2011 (8) TMI 351 - AT - Income Tax

Revision u/s 263 - Appeal against order of AO pursuant to direction of CIT - Powers of AO - Held that - Once the issue has been decided and definite finding has been given by the Commissioner of Income-tax in respect of disallowance of expenditure under section 40(a) then the Assessing Officer had no discretion to take any different view on the issue. - the direction of the CIT to ITO to determine the relief under section 80J after giving an opportunity of being heard to the assessee - when the CIT while passing 263 order has given a definite finding on the issue of disallowance of Bandwidth charges under section 40(a) and the said order has attained the finality on account of not challenge by the assessee then the assessee can t be allowed to challenge such definite finding in an appeal filed against the orders passed by the Assessing Officer in pursuant to the revision order under section 263. Irrecoverable interest and advances/deposits - claim of bad debts - Inter corporte deposits - The assessee contention before the lower authority was that the company from which the interest was receivable discontinued the operation after 31-3-2001 and vanished - The Directors of the debtor company were also not available - The CIT(A) has given a finding that the assessee has extended money as Inter Corporate Deposit (ICD) to Digital Super Highway which is a group company of the assessee - Claim of bad debs rejected.

Issues Involved:
1. Disallowance of Bandwidth charges under section 40(a) due to non-deduction of TDS.
2. Disallowance of irrecoverable interest and business advances written off.
3. Deletion of disallowance of bad debts.
4. Deletion of addition on account of subscription income.

Issue-wise Detailed Analysis:

1. Disallowance of Bandwidth charges under section 40(a) due to non-deduction of TDS:
The assessee challenged the disallowance of Rs. 3,59,01,115 under section 40(a) for Bandwidth charges made to a non-resident company without TDS deduction. The CIT(A) upheld the disallowance, categorizing Bandwidth charges as technical services/royalty, thus requiring TDS under section 195. The CIT's order under section 263, which was not challenged by the assessee, had already settled this issue, affirming that the payments were for technical services and subject to TDS. The Tribunal noted that the CIT's findings had attained finality, and as per the jurisdictional High Court's decision in Herdillia Chemicals Ltd., the assessee could not challenge this issue in appeal. Therefore, the Tribunal dismissed the appeal on this ground.

2. Disallowance of irrecoverable interest and business advances written off:
The assessee claimed bad debts, including irrecoverable interest of Rs. 68.12 lakhs and business advances of Rs. 4.15 lakhs. The CIT(A) upheld the disallowance of these amounts, noting that the interest was due from a group company, Digital Super Highway, which had discontinued operations. The Tribunal agreed with the CIT(A) that the assessee failed to demonstrate the bona fide nature of the write-off, thus dismissing the appeal regarding the interest write-off. However, for the business advances, the Tribunal remanded the issue to the Assessing Officer for reconsideration, requiring further examination of the details provided by the assessee.

3. Deletion of disallowance of bad debts:
The revenue challenged the deletion of Rs. 5,69,19,203 in bad debts written off by the CIT(A). The Tribunal upheld the CIT(A)'s decision, citing the Supreme Court's ruling in TRF Ltd. that a debt written off as irrecoverable in the accounts is sufficient for deduction, and the assessee need not prove the debt has actually gone bad. The Tribunal found no reason to interfere with the CIT(A)'s order, thus dismissing the revenue's appeal on this ground.

4. Deletion of addition on account of subscription income:
For the assessment year 2006-07, the revenue contested the deletion of an addition of Rs. 5,57,81,59,748 in subscription income. The Tribunal referred to its previous decisions in the assessee's own case for earlier years, where similar additions based on estimated subscribers were deleted. The Tribunal noted that the revenue had not brought any new evidence to contradict these findings. Consequently, the Tribunal upheld the CIT(A)'s deletion of the addition, dismissing the revenue's appeal.

Conclusion:
The Tribunal dismissed the assessee's appeal regarding the disallowance of Bandwidth charges and the revenue's appeals concerning the disallowance of bad debts and subscription income. The Tribunal partly allowed the assessee's appeal by remanding the issue of business advances written off to the Assessing Officer for further examination.

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