2014 (1) TMI 939 - AT - Income Tax

Disallowance of the claim - Failure to deduct TDS Provision made to make the payment to non-resident Held that - Section 195 put an obligation for deducting TDS while making payment to non-resident - It nowhere provides that such an obligation can be absolved by showing reasonable cause for not deducting the TDS while making payment or crediting the account - Relying upon Nathpa Jhakri Joint Venture Vs. ACIT 009 (12) TMI 677 - ITAT MUMBAI - if amount paid or payable to non-resident is chargeable to tax in his hand and assessee fail to deduct tax at source then said amount shall not be allowed as deduction u/s 40 (a) (i) assessee contended that there is no mala fide in the conduct of the assessee it has just reimbursed the expenses to the parent company - It has not made this arrangement for avoiding payment of taxes - The element of income is embedded in the receipt of the auditor - If the receipts are routed through the parent company that does not extinguish the element of income from the payments thus the assessee was bound to deduct TDS - It failed to deduct TDS hence a disallowance is to be made u/s 40 (a) (i) the AO is directed to exclude the amount from the disallowance after verification Decided partly in favour of Assessee.

Summary

Issues:
1. Disallowance of provision made for expenses towards ISO audit for failure to deduct TDS.
2. Disallowance of excess provision amount and the contention regarding the amount payable.

Analysis:
1. The assessee appealed against the order disallowing a provision made for expenses related to ISO audit due to failure in deducting TDS. The AO disallowed the claim stating that the amount was payable to a third party for services rendered, and income was embedded in the provision. The assessee argued that TDS was not required as it was a reimbursement of expenses. The Tribunal referred to previous cases and held that TDS should have been deducted as per Section 195, disregarding the assessee's belief of reimbursement without TDS. The disallowance under section 40(a)(i) was upheld, and the exact amount paid without TDS was determined at Rs.1,55,551. The Tribunal directed the AO to exclude the amount of Rs.1,05,989 from disallowance to prevent double taxation.

2. The assessee also contended that an amount of Rs.1,05,989 was written back as income and offered for taxation, thus only Rs.1,55,551 should be disallowed. The AO did not provide reasons for rejecting this plea. The Tribunal acknowledged the issue of potential double taxation and directed the AO to verify and exclude the amount of Rs.1,05,989 from disallowance, ensuring it was taxed in the subsequent year. The appeal was partly allowed for statistical purposes, providing relief to the assessee regarding the excess provision amount to prevent double taxation.