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2012 (6) TMI 452 - AT - Income TaxDTAA between India and USA - remittance of professional fees to KPMG LLP USA being treated as Royalty under Article 12 of DTAA - assessee engaged the services of KPMG Dallas to provide consultancy services and conduct negotiations with the potential parties in connection with consultancy to be given to Essar Oil Ltd for sale of its energy business - dis-allowance u/s 40(a)(ia) - Held that - Impugned services were purely a professional service for consultancy which were rendered outside India and not for supply of scientific technical industrial or commercial knowledge or information. Thus nature of payment do not fall within the meaning of Article 12 and therefore there was no liability to deduct TDS and consequently dis-allowance made u/s 40(a)(ia) is uncalled for. Similarly in the case of payment made to KPMG Canada were also purely for professional services and reimbursement of expenses which in any manner does not fall under Article 12. Thus on such payment also there was no liability to deduct TDS and consequently Section 40(ia) will not be applicable - Decided in favor of assessee. Bad debts - dis-allowance of professional fees and expenses not recoverable from clients claimed as Bad debts on ground of insufficient evidences placed on record - Held that - After the amendment w.e.f. 1st April 1989 it is not necessary for assessee to establish that the debt in fact has become irrecoverable it is sufficient that the assessee has written off the bad debts in the account and the same has to be allowed. See T.R.F. Limited Vs. CIT (2010 (2) TMI 211 - SUPREME COURT ) - Deduction allowed - Decided in favor of assessee. Ad-hoc dis-allowance of 10% of sum paid as support service charges and professional fees to KCPL and KPMG u/s 40A(2)(b) - Held that - In present case AO has neither inquired nor brought anything on record to show that the payment is excessive as compared to unrelated parties or it was not for the legitimate needs of the business or profession of the assessee. The same does not seem to have been doubted. Thus this matter is restored back to the file of the AO for verification and decision accordingly. Dis-allowance u/s 43B - contribution to the EPF - assessee contended allowance of expenditure in view of the second proviso to section 43B - Held that - Since in present case payments have been made before the due date of filing of a return hence in view of omission of second proviso to Section 43B and the amendment of first proviso by the Finance Act 2003 being retrospectively effective from 1st April 1988 dis-allowance is deleted. See CIT Vs. Alom Extrusions Ltd.(2009 (11) TMI 27 (SC)) - Decided in favor of assessee.
Issues Involved:
1. Disallowance of bad debts claimed by the assessee. 2. Ad hoc disallowance under Section 37(1) read with Section 40A(2)(b) for professional fees paid. 3. Disallowance under Section 43B for late payment of Provident Fund contributions. 4. Disallowance under Section 40(a)(i) for payments made to foreign parties without TDS. Issue-wise Detailed Analysis: 1. Disallowance of Bad Debts: Summary: The assessee challenged the disallowance of Rs. 12,18,732/- claimed as bad debts. The Assessing Officer (AO) disallowed the claim, stating the write-off was not bona fide. The CIT(A) upheld the AO's decision. However, the Tribunal referred to the Supreme Court decision in T.R.F. Limited v. CIT, which clarified that post-1st April 1989, it is sufficient if the bad debt is written off as irrecoverable in the accounts of the assessee. Accordingly, the Tribunal allowed the assessee's claim for bad debts. Keywords and Sentences: - "The assessee has written off in the books of account Rs. 12,18,732/- as bad debts." - "It is sufficient that the assessee has written off the bad debts in the account and the same has to be allowed." - "Following the law settled by the Hon'ble Supreme Court in the aforesaid case, we hold that the claim of bad debts for a sum aggregating Rs. 12,18,732/- is allowable." 2. Ad Hoc Disallowance under Section 37(1) read with Section 40A(2)(b): Summary: The assessee contested the ad hoc disallowance of Rs. 42,20,000/- for professional fees paid to KPMG entities. The AO disallowed 10% of the fees paid, citing lack of verifiable details. The CIT(A) partially upheld this but excluded reimbursement costs. The Tribunal found that the AO did not provide material evidence to justify the disallowance and remanded the matter back to the AO to verify if similar payments were made to unrelated parties at similar rates. Keywords and Sentences: - "The assessee company had made a payment of Rs. 4,12,00,000/- to KCPL as professional fee." - "The Assessing Officer rejected the contention of the assessee on the ground that the assessee has failed to furnish any particular which would throw light on the exact nature of work done." - "We find that it would be proper that the matter is restored back to the Assessing Officer." 3. Disallowance under Section 43B for Late Payment of Provident Fund Contributions: Summary: The assessee challenged the disallowance of Rs. 1,12,404/- under Section 43B for late payment of Provident Fund contributions. The CIT(A) dismissed the additional ground, citing the amendment to Section 43B effective from 1st April 2004. The Tribunal, referring to the Supreme Court decision in CIT v. Alom Extrusions Ltd., allowed the deduction, noting that the amendment was retrospective and payments were made before the due date of filing the return. Keywords and Sentences: - "The learned CIT(A) dismissed the additional ground as not admitted." - "The Hon'ble Supreme Court concluded that the omission of second proviso to Section 43B and the amendment of first proviso by the Finance Act, 2003, bringing about uniformity in payment of tax duty, cess and fee on one hand and contribution to employees welfare funds on the other are curative in nature and thus, is effective retrospectively from 1st April, 1988." - "Thus, the disallowance of Rs. 1,12,404/- is deleted." 4. Disallowance under Section 40(a)(i) for Payments Made to Foreign Parties Without TDS: Summary: The department appealed against the CIT(A)'s direction to allow payments made to foreign parties without TDS. The AO had disallowed these payments, treating them as royalties under Section 9(1)(vi) and relevant DTAA provisions. The CIT(A) held that the payments were not royalties and were for professional services rendered outside India. The Tribunal upheld the CIT(A)'s decision, noting that the payments did not fall under the definition of royalties and thus, no TDS was required. Keywords and Sentences: - "The assessee company had made the following payments to non-residents towards professional charges for services rendered and for reimbursement of expenses." - "The CIT(A) agreed with the contention of the assessee and held that the payments were not in the nature of royalties either under Section 9(1)(vi) or under respective DTAAs." - "Thus, nature of payment do not fall within the meaning of Article 12 and, therefore, there was no liability to deduct TDS." Conclusion: The Tribunal allowed the assessee's claims for bad debts and Provident Fund contributions, remanded the issue of professional fees for further verification, and upheld the CIT(A)'s decision on payments to foreign parties without TDS. The appeals were partly allowed for statistical purposes.
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