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2018 (9) TMI 860 - AT - Income TaxTDS u/s 192 - reimbursement of salary to the Member of Joint Venture (AOP) - expenses from non-deduction of tax at source under section 40(ba) - Held that - The payments contemplated in sec. 40(ba) should constitute Share income from AOP in the hands of the recipient member. In the instant case the payments made by the assessee to M/s ITDCL do not constitute Share income in the hands of M/s ITDCL but it merely offsets the expenditure incurred by it i.e. the money has been received by M/s ITDCL towards reimbursement of expenses incurred by it on its employees on behalf of the assessee. As the bench specifically asked A.R as to whether M/s ITDCL has duly deducted tax at source from the salary payments made by it to its employees who were deputed to the assessee. As A.R submitted that M/s ITDCL has duly deducted tax at source from the salary payments made to its employees and further the assessee has also clarified this aspect to the tax authorities. Thus we are of the view that the provisions of sec. 40(ba) shall not apply to the payment given to M/s ITDCL since the said payments have not been received by it on its own account contemplated in sec. 67A r.w.s. 40(ba) of the Act and hence the same shall not acquire the character of share income from AOP in its hands. Accordingly we set aside the order passed by Ld CIT(A) on this issue. - Decided in favour of assessee
Issues:
Adjudication of disallowance of reimbursement of salary and related expenses under section 40(ba) of the Income Tax Act. Analysis: 1. The appeal was filed against the order of the Commissioner of Income-Tax (Appeals) for Assessment Year 2008-09. The matter was remanded by the Hon'ble Bombay High Court for fresh adjudication on the disallowance of salary and related expenses under section 40(ba) of the Act. 2. The appellant, an "Association of person," claimed deduction of salary-related expenses reimbursed to its member, ITD Cementation India Ltd. The Assessing Officer disallowed the claim under sections 40(a)(ia) and 40(ba) of the Act for non-deduction of tax at source under section 192. 3. The main issue was whether the provisions of section 40(ba) were justified in disallowing the payment of salary and related expenses to ITD Cementation Ltd. The Tribunal considered the arguments of both parties and reviewed the lower authorities' orders and case records. 4. Section 40(ba) of the Act states that certain amounts, including salary and remuneration, shall not be deducted in computing income if paid to a member of an association. The Tribunal noted that the payments in question were related to salary and other expenses, not interest or commission. 5. The Tribunal deliberated on the nature of salary payments, emphasizing that such payments are typically for personal services provided by individuals. However, in this case, the members of the appellant were corporate bodies, and personal services were not involved. 6. The appellant argued that the salary payments should be considered as share income in the hands of the recipient member, referencing section 67A of the Act. The provisions of section 67A outline the computation of share income for members of an Association of Persons. 7. The appellant contended that the payments to ITD Cementation Ltd. were reimbursements for services provided by its employees. The Tribunal considered this argument in light of the nature of the payments made. 8. After examining the provisions of section 40(ba) and section 67A, the Tribunal found that the payments to ITD Cementation Ltd. did not constitute share income but were reimbursement of expenses incurred by the company. It was confirmed that tax had been duly deducted at the source by ITD Cementation Ltd. 9. Consequently, the Tribunal held that section 40(ba) did not apply to the payments made to ITD Cementation Ltd. as they did not qualify as share income from the Association of Persons. The order of the Commissioner of Income-Tax (Appeals) was set aside on this issue. 10. The Tribunal allowed the appeal regarding the applicability of section 40(ba) to salary payments, as directed by the Hon'ble High Court, and pronounced the order in favor of the assessee on July 30, 2018.
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