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2016 (11) TMI 113 - AT - Income TaxTDS u/s 195 - dis allowance of professional fees under section 40(a)(ia) for the alleged non-deduction of tax at source - Indo-France DTAA - Held that - Following, inter alia, the decisions of the ITAT Panaji Bench in the case of Ajit Ramakant Phatarpekar (2015 (4) TMI 261 - ITAT PANAJI ), of the ITAT Agra Bench in the case of Virola International (2014 (2) TMI 653 - ITAT AGRA ), we hold that the retrospective amendment made by Finance Act, 2010 w.e.f. 01.06.1976 in Explanation 2 to section 9(2) of the Act, which received the assent of the President of India on 08.05.2010, does not create any liability to the assessee in the case on hand for deduction of tax under section 195 of the Act on the remittance to OBT since the payment was made much earlier; in the period relevant to Financial Year 01.04.2008 to 31.03.2009. Since the assessee was not liable at that point in time to deduct tax at source in respect of the remittance e to OBT the disallowance made thereof under section 40(a)(i) could not have been made and being factually and legally unsustainable, we direct the AO to delete the same. It is accordingly ordered. On this short point, we allow the assessee s appeal.
Issues Involved:
1. Disallowance of professional fees under section 40(a)(i) of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Disallowance of Professional Fees under Section 40(a)(i) of the Act: Facts of the Case: The assessee company, engaged in management consultancy, filed its return of income for A.Y. 2009-10 declaring income of ?19,79,012/-. The revised return declared income of ?38,40,819/-. The assessment was completed under section 143(3) of the Act, determining the income at ?95,26,058/- due to disallowances, including ?26,05,239/- under section 40(a)(i) for non-deduction of tax at source on remittance made to Orfis Baker Tilly (OBT), a tax resident of France. Assessee's Appeal: The assessee contested the disallowance of ?26,05,239/- under section 40(a)(i), arguing that the remittance to OBT was not taxable under section 195 of the Act, read with the Indo-France DTAA, as the services were rendered outside India. Arguments and Submissions: The assessee's representative argued that since OBT rendered services outside India, the income was not deemed to accrue or arise in India under section 9 of the Act, and therefore, there was no requirement to withhold tax under section 195. The representative cited the Hon’ble Supreme Court decision in Ishikawajma-Harima Heavy Industries Ltd. v. DIT 288 ITR 408, which held that services rendered outside India were not taxable in India. Revenue's Position: The Revenue contended that the remittance was in the nature of fees for technical services (FTS) and thus taxable in India, requiring the assessee to deduct tax at source under section 195. The CIT (A) upheld the disallowance, agreeing with the Revenue's view. Tribunal's Findings: The Tribunal observed that the remittance to OBT was for services rendered outside India, and thus, under the prevailing law at the time (before the Finance Act, 2010), the income was not taxable in India. The Tribunal noted that the retrospective amendment to Explanation to section 9(2) by Finance Act, 2010, which deemed such income taxable, could not impose a TDS obligation retrospectively. Legal Precedents: The Tribunal referred to multiple judicial pronouncements supporting the view that retrospective amendments could not impose a TDS obligation for past payments: - Channel Guide India Ltd. v. Asstt. CIT [2012] 139 ITD 49 (Mum. - Trib.) - Sterling Abraive Ltd. v. Asstt. CIT [2011] 44 SOT 652 (Ahd.) - Infotech Enterprises Ltd. v. Addl. CIT [2014] 63 SOT 23 (Hyd. - Trib.) - Dy. CIT v. Virola International [2014] 147 ITD 519 (Agra - Trib.) - Asstt. CIT v. Ajit Ramakant Phatarpekar [2015] 154 ITD 144 (Panaji - Trib.) Conclusion: The Tribunal concluded that the disallowance under section 40(a)(i) could not be sustained as the assessee was not liable to deduct tax at source under section 195 at the time of remittance. The law at that time did not require TDS for services rendered outside India, and the retrospective amendment could not impose such an obligation. Therefore, the Tribunal directed the AO to delete the disallowance of ?26,05,239/-. The assessee's appeal was allowed on this ground.
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