2014 (2) TMI 273 - AT - Income Tax

Disallowance of deduction for fees paid to master card Non deduction of TDS - Held that - As decided in assessee s own case for ealier years, the deduction can be allowed, only in the year in which the tax has been paid or deducted under Chapter XVII-B - in the assessment year no tax has been deducted while remitting these amounts to companies situated outside India, the first appellate authority was right in upholding the disallowance made by the assessing officer - in the absence of any evidence on record that payee has paid the taxes on the amount paid by the assessee as fee to Master Card there was no reason to interfere with the order of CIT(A) Decided against Assessee. Disallowance of Franchise Tax and Pre factural Municipal Inhabitant tax Held that - The CIT(A) has already given the direction to the AO to verify the claim and allow the claim on the basis of actual payment in respect of taxes paid relating to assessee s New York and Tokyo Branch - the sssessee should have no grievance against the order of CIT(A) as CIT(A) has directed the AO to allow claim of the assessee on the basis of actual payment in respect of taxes paid relating to assessee s New York and Tokyo Branch after verification Decided against Assessee. Disallowance u/s 14A of the Act Income as Expenses Held that - The disallowance made by the AO by following 12% of the income as expenses is not justified and is not based on any rational basis - the disallowance of 0.5% of tax free income would be reasonable - The order of the CIT(A) set aside on the issue and the matter remitted back to the AO for fresh adjudication Decided in favour of Assessee.

Issues Involved:
1. Disallowance of deduction for fees paid to Master Card.
2. Disallowance of losses incurred.
3. Disallowance of expenses of Jakarta office.
4. Disallowance of New York Branch State Franchise Tax and Tokyo Branch Business Tax.
5. Disallowance of expenses under Section 14A related to exempt income.
6. Disallowance of fees paid to Master Card International.
7. Application of Minimum Alternate Tax (MAT) under Section 115JA.
8. Exclusion of profits of foreign branches from total income.

Detailed Analysis:

1. Disallowance of Deduction for Fees Paid to Master Card:
The assessee claimed a deduction for fees paid to Master Card amounting to Rs.119.47 lacs. The AO disallowed this deduction under Section 40(a)(i) of the Income Tax Act due to non-deduction of tax at source. The CIT(A) upheld this decision referencing prior ITAT orders in the assessee's own case. The assessee acknowledged that the issue was previously decided against them. The Tribunal found no evidence that the payee had paid the taxes and upheld the CIT(A)'s decision, rejecting the assessee's ground of appeal.

2. Disallowance of Losses Incurred:
The AO disallowed losses amounting to Rs.17,21,15,970, and the CIT(A) set aside this issue for verification. The assessee did not press this ground during the hearing, and it was dismissed as not pressed.

3. Disallowance of Expenses of Jakarta Office:
The AO disallowed expenses of Rs.42,21,790 for the Jakarta office, and the CIT(A) directed verification of these expenses. The assessee did not press this ground during the hearing, and it was dismissed as not pressed.

4. Disallowance of New York Branch State Franchise Tax and Tokyo Branch Business Tax:
The AO disallowed the deduction for taxes paid by the New York and Tokyo branches due to lack of documentary evidence. The CIT(A) directed the AO to verify the actual payment of these taxes and allow the claim accordingly. The Tribunal agreed with this direction and found no grievance for the assessee, rejecting this ground of appeal.

5. Disallowance of Expenses Under Section 14A Related to Exempt Income:
The AO disallowed Rs.13,18,63,913 under Section 14A for expenses related to exempt income. The CIT(A) directed a disallowance of 0.5% of average investments instead. The Tribunal noted that the AO's 12% estimation was not justified and restored the issue to the AO to determine a reasonable disallowance as per law, considering the assessee's and Tribunal's directions in prior cases.

6. Disallowance of Fees Paid to Master Card International:
The assessee claimed a deduction for fees paid to Master Card International, which was disallowed by the AO under Section 40(a)(i) for non-deduction of tax at source. The CIT(A) directed the AO to verify the payment of taxes for earlier years and allow the deduction accordingly. The Tribunal upheld this direction, noting the discrepancy in the amount claimed and directed the assessee to clarify the correct amount to the AO.

7. Application of Minimum Alternate Tax (MAT) Under Section 115JA:
The assessee argued that their income should be assessed under normal provisions rather than under Section 115JA. The Tribunal agreed with the CIT(A) that this ground did not arise from the CIT(A)'s order and noted that the AO would compute the income as per law. The additional ground was rejected, allowing the assessee to appeal if aggrieved by the AO's computation.

8. Exclusion of Profits of Foreign Branches from Total Income:
The department appealed against the exclusion of Rs.63.03 crore profits of foreign branches from the total income. Both parties acknowledged that the issue was covered in favor of the assessee by prior Tribunal orders. The Tribunal upheld the CIT(A)'s decision to exclude these profits, rejecting the department's grounds of appeal.

Conclusion:
The appeal by the assessee was allowed in part for statistical purposes, and the appeal by the department was dismissed. The Tribunal upheld the CIT(A)'s decisions on several issues, directed further verification on some, and restored certain matters to the AO for re-examination. The judgment emphasized adherence to prior Tribunal decisions and proper verification of claims.

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