2013 (12) TMI 124 - AT - Income Tax

Payment to sub-contractor Tax not deducted at source Held that - The assessee has booked advertisements for various clients The assessee was not an accredited agent therefore the advertisement was routed through M/s Ram Advertising Service Provisions of TDS would apply when a client makes payment to an advertisement agency - It is a case of one advertising agency getting work done from the other advertising agency i.e. a sub-contractor - When an advertisement is booked some part of the work may be done by one agency and some part by another agency - In the absence of any evidence to show that M/s Ram Advertising Services has not provided any services the only conclusion possible is that such agency had provided some services therefore the provisions of section 194C(2) are clearly applicable - There is no evidence to show that assessee is not an accredited agency and only M/s Ram Advertising Service is the accredited agency Decided against assessee. Staff refreshment and travelling & conveyance Held that - No details have been filed by the assessee to examine whether any personal expenditure can be said to have been incurred Partly allowed in favour of assessee.

Summary

Issues Involved:
1. Disallowance under Section 40(a)(ia) for non-deduction of TDS on payments to Ram Advertising Service.
2. Disallowance of staff refreshment and travelling & conveyance expenses.

Issue-wise Analysis:

1. Disallowance under Section 40(a)(ia):
The primary issue was the disallowance of Rs. 49,36,160/- by the Assessing Officer (AO) due to the assessee's failure to deduct tax at source (TDS) on payments made to Ram Advertising Service. The assessee contended that TDS was not required based on Circular No. 715 dated 8.8.1995, arguing that Ram Advertising Service acted as a Media Buying Agency rather than an advertising agency. The AO rejected this explanation, stating that the payments were essentially for advertisement work subcontracted to Ram Advertising Service, which necessitated TDS under Section 194C(2) of the Income Tax Act.

The CIT(A) upheld the AO's decision, emphasizing that the gross receipts exceeded Rs. 40 lakhs, making the provisions of Section 194C applicable. The Tribunal also agreed with this view, noting that the assessee failed to provide evidence that Ram Advertising Service did not perform any advertising work. The Tribunal highlighted that the provisions of tax deductions apply to advertising work as defined under Explanation III of Section 194C. The Tribunal dismissed the reliance on Circular No. 715 and the case of Sands Advertising Communications (P.) Ltd., as there was no evidence to show that Ram Advertising Service did not perform any services.

2. Disallowance of Staff Refreshment and Travelling & Conveyance Expenses:
The second issue involved the disallowance of Rs. 12,774/- out of staff refreshment and travelling & conveyance expenses. The AO disallowed 20% of these expenses, citing the potential for personal usage. The CIT(A) confirmed this disallowance. Before the Tribunal, the assessee's counsel argued against this disallowance, while the Departmental Representative (DR) supported the CIT(A)'s order.

The Tribunal found that the disallowance was made on an ad hoc basis without detailed examination of personal expenditure. Consequently, the Tribunal set aside the CIT(A)'s order and restricted the disallowance to Rs. 5000/-.

Conclusion:
The appeal was partly allowed. The Tribunal upheld the disallowance under Section 40(a)(ia) for non-deduction of TDS on payments to Ram Advertising Service, confirming the CIT(A)'s order. However, the Tribunal reduced the disallowance of staff refreshment and travelling & conveyance expenses to Rs. 5000/-.