2011 (9) TMI 280 - AT - Income Tax

TDS u/s 194J - legal and professional fees, photography charges and bandwidth charges paid to the overseas parties - Held that - as held by Hon ble Supreme Court in the case of GE India Technology Centre Pvt Ltd. v. CIT (2010 -TMI - 77380 - SUPREME COURT OF INDIA), tax deduction at source obligations under section 195(1) arise only if the payment is chargeable to tax in the hands of non-resident recipient. Therefore, merely because a person has not deducted tax at source from a remittance abroad, it cannot be inferred that the person making the remittance has committed a failure in discharging his tax withholding obligations because such obligations come into existence only when recipient has a tax liability in India. - the ends of justice will be met by remitting the matter to the file of the Assessing Officer for examining, on merits, the taxability of these payments in the hands of the recipients, and with a direction to restrict the disallowance under section 40(a)(i) in respect of only such cases, if any, where the amounts remitted abroad have been held to be chargeable to Indian Income-tax Act.

Issues Involved:
1. Disallowance under section 40(a)(i) for non-deduction of tax at source on payments to non-residents.
2. Disallowance under section 40(a)(ia) for non-deduction of tax at source on editorial and other expenses.
3. Disallowance of software and product development expenses.

Issue-wise Detailed Analysis:

1. Disallowance under section 40(a)(i) for non-deduction of tax at source on payments to non-residents:

The Assessing Officer (AO) disallowed Rs. 3,04,03,553 under section 40(a)(i) for payments made to non-residents without deducting tax at source as required under section 195(1). The AO argued that tax should have been deducted even if there were doubts about the taxability of these payments, citing the Tribunal's decision in Arthur Anderson & Co. The CIT(A) deleted the disallowance, stating there was no finding that the income of non-residents was taxable in India, and the assessee had obtained a chartered accountant's certificate certifying non-taxability. The Tribunal noted that tax deduction at source under section 195(1) arises only if the payment is chargeable to tax in the hands of the non-resident recipient, as held by the Supreme Court in GE India Technology Centre Pvt Ltd. The Tribunal held that the AO must first establish the tax liability of the recipient before invoking disallowance under section 40(a)(i). The Tribunal remitted the matter back to the AO to examine the taxability of these payments in the hands of the recipients and restrict disallowance only if the amounts are chargeable to tax under Indian law.

2. Disallowance under section 40(a)(ia) for non-deduction of tax at source on editorial and other expenses:

The AO disallowed Rs. 53,12,824 under section 40(a)(ia) for non-deduction of tax at source and lack of complete details to verify the expenses. The CIT(A) remitted the matter to the AO for verification of tax deduction obligations. The Tribunal upheld the CIT(A)'s decision, noting that the expenses were for editorial and other content on the website and the AO had not disputed the business purpose of these expenses. The Tribunal found no reason to interfere with the CIT(A)'s conclusion and dismissed the AO's ground.

3. Disallowance of software and product development expenses:

The AO disallowed Rs. 1,91,60,012 for software usage and product development charges, contending these were capital expenses. The CIT(A) deleted Rs. 63,74,486 of the disallowance, considering them routine and periodic expenses like annual maintenance contracts and technical support. The Tribunal upheld the CIT(A)'s decision, noting that no new assets were created, and no enduring advantage was gained by the assessee. The Tribunal found the expenses to be of routine nature and dismissed the AO's ground.

Conclusion:

The Tribunal allowed the appeal partly for statistical purposes, remitting the matter to the AO to examine the taxability of payments to non-residents and restricting disallowance under section 40(a)(i) accordingly. The Tribunal upheld the CIT(A)'s decisions on disallowances under section 40(a)(ia) and software and product development expenses, dismissing the AO's grounds on these issues.

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