2012 (8) TMI 307 - AT - Income Tax

Non deduction of tax at source - assessee providing data processing and other IT enabled services to M/s Hewlett Packard entities(Hong Kong ) - Held that - Considering the evidence in support the payments were purely reimbursement of expenses incurred by entities of the HP group worldwide on behalf of the Assessee which have been collated by HP,AP(HK). The details of sample employees like invoices for reimbursement made to sample employees have been given reveals the nature of reimbursement. The sample invoices filed depicts that the payments made by the assessee to HP, AP(HK) were reimbursement of actual expenses incurred by the entities of the HP Group on behalf of the assessee. No doubt, the agreement between the assessee and the HP,AP(HK) contemplates 10% mark up on the actual cost, but as far as the payments made during the previous year are concerned, no such mark up has been made and the disputed payments are purely reimbursement of actual expenses incurred with no income embedded in such payments - as decided in the case of Mahindra & Mahindra Ltd. v. Dy. CIT 2009 (4) TMI 207 - ITAT BOMBAY-H that in respect of reimbursement of expenses there is no obligation to deduct tax at source and there was no element of income involved in such payments - in favour of assessee.

Issues Involved:
1. Whether the payments made by the assessee to HP, AP(HK) were reimbursement of expenses with no element of income embedded.
2. Whether these payments were in the nature of fees for technical services (FTS) and thus chargeable to tax in India.
3. Whether the assessee was liable to deduct tax at source under Section 195 of the IT Act.
4. Whether the assessee can be treated as 'an assessee in default' under Section 201(1) of the IT Act.
5. Whether interest under Section 201(1A) of the IT Act can be levied on the assessee.

Detailed Analysis:

Issue 1: Reimbursement of Expenses
The assessee argued that the payments made to HP, AP(HK) were purely reimbursements for expenses such as relocation expenses, communication expenses, and employee awards, with no element of income embedded. The assessee provided detailed explanations and sample invoices to support this claim. The Tribunal noted that the evidence filed by the assessee demonstrated that the payments were indeed reimbursements of actual expenses incurred by HP, AP(HK) on behalf of the assessee. The Tribunal concluded that no income was embedded in these payments.

Issue 2: Nature of Payments as FTS
The Assessing Officer (AO) contended that the relocation expenses and employee awards were in the nature of fees for technical services (FTS). The AO argued that services like accommodation arrangement, logistics, and tax services provided by HP, AP(HK) fell under consultancy services, thus qualifying as FTS. However, since the Tribunal held that the payments were purely reimbursements, it did not consider the arguments regarding the nature of payments as FTS.

Issue 3: Obligation to Deduct Tax at Source
The AO held that the assessee should have deducted tax at source under Section 195 of the IT Act on the payments made to HP, AP(HK). The Tribunal referred to the Supreme Court's decision in GE India Technology Centre (P.) Ltd. v. CIT, which held that the liability to deduct tax arises only if the remittances contain income chargeable to tax. Since the Tribunal found that the payments were reimbursements with no income element, it concluded that there was no obligation to deduct tax at source.

Issue 4: Assessee in Default under Section 201(1)
The CIT(A) had treated the assessee as 'an assessee in default' under Section 201(1) for not deducting tax at source. The Tribunal, however, held that since the payments were reimbursements with no income element, the assessee could not be treated as 'an assessee in default'.

Issue 5: Levy of Interest under Section 201(1A)
The CIT(A) had also levied interest under Section 201(1A) on the tax due, consequent to the assessee being treated as 'an assessee in default'. The Tribunal, having concluded that the assessee was not liable to deduct tax at source, held that the levy of interest under Section 201(1A) could not be sustained.

Conclusion:
The Tribunal allowed the appeals filed by the assessee, concluding that the payments made to HP, AP(HK) were purely reimbursements of expenses with no element of income embedded. Consequently, the assessee was not obligated to deduct tax at source and could not be treated as 'an assessee in default' under Section 201(1). The levy of interest under Section 201(1A) was also not sustained.

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