2013 (12) TMI 1061 - AT - Income Tax

Disallowable u/s 40(a)(ia) Held that - A perusal of Form NO.16 clearly shows that what is paid by the assessee is only salary - A perusal of order of CIT(A) clearly show that he has taken into consideration that the employees are regular in the employment of the assessee and the assessee company has also deducted professional tax while disbursing the salary - Once it is shown that the assessee has only paid salaries to the person just because the teachers, are part time teachers, the same cannot be termed as professional fees for the purpose of invoking the provision of section 194J Decided against Revenue. Expenditure u/s 37(1) Legal settlement for violation of Copyright Act - Held that - A perusal of compromise petition filed before Hon ble Delhi High Court show that it is a compromise in respect of the contractual liability and the compromise is in no way on account of penalty Decided against Revenue.

Summary

Issues:
1. Disallowance of payment under section 40(a)(ia) of the Income Tax Act, 1961.
2. Allowability of business expenditure under section 37(1) of the Income Tax Act, 1961.

Analysis:

Issue 1: Disallowance under section 40(a)(ia) of the Income Tax Act, 1961:
The Revenue appealed against the order of the ld. C.I.T.(A)-VIII, Kolkata regarding the disallowance of Rs.34,95,411 under section 40(a)(ia) for the Assessment year 2009-10. The Revenue contended that the assessee failed to deduct TDS under section 194J of the Act for payments made to faculty members, which led to the disallowance. The Revenue argued that the payments were treated as salary by the assessee, but the CIT(A) erred in holding that TDS was not required to be deducted under section 194J. However, the AR presented evidence showing that the payments were indeed salaries, supported by Form No.16 issued to employees, and TDS was not applicable under section 194J. The Tribunal upheld the CIT(A)'s decision, confirming that the payments were salaries and not subject to TDS under section 194J.

Issue 2: Allowability of business expenditure under section 37(1) of the Income Tax Act, 1961:
Regarding the disallowance of Rs.5 lakhs claimed as business expenditure under section 37(1) for a settlement fee paid for a civil suit, the AO disallowed the amount considering it penal in nature. However, the CIT(A) treated the payment as business expenditure. The AR highlighted a compromise petition filed before the High Court, showing that the payment was part of a compromise and not a penalty. The Tribunal agreed with the AR's argument, stating that the payment to Microsoft was part of a compromise for contractual liability and not a penalty. As Microsoft could not levy a penalty on the assessee, the Tribunal upheld the CIT(A)'s decision to allow the business expenditure under section 37(1). Consequently, the Revenue's appeal was dismissed, affirming the decisions made by the CIT(A) in both issues.

In conclusion, the Tribunal upheld the CIT(A)'s decisions on both issues, confirming that the payments in question were not subject to disallowance under section 40(a)(ia) and were allowable as business expenditure under section 37(1) of the Income Tax Act, 1961.