequently, the Tribunal allowed the assessee's appeal and deleted the disallowance of the special effect expenditure. Therefore, the Tribunal ruled in favor of the assessee, holding that the reimbursement of withholding tax paid by Tata Elxsi was not subject to disallowance under section 40(a)(ii) of the Income-tax Act, 1961. This detailed analysis covers the issues involved in the legal judgment comprehensively.
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