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2020 (4) TMI 789 - AT - Income TaxDepreciation on batteries and UPS - @15% OR 60% - HELD THAT - Both sides agree that this issue is covered in favour of assessee by decision in case of CIT vs. BSES Yamuna Power Ltd. 2010 (8) TMI 58 - DELHI HIGH COURT . Respectfully following the same, we direct Ld. AO of grant depreciation on UPS at 60%. TDS u/s 194J - expenditure incurred towards toll-free telephone charges under section 40(a)(ia) - non-deduction of taxes under section 194J on the basis that the payments would qualify as royalty - HELD THAT - Payments made by assessee is royalty, in terms of Section 9(1)(vi) of the Act, and is liable to deduct TDS under section 194J of the Act. We therefore are in agreement with the view taken by CIT (A). Admittedly, assessee has not deducted TDS on payments made towards toll-free charges, and therefore, disallowance under section 40 (a) (ia) is warranted. However, we set aside this issue to Ld.AO for verification as to whether the payee paid taxes on such payments received from assessee during relevant period. Reliance is placed on decision in case of Hindustan Coca-Cola Beverages Pvt. Ltd vs CIT 2007 (8) TMI 12 - SUPREME COURT wherein it has been observed that, where tax due has been paid by the deducted, demand under section 201 (1) of the Act cannot be enforced on assessee. In the event, assessee is able to establish that, due tax has been paid by Payee on such payments received, the disallowance made u/s 40 (a) (ia) shall be deleted. Needless to say that assessee shall be granted proper opportunity of being heard as per law. With the above directions we set aside this issue back to Ld. AO.
Issues Involved:
1. Disallowance of expenses incurred towards toll-free telephone charges under section 40(a)(ia) of the Income-tax Act, 1961. 2. Addition of difference of receipts appearing in Form 26AS to the income of the appellant as undisclosed income. 3. Non-grant of credit for tax deducted at source (TDS) credit. 4. Disallowance of depreciation on batteries and UPS at 15% instead of 60% for assessment year 2012-13. Detailed Analysis: Issue 1: Disallowance of Expenses Incurred Towards Toll-Free Telephone Charges The learned AO disallowed expenses of ?58,80,650 incurred towards toll-free telephone charges under section 40(a)(ia) due to non-deduction of taxes under section 194J, considering these payments as 'royalty'. The CIT(A) upheld this finding. The appellant argued that the term 'royalty' should be restricted to the definition in Explanation 2 to section 9(1)(vi) and not include payments for toll-free telephone charges as per Explanation 6. The appellant also cited the Bombay High Court's decision in CIT vs. M/s NGC Networks India Pvt. Ltd., which held that retrospective amendments cannot compel compliance with provisions not in force at the relevant time. However, the Tribunal upheld the CIT(A)'s decision, referencing the Madras High Court's decision in Verizon Communications Singapore PTE Ltd vs. ITO, which classified similar payments as 'royalty'. The Tribunal directed the AO to verify if the payee had paid taxes on these payments and, if so, to delete the disallowance. Issue 2: Addition of Difference of Receipts Appearing in Form 26AS as Undisclosed Income The AO added ?5,59,91,513 as undisclosed income based on differences between receipts in Form 26AS and the appellant's books. The CIT(A) upheld this addition, stating that the discrepancies amounted to suppression of income and could not be justified under Accounting Standard-9. The Tribunal upheld this view but directed the AO to allow relief in the relevant assessment years if the income was recognized in those years. Issue 3: Non-Grant of Credit for TDS The AO denied TDS credit of ?1,00,93,973 for AY 2014-15, stating that the underlying income pertained to other assessment years. The CIT(A) upheld this decision. The Tribunal agreed with the CIT(A) but directed the AO to allow TDS credit in the relevant assessment years where the underlying income was offered to tax. Issue 4: Disallowance of Depreciation on Batteries and UPS for AY 2012-13 For AY 2012-13, the appellant contested the restriction of depreciation on batteries and UPS at 15% instead of 60%. Both parties agreed that this issue was covered in favor of the appellant by the Delhi High Court's decision in CIT vs. BSES Yamuna Power Ltd., which allowed depreciation on UPS at 60%. The Tribunal directed the AO to grant depreciation at 60%. Conclusion: The appeals for AY 2011-12 to 2014-15 were partly allowed for statistical purposes. The Tribunal dismissed the issue concerning toll-free telephone charges being considered as 'royalty' but directed the AO to verify the payee's tax payments. The Tribunal upheld the addition of undisclosed income based on Form 26AS discrepancies but allowed for adjustments in relevant years. The denial of TDS credit was upheld, with directions for appropriate adjustments. The depreciation on UPS was allowed at 60% for AY 2012-13.
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