9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (11) TMI 1263 - AT - Income TaxTax Deducted at Source - Sitting Fees paid to directors u/s 194J of Income Tax Act, 1961 - Held that - The provisions of section 194J(1)(ba) speaks of any remuneration or fees or commission by whatever name called other than those on which tax is deductible u/s. 192 to a director of a company on which tax had to be deducted at the applicable rate and the above provision had been inserted by the Finance Act, 2012 w.e.f., 01- 07-2012 - No tax was required to be deducted u/s194J out of such director s sitting fees for the A.Y. 2007-08 - the order of the CIT(A) set-aside and the ground raised by the assessee on the issue of TDS on sitting fees paid to Directors allowed - As per the explanation to provisions of section 194J professional service means services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board. There was no force in the submission of the learned counsel for the assessee that sitting fees paid to the directors does not amount to fees paid for any professional services as has been mentioned in the explanation to section 194J(1) - the memorandum explaining to provisions of the Finance Bill 2012 that as per clause No.71 it was specifically mentioned that there was no specific provision for deduction of tax on the remuneration paid to a director which is not in the nature of salary. Deduction of Tax u/s.194C and 194J - Testing and Inspection Charges - Held that - The payments made by the assessee towards testing and inspection charges cannot be construed as payments towards professional service as per the provisions of section 194J and the assessee had rightly deducted the tax u/s.194C - there was no short deduction of tax - The explanation to section 194J(1) defines professional service means the service rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board. The nature of expenditure made by the assessee towards payments made to various persons as mentioned in the bills cannot be considered as payment for technical consultancy Following GlaxoSmithKline Pharmaceuticals Limited Versus I. T. O. (T. D. S.) -I, Nasik 2011 (10) TMI 21 - ITAT, PUNE - any payment for technical services in order to cover u/s.194J should be a consideration for acquiring or using technical know-how simplicitor provided or made available by human element - There should be direct and live link between the payment and receipt/use of technical services/information - If the conditions of section 194J r.w.s 9(1), explanation 2 clause (vii) were not fulfilled, the liability under this section was ruled out - order of the CIT(A) was set aside - Decided in favour of Assessee. Deduction of Tax u/s 194C - Payment of Hiring of Cranes - Held that - The provisions of section 194C were only applicable for such payments and not provisions of section 194-I Following Swayam Shipping Services (P) Ltd. 2011 (1) TMI 797 - GUJARAT HIGH COURTThe assessee had given sub-contracts for transportation of goods thus the transactions would fall within the purview of section 194C of the Act as the assessee was responsible for paying the amount in question for carrying out work in pursuance of contracts between the assessee and the transporters and as such the assessee was required to deduct tax at source at the rate prescribed under that section Decided in favour of Assessee.
Issues Involved:
1. Applicability of Section 194J on Director's Sitting Fees. 2. Applicability of Section 194J on Testing and Inspection Charges. 3. Applicability of Section 194I on Hiring of Cranes. 4. Applicability of Section 194J on Windmill Operation and Maintenance Payments. 5. Applicability of Section 194J on Various Contractual Payments. 6. Applicability of Section 194J on Training Programs and Seminars. 7. Applicability of Section 194J on Payments to IT Service Providers. 8. Direction to Assessing Officer on Fresh Evidence for Payment of Taxes by Deductees. Detailed Analysis: 1. Applicability of Section 194J on Director's Sitting Fees: The assessee contended that Director's Sitting Fees do not fall under the purview of professional services as defined under Section 194J. The CIT(A) upheld the Assessing Officer's view that directors are technical personnel under the Companies Act, and thus, TDS should be deducted under Section 194J. However, the Tribunal found that the definition of professional services under Section 194J does not include Director's Sitting Fees. The amendment to Section 194J(1)(ba) effective from 01-07-2012, which includes remuneration or fees to directors, was not applicable for the assessment year 2007-08. Hence, the Tribunal set aside the CIT(A)'s order, allowing the assessee's appeal on this issue. 2. Applicability of Section 194J on Testing and Inspection Charges: The assessee argued that payments for testing and inspection were contracts for material and labor, not professional or technical services, and thus TDS was deducted under Section 194C. The CIT(A) upheld the Assessing Officer's view that these payments were for technical consultancy, requiring TDS under Section 194J. The Tribunal, however, found that the nature of services did not fit the definition of professional services under Section 194J. Citing the Pune Bench's decision in Glaxosmithkline Pharmaceuticals Ltd., the Tribunal held that the payments were rightly covered under Section 194C and set aside the CIT(A)'s order. 3. Applicability of Section 194I on Hiring of Cranes: The assessee deducted TDS under Section 194C for payments made for hiring cranes with operators. The Assessing Officer contended that TDS should be under Section 194I as the payments were for the use of machinery. The CIT(A) upheld this view. The Tribunal, however, referenced the Gujarat High Court's decision in Shree Mahalaxmi Transport Co., which held that such contracts are for work, not rent. Consequently, the Tribunal ruled that Section 194C was applicable, setting aside the CIT(A)'s order. 4. Applicability of Section 194J on Windmill Operation and Maintenance Payments: The Assessing Officer argued that payments to Enercon India Ltd. for windmill maintenance required TDS under Section 194J due to the technical nature of the services. The CIT(A) disagreed, citing the Madras High Court's decision in Skycell Communications Ltd., which differentiated between the use of technical equipment and the provision of technical services. The Tribunal upheld the CIT(A)'s decision, affirming that Section 194C applied. 5. Applicability of Section 194J on Various Contractual Payments: The Assessing Officer held that payments to various parties for services like AMC should be under Section 194J. The CIT(A) ruled that these were routine maintenance contracts covered under Section 194C, referencing the CBDT Circular No.715. The Tribunal agreed, citing the Ahmedabad Bench's decision in Nuclear Corporation of India Ltd., and upheld the CIT(A)'s order. 6. Applicability of Section 194J on Training Programs and Seminars: The Assessing Officer argued that payments for training and seminars required TDS under Section 194J. The CIT(A) found that these payments did not constitute professional services under Section 194J and ruled in favor of the assessee. The Tribunal upheld this decision, agreeing that the payments were for attending seminars and not for professional services. 7. Applicability of Section 194J on Payments to IT Service Providers: The Assessing Officer asserted that payments to companies like Tata Consultancy Services and Wipro Ltd. for IT services required TDS under Section 194J. The CIT(A) ruled these were AMC payments covered under Section 194C. The Tribunal upheld this view, noting that the nature of payments was for routine maintenance, not professional services. 8. Direction to Assessing Officer on Fresh Evidence for Payment of Taxes by Deductees: The CIT(A) directed the Assessing Officer to verify if the deductees had paid taxes, in which case the shortfall should not be collected from the assessee. The Tribunal found this direction moot as the assessee's appeals were allowed, and there was no short deduction of tax. Conclusion: The Tribunal allowed the assessee's appeals on all issues, setting aside the CIT(A)'s orders where applicable, and dismissed the revenue's appeals. The Tribunal's decisions were based on interpretations of Sections 194C and 194J of the Income Tax Act, supported by relevant case law and CBDT circulars.
|
