2016 (11) TMI 733 - AT - Income Tax

TDS u/ s 195 - liability to deduct the tax at source on the bank guarantee commission paid to VTB bank - PE in India - Held that - When the Revenue authorities have failed to lay hands on any cogent material that the bank guarantee commission paid by the assessee company paid on account of business transaction between assessee company and VTB bank particularly in the face of the fact that VTB bank has no PE in India, the question of attracting provision contained u/s 195 of the Act does not arise. In other words, when the assessee company has directly made the payments to VTB bank, Russia through its banker in India, no income can be said to have accrued or arisen in India to the VTB bank u/s 4, 5 and 9 of the Act. So, in the given circumstances, Assessee Company was not liable to deduct the tax at source on the bank guarantee commission paid to a foreign bank. - Decided in favour of assessee

Summary

Issues:
1. Addition of ?4,85,24,202 under Section 40(a)(i) of the Income Tax Act, 1961.
2. Deletion of the above said addition due to non-deduction of tax on bank guarantee commission.
3. Appeal in ITAT on similar issues in earlier years.
4. Fresh grounds of appeal.

Analysis:
Issue 1: The Revenue appealed against the order deleting the addition of ?4,85,24,202 made by the Assessing Officer under Section 40(a)(i) of the Income Tax Act, 1961. The assessee had claimed unabsorbed depreciation and business loss in its return. The AO disallowed the amount as tax was not deducted on payment to VTB Bank. The CIT(A) partly allowed the appeal, leading to the Revenue's current appeal.

Issue 2: The CIT(A) deleted the addition, stating that the facts were similar to previous years where the issue was decided in favor of the appellant. The Tribunal upheld the CIT(A)'s order for the assessment years 2006-07 to 2008-09 in the appellant's case. The Tribunal found that the bank guarantee commission paid to a foreign bank like VTB Bank did not constitute interest under the Act, and thus, no TDS was required. The Tribunal rejected the Revenue's appeal, maintaining consistency with previous decisions.

Issue 3: The CIT(A) based the decision on the previous years' outcomes and the Tribunal's rulings in the appellant's case. The Tribunal reiterated that the bank guarantee commission paid to a foreign bank did not attract TDS obligations under Section 195 of the Act. The Tribunal emphasized that no income accrued in India to the foreign bank, thus no TDS was required. The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s reasoned order.

Issue 4: The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s decision to delete the addition. The Tribunal's decision was based on the non-applicability of TDS on bank guarantee commission paid to a foreign bank, as established in previous rulings for the appellant's case.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete the addition of ?4,85,24,202 under Section 40(a)(i) of the Income Tax Act, 1961, due to the non-applicability of TDS on bank guarantee commission paid to a foreign bank as per previous rulings in the appellant's case.