2013 (4) TMI 601 - AT - Income Tax

Disallowance u/s 40 (a)(ia) On the amount paid by the assessee to the consolidator for transfer of rights - As per revenue the payment as consolidation charges had been made without deduction of TDS and the consolidator was working as an agent of the assessee and, hence, made contraventions of provision of Section 40(a)(ia). Held that The matter, it is seen, is squarely covered in favour of the assessee by Finian Estates Developers (P) Ltd 2012 (6) TMI 705 inasmuch as in that case, the very same agreement as the one under consideration herein, was at issue. Thus, finding merit in the grievance sought to be raised by the assessee, the same is accepted. Appeal allowed.

Summary

Issues Involved:
1. Legality of the order passed by the Commissioner of Income-tax (Appeals)-XXI.
2. Disallowance under Section 40(a)(ia) of the Income-tax Act, 1961 for payments made to a consolidator without TDS deduction.
3. Determination of the relationship between the assessee and the consolidator.
4. Impact of disallowance on the appellant's profit and closing stock.

Issue-Wise Detailed Analysis:

1. Legality of the Order Passed by the Commissioner of Income-tax (Appeals)-XXI:
The appellants challenged the order dated 13.01.2011 passed by the Commissioner of Income-tax (Appeals)-XXI, New Delhi, asserting that it was "bad in law and wrong on facts." The Tribunal examined the grounds of appeal and the factual matrix of the case, ultimately finding merit in the appellants' grievances and allowing the appeals.

2. Disallowance under Section 40(a)(ia) of the Income-tax Act, 1961:
The core issue was the disallowance of Rs. 54,66,051/- under Section 40(a)(ia) for payments made to the consolidator without TDS deduction. The Assessing Officer had added this amount to the assessee's income, which was upheld by the CIT (A). The Tribunal, however, found that similar circumstances were addressed in the case of 'Finian Estates Developers (P) Ltd.', where it was held that the provisions of Section 40(a)(ia) were not applicable. The Tribunal reiterated that the payment made to the consolidator was for the transfer of rights and not for any services rendered, thus not attracting TDS provisions under Section 194C or 194H.

3. Determination of the Relationship Between the Assessee and the Consolidator:
The CIT (A) had held that the consolidator was acting as an agent of the assessee, necessitating TDS deduction. However, the Tribunal found that the relationship was one of principal to principal, as per the Memorandum of Understanding (MoU) between the parties. Clause 3.2 of the MoU indicated that the consolidator was to assign its rights to purchase land to the assessee, and no payment was due unless a minimum of 27 acres was procured. This arrangement demonstrated a principal-to-principal relationship, not an agency relationship, thus negating the requirement for TDS deduction.

4. Impact of Disallowance on the Appellant's Profit and Closing Stock:
The appellants argued that the disallowance had no impact on the taxable profit as the entire amount was included in the closing stock. The Tribunal agreed, noting that no sales had been made during the year under consideration, and the amount paid to the consolidator was reflected in the closing stock. Consequently, no disallowance was warranted as it did not affect the taxable profits for the year.

Conclusion:
The Tribunal allowed both appeals, finding that the disallowance under Section 40(a)(ia) was not justified. The relationship between the assessee and the consolidator was of principal to principal, and the payments made were for the transfer of rights, not services rendered. The Tribunal's decision was consistent with the precedent set in 'Finian Estates Developers (P) Ltd.' and addressed all issues raised comprehensively.