2014 (1) TMI 1325 - AT - Income Tax

Issues not properly addressed as per section 143 of the Act Held that - No specific ground was raised before the CIT(A), and hence, there is no decision by the learned CIT(A) on this aspect - since there is no decision of the learned CIT(A) on this aspect, the order of the CIT(A) set aside and the matter restored for fresh adjudication to decide the aspect as to whether the AO was justified in making adjustment while passing intimation under section 143(1). Deletion made u/s 40(a)(ia) of the Act Failure to appreciate the effect of amendment made u/s 40(a)(ia) of the Act Held that - Relying upon CIT Vs. Royal Builders 2014 (1) TMI 136 - GUJARAT HIGH COURT - The amended provision of Section 40 (a)(ia) clearly gives the time to the assessee to deposit the TDS on or before the due date specified in subsection (1) of Section 139 of the Act - The amendment came into effect from 1.04.2010 - The disallowance was made by the AO under section 40(a)(ia) of the Act on this basis that no TDS was deducted by the assessee in respect of the payment and therefore, the same is required to be disallowed - assessee could not produce any evidence in support of his contention thus, the order of the CIT(A) set aside and the matter remitted back for fresh adjudication Decided in favour of Assessee.

Summary

Issues:
1. Credit of taxes paid in a foreign country for professional fees remitted to India.
2. Applicability of double taxation avoidance agreement.
3. Adjustment of tax credits under section 143(1) of the Income Tax Act.
4. Granting interest under section 244A of the Act.
5. Disallowance under section 40(a)(ia) for non-deduction of TDS on payments.

Issue 1: Credit of Taxes Paid in Foreign Country
In the case for A.Y. 2005-2006, the appellant raised concerns regarding the denial of credit for taxes paid in a foreign country on professional fees remitted to India. The appellant contended that the AO could not adjust this tax credit while passing intimation under section 143(1) of the Act. The Tribunal acknowledged this as a legal issue and admitted the ground for consideration. As there was no decision by the CIT(A) on this aspect, the Tribunal set aside the CIT(A)'s order and directed a fresh decision on whether the AO was justified in making such adjustments. The appellant was instructed to present arguments before the CIT(A) for a decision on this issue.

Issue 2: Applicability of Double Taxation Avoidance Agreement
The appellant argued that the double taxation avoidance agreement with the foreign country was limited, falling under section 91 of the Act rather than section 90. However, this argument was not specifically addressed by the Tribunal due to the focus on the first issue. The Tribunal's decision on the first issue rendered further discussion on this point unnecessary.

Issue 3: Adjustment of Tax Credits under Section 143(1)
Regarding the adjustment of tax credits under section 143(1) of the Act, the Tribunal emphasized that this issue was not raised before the CIT(A) and required a legal determination. The Tribunal admitted the ground for consideration, setting aside the CIT(A)'s order and instructing a fresh decision on the matter by the CIT(A) after hearing arguments from both parties.

Issue 4: Granting Interest under Section 244A
The appellant contended that interest under section 244A of the Act should have been granted on the taxes paid in the foreign country. However, this specific issue was not elaborated upon in the judgment, and no decision or direction was provided regarding the granting of interest.

Issue 5: Disallowance under Section 40(a)(ia) for Non-Deduction of TDS
In the case for A.Y. 2006-2007, the appellant challenged the disallowance under section 40(a)(ia) for non-deduction of TDS on payments made. The Tribunal noted that the appellant claimed to have deducted TDS on the payment in question but failed to provide evidence to support this claim. The Tribunal set aside the CIT(A)'s order and directed a fresh decision based on the recent judgment of the Gujarat High Court. The CIT(A) was instructed to examine the veracity of the appellant's contentions regarding TDS deduction and make a decision accordingly.

In conclusion, the Tribunal allowed both appeals of the assessee for statistical purposes, highlighting the need for fresh decisions on various issues, including the credit of taxes paid in a foreign country, adjustment of tax credits, and disallowance under section 40(a)(ia) based on the specific circumstances and legal considerations outlined in the judgment.