2010 (9) TMI 715 - HC - Income Tax

DTAA - TDS u/s 195(2) - Technical collaboration agreement - remittances to ESW - Deduction u/s 35AB - Held that the words lump sum as used before the word consideration in section 35AB, only exclude periodical or turnover based payments like royalty etc., and any one-time payment for the know-how would fall within the expression lump sum if it is fixed and specified in the agreement, although it may be payable in instalments Regarding section 41(1)(a) - Held that the reversal order by the Commissioner of Income-tax (Appeals) in appeal under section 248 against the orders under section 195(2) had not attained finality till much after the relevant assessment years, i.e., 1993-94, 1994-95 and 1995-96. The said reversal by the Com-missioner of Income-tax (Appeals) attained finality only on May 17, 1999, when the order of the Income-tax Appellate Tribunal rejecting the reference application of the Department under section 256(1) was served upon the assessee - Held that that the deduction under section 35AB was liable to be allowed in the relevant assessment years and the refund, consequent upon the reversal of the Assessing Officer s TDS orders under section 195 by the CIT (A), became liable to be added under section 41 only on and after May 17, 1999 when such reversal order attained finality to the knowledge of the assessee - Decided in the favour of assessee

Summary

Issues:
Assessment of income-tax on remittances under technical collaboration agreement, Deduction under section 35AB for taxes paid, Reversal of Assessing Officer's orders by Commissioner of Income-tax (Appeals), Prima facie adjustment under section 143(1)(a)(ii).

Assessment of income-tax on remittances under technical collaboration agreement:
The appeals involved assessment years 1993-94, 1994-95, and 1995-96 related to a technical collaboration agreement between the assessee and a foreign entity. The agreement required the assessee to acquire know-how by paying a lump sum consideration in instalments. The Assessing Officer directed the assessee to deduct TDS under section 195(2) of the Income-tax Act while remitting payments. The Commissioner of Income-tax (Appeals) allowed the assessee's appeal, stating that no income-tax was payable on the remittances. The Income-tax Department appealed to the Income-tax Appellate Tribunal, which eventually dismissed the appeals. The Tribunal's decision was communicated to the assessee in the financial year relevant to the assessment year 2000-01.

Deduction under section 35AB for taxes paid:
The main issue was whether the income-tax paid by the assessee under the collaboration agreement could be considered part of the lump sum consideration for acquiring know-how, thus eligible for deduction under section 35AB. The court held that the word "consideration" in section 35AB includes the entire obligation of the assessee, which in this case extended to not only the payment to the foreign entity but also to taxes like income-tax and research and development cess. The court referred to relevant case laws to support its decision and clarified that one-time payments for know-how, even if in instalments, fall under the expression "lump sum."

Reversal of Assessing Officer's orders by Commissioner of Income-tax (Appeals):
The court addressed whether the reversal of the Assessing Officer's orders by the Commissioner of Income-tax (Appeals) affected the deductions claimed by the assessee. It was determined that the reversal order's finality, communicated to the assessee in 1999, impacted the allowance of deductions under section 35AB. The court cited relevant case laws to support its decision and emphasized that the refund, consequent upon the reversal, became liable to be added under section 41 only after the finality of the reversal order.

Prima facie adjustment under section 143(1)(a)(ii):
Regarding the Assessing Officer's prima facie adjustments under section 143(1)(a)(ii), the court held that such adjustments are permissible only for claims with apparent incorrectness. The court ruled that debatable claims, such as the deduction claimed for income-tax as part of the lump sum consideration, should not be subject to prima facie adjustments. Relevant case laws were cited to support this decision.

In conclusion, the court dismissed the appeals of the Income-tax Department and allowed the appeal of the assessee based on the detailed analysis and interpretation of relevant provisions and case laws.