2013 (12) TMI 1044 - AT - Income Tax

Disallowance u/s 40(a)(ia) Held that - The assessee availed services from some third parties. Payment for such services was made to such third parties through the medium of its holding company. Such payment cannot be considered as reimbursement of expenses at cost to its holding company - In order to invoke the provisions of section 40(a)(ia) it is of paramount importance to ascertain the chargeability of the amount to tax in the hands of such persons who were eventual receivers - The payment includes income element but it still may not be not chargeable to tax under the provisions of the Act and/or the relevant Double Taxation Avoidance Agreement - Unless the chargeability of such amounts is established in the hands of such trainers, the provisions of section 195 cannot apply and ex consequenti, the application of section 40(a)(ia) is ruled out The issue was restored for fresh decision.

Summary

Issues:
1. Disallowance under section 40(a)(ia) for payment made to holding company without tax deduction.
2. Disallowance under section 40(a)(ia) for training expenses paid to holding company without tax deduction.

Issue 1: Disallowance under section 40(a)(ia) for payment made to holding company without tax deduction:

The appeal concerns the disallowance of Rs. 34,94,816 by the Assessing Officer under section 40(a)(ia) of the Income-tax Act, 1961, for a payment made by the assessee to its holding company without deducting tax at source. The holding company agreed to incur various costs for the assessee without any profit element. The Tribunal found that the payment was not taxable in the hands of the recipient, thus no tax deduction was required. The Tribunal emphasized that reimbursement of expenses without profit element cannot be taxed, and therefore, disallowance under section 40(a)(ia) was unwarranted. The Tribunal overturned the assessment order in favor of the assessee.

Issue 2: Disallowance under section 40(a)(ia) for training expenses paid to holding company without tax deduction:

The second issue pertains to the disallowance of Rs. 15,44,700 under section 40(a)(ia) for training expenses paid by the assessee to its holding company without tax deduction. The Tribunal noted that the payment was made by the assessee to the holding company, which then paid outside trainers. The Tribunal clarified that such payments cannot be considered as reimbursement of expenses to avoid tax deduction. It highlighted that the payment routed through the holding company for services from third parties does not qualify as reimbursement. The Tribunal stressed that the chargeability of the amount to tax in the hands of the eventual receivers is crucial for invoking section 40(a)(ia). As the taxability of the amounts in the trainers' hands was not discussed adequately in the assessment, the Tribunal set aside the impugned order and directed the Assessing Officer to determine the chargeability of the amounts in the trainers' hands before applying section 40(a)(ia).

In conclusion, the Tribunal partially allowed the appeal, overturning the disallowance under section 40(a)(ia) for the payment made to the holding company without tax deduction. However, regarding the training expenses issue, the Tribunal directed a reassessment by the Assessing Officer to establish the taxability of the amounts paid to the trainers through the holding company before invoking section 40(a)(ia).