2018 (2) TMI 1587 - AT - Income Tax

Reopening of assessment - assessee has made the payment towards the conversion expenses but not deducted TDS as required u/s 194C - addition u/s 40(a)(ia) - payer has offered the amount for tax purpose - Held that - In the assessee s case the recipient has admitted the entire receipt as income and filed the return of Income. Following the decision of coordinate bench in the case of B. Dwarakanatha Reddy Vs. DCIT 2015 (10) TMI 2046 - ITAT HYDERABAD we hold that provisions of section 40(a)(ia) are not applicable provided the payer has offered the amount for tax purpose and have paid or deemed to have paid the taxes on such income. Since the recipient has already has admitted the income and paid the taxes and the amount in question was reimbursement of expenses, we hold that the addition made by the A.O. u/s 40(a)(ia) of the Act is unsustainable and accordingly, we uphold the order of the Ld. CIT(A) and dismiss the revenue s appeal.

Summary

Issues Involved:
1. Reopening of assessment under Section 147 of the Income Tax Act.
2. Disallowance under Section 40(a)(ia) due to non-deduction of TDS on conversion expenses.
3. Applicability of TDS on reimbursement of expenses.
4. Validity of the CIT(A)'s reliance on the Merilyn Shipping case.
5. Prospective application of the amendment to Section 40(a)(ia).

Detailed Analysis:

1. Reopening of Assessment under Section 147:
The assessee initially filed a return declaring a total income of ?3,90,370. The assessment was completed under Section 143(3) determining the income at ?6,90,370. The case was reopened under Section 147 due to non-consideration of disallowance under Section 40(a)(ia) for non-deduction of TDS on conversion expenses amounting to ?4,36,13,708.

2. Disallowance under Section 40(a)(ia) due to Non-Deduction of TDS:
During reassessment, the AO found that the assessee did not deduct TDS on conversion expenses paid to M/s. Aditya Spinners, thus adding ?4,36,13,708 under Section 40(a)(ia). The CIT(A) deleted this addition, relying on the Merilyn Shipping case and the argument that TDS was not required on reimbursement of expenses.

3. Applicability of TDS on Reimbursement of Expenses:
The assessee argued that the conversion expenses were reimbursements and thus not subject to TDS. The CIT(A) agreed, noting that reimbursement does not attract TDS as it lacks a profit element. This view was supported by ITAT, Delhi Bench in ACIT vs. Modicon Network Pvt. Ltd. and other judicial precedents, which held that reimbursable expenditures do not form part of taxable income.

4. Validity of CIT(A)'s Reliance on Merilyn Shipping Case:
The revenue contended that the Merilyn Shipping case was no longer good law following the Supreme Court's decision in Palam Gas Service vs. CIT. However, the tribunal upheld the CIT(A)'s decision, emphasizing that the reimbursement of expenses does not attract TDS, irrespective of the Merilyn Shipping case's standing.

5. Prospective Application of the Amendment to Section 40(a)(ia):
The revenue argued that the amendment to Section 40(a)(ia) was prospective and not applicable to the assessment year in question. The tribunal noted that since the recipient (M/s. Aditya Spinners) had admitted the entire receipt as income and paid taxes, the provisions of Section 40(a)(ia) were not applicable.

Conclusion:
The tribunal upheld the CIT(A)'s order, confirming that the conversion expenses were reimbursements not subject to TDS and dismissing the revenue's appeal. Consequently, the cross-objection filed by the assessee was deemed infructuous and dismissed. The decision emphasized that reimbursement of expenses, lacking a profit element, does not attract TDS and thus does not warrant disallowance under Section 40(a)(ia).