2010 (10) TMI 682 - AT - Income Tax

Applicability of section 40(a)(ia) - TDS u/s 194J - Fees for technical services - service support to the customers, i.e., the purchasers of the products by XIL, which includes services during the warranty period and comprehensive services thereafter, which are undertaken by it on the basis of various agreements with the customers, viz., Full Service Maintenance Agreement (FSMA), Spares and Service Maintenance Agreement (SSMA). - Held that - Tribunal, being not a court of law, cannot read down a statutory provision. There is no gain saying that our decision is based on the premises of the constitutional validity of the provision, and if this condition is not found to obtain, it shall consequentially fail. - The assessee has itself classified the same in its books as technical fees - The argument of no loss of revenue (to the Revenue) is not valid as the provision is a substantive provision of law which is unambiguous and clear in its intent and scope. - Decided against the assessee.

Issues Involved:
1. Applicability of section 40(a)(ia) of the Income-tax Act, 1961.
2. Nature of payments made by the assessee to Xerox India Ltd. (XIL).
3. Whether the payments qualify as 'fees for technical services' under section 194J.
4. Argument of no loss of revenue to the Revenue.
5. Existence of reasonable cause for non-deduction of tax at source.
6. Consistency in application of section 40(a)(ia) in previous assessment years.

Detailed Analysis:

1. Applicability of section 40(a)(ia) of the Income-tax Act, 1961:
The primary issue for adjudication is whether the provisions of section 40(a)(ia) are applicable to the payments made by the assessee to XIL. Section 40(a)(ia) mandates the disallowance of certain expenditures if tax is not deducted and paid as required under Chapter XVII-B of the Act. The section covers payments such as commission, brokerage, fees for technical services, professional services, contract payments, rent, and royalty.

2. Nature of payments made by the assessee to Xerox India Ltd. (XIL):
The assessee, a dealer for XIL, paid Rs. 14,77,860 termed as 'Technical fees' to XIL without deducting tax at source. The assessee argued that these payments were to compensate XIL for the loss of revenue due to outsourcing service contracts and not for technical services. However, the Revenue authorities contended that these payments were either for technical services or contractual obligations, both of which are subject to section 40(a)(ia).

3. Whether the payments qualify as 'fees for technical services' under section 194J:
The agreement between the assessee and XIL, specifically the Service Provider Agreement (SPA), outlined that the payments were for technical support services provided by XIL. The Tribunal examined the SPA and found that the payments were indeed for technical services as defined under section 9(1)(vii) and section 194J. The services included training, technical support, and maintenance manuals, which are technical in nature.

4. Argument of no loss of revenue to the Revenue:
The assessee argued that there was no loss of revenue due to non-deduction of tax at source. The Tribunal dismissed this argument, stating that the provision is a substantive law and its application is not contingent on whether there was a loss of revenue. The Tribunal emphasized that compliance with section 40(a)(ia) is mandatory and not subject to the ultimate tax liability of the recipient.

5. Existence of reasonable cause for non-deduction of tax at source:
The assessee claimed that the non-deduction of tax was due to an honest belief that the payments were not subject to tax deduction. The Tribunal found no reasonable cause for the non-deduction, noting that the assessee had classified the payments as 'technical fees' in its accounts and had received invoices from XIL for technical support services. The Tribunal concluded that a reasonable person would have deducted tax at source under these circumstances.

6. Consistency in application of section 40(a)(ia) in previous assessment years:
The assessee contended that section 40(a)(ia) was not applied in previous assessment years despite similar arrangements. The Tribunal rejected this argument, stating that the principle of res judicata does not apply to income tax proceedings and there is no estoppel against the law. The Tribunal maintained that each assessment year is independent and compliance with the law is required for each year.

Conclusion:
The Tribunal upheld the order of the Revenue authorities, confirming the disallowance of the payments under section 40(a)(ia) due to non-deduction of tax at source. The assessee's appeal was dismissed.

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