2019 (5) TMI 279 - AT - Income Tax

Disallowance u/s. 40(a)(ia) - professional and technical services payments to non-residents - TDS u/s 195 - payments for subscription fees for accessing the server of Intelliqip for the pump data - Income accrued in India - DTAA with USA - PE in India - HELD THAT - Payments is not in the nature of fees including services is covered under Article 12 of DTAA and same falls under Article 7 as business profit and Intelliquip non-resident company does not have any permanent establishment in India and therefore it is not taxable in India. The payments made by the assessee are in the nature of subscription fees and on verifying the invoices demonstrated by the ld. AR of assessee. Prima facie the payment is for the usage of data by the assessee. Therefore we are of the opinion that the payments as discussed in the above paragraphs is non-taxable in India and therefore no TDS is deducted and in the nature of subscription, therefore we set aside the order of CIT(A) on this ground and direct the Assessing Officer to delete the addition. Exemption u/s. 10(23FB) - income received from Venture Capital Fund - provisions of section 115U - HELD THAT - We found that the income received from the Venture Capital Fund is exempted. We found that the assessee has made investments into the Venture Capital fund and received profits which are exempted. CIT(A) though considered the aspects of Joint venture but dealt only on the findings of the AO by treating the same as income of the assessee and the observations of the CIT(A) that the assessee could not satisfy with evidence i.e. how the assessee is entitled to claim exemption; Even before us the assessee has not filed any information in respect of investment made in Joint Venture and no material filed, we found that this issue has to be verified and examined and accordingly we restore this issue for limited purpose to the file of Assessing Officer and allow the ground of appeal for statistical purposes. Disallowance u/s. 14A r.w. Rule 8D - HELD THAT - As decided in PRAGATHI KRISHNA GRAMIN BANK VERSUS THE JOINT COMMISSIONER OF INCOME TAX, BELLARY RANGE 2018 (6) TMI 1283 - KARNATAKA HIGH COURT shall be on a reasonable proportion to exempted income and we restore this issue to the file of AO to recompute the disallowance after verification of details and accordingly the ground of appeal is allowed for statistical purposes.

Summary

Issues Involved:
1. Disallowance of ?4,86,000/- under Section 40(a)(i) of the IT Act.
2. Disallowance of ?5,47,627/- being income received from venture capital fund.
3. Disallowance of ?1,95,493/- under Section 14A read with Rule 8D.
4. Addition of ?1,917/- due to reconciliation difference between books and Form 26AS.

Issue-wise Detailed Analysis:

1. Disallowance of ?4,86,000/- under Section 40(a)(i) of the IT Act:
The assessee paid fees for professional and technical services to a non-resident entity, Intelliquip LLC, USA, without deducting TDS. The Assessing Officer (AO) applied the provisions of Section 40(a)(i) of the Act, disallowing the payment. The assessee argued that the payment is covered by Section 90(2) of the Act and the Double Taxation Avoidance Agreement (DTAA) between India and USA, thus no TDS was required. The Tribunal found that the payment was for subscription fees to access software data, not fees for included services, and thus, not taxable in India under Article 12 of the DTAA. Consequently, the Tribunal directed the AO to delete the addition.

2. Disallowance of ?5,47,627/- being income received from Venture Capital Fund:
The assessee claimed exemption for income received from a Venture Capital Fund under Section 10(23FB). The AO was not satisfied with the explanation and taxed the income. The Tribunal referred to Sections 115U and 10(23FB) of the Act, which exempt such income. However, the Tribunal noted that the assessee did not provide sufficient evidence regarding the investment in the Joint Venture. Therefore, the Tribunal remanded the issue back to the AO for verification and examination, allowing the ground of appeal for statistical purposes.

3. Disallowance of ?1,95,493/- under Section 14A read with Rule 8D:
The AO disallowed ?1,95,493/- under Section 14A read with Rule 8D, stating that investments cannot be made without expenditure. The assessee argued that no borrowed funds were used for the investments, which were made from internal accruals. The Tribunal referred to the Karnataka High Court's decision in Pragathi Krishna Gramin Bank Vs. JCIT, which states that the expenditure for earning exempted income should be proportionate to the exempted income. The Tribunal restored the issue to the AO for recomputation after verification, allowing the ground of appeal for statistical purposes.

4. Addition of ?1,917/- due to reconciliation difference between books and Form 26AS:
The AO added ?1,917/- due to a reconciliation difference between the interest receipts reported in Form 26AS and the books of account. The assessee could not produce any new evidence to dispute this difference. Therefore, the Tribunal confirmed the CIT(A)'s action and dismissed this ground of appeal.

Conclusion:
The appeal filed by the assessee was partly allowed for statistical purposes, with the Tribunal directing the AO to delete the disallowance under Section 40(a)(i) and to re-examine the issues related to the Venture Capital Fund income and disallowance under Section 14A. The addition due to reconciliation difference was upheld.