2020 (6) TMI 195 - AT - Income Tax

TDS u/s 195 - payments made to the non-residents - disallowance made u/s. 40(a)(i) - deduction u/s. 10A/10AA - Whether disallowance u/s. 40(a)(i) will have no effect because deduction u/s 10A/10AA of the Act has to be allowed on the enhanced income? - HELD THAT - There is no dispute regarding genuineness of the expenditure that was disallowed and the fact that the said expenditure is otherwise allowable as deduction in computing income from business. In such circumstances, even if the expenditure is disallowed u/s.40(a)(i) of the Act, the result will be that the disallowance will go to increase the profits of the business which is eligible for deduction u/s.10A/10AA of the Act and consequently the deduction u/s. 10A/10AA of the Act should be allowed on such enhanced profit consequent to disallowance u/s. 40(a)(i) of the Act. We find that two High Courts in the case of CIT v. Gem Plus Jewellery India Ltd. 2010 (6) TMI 65 - BOMBAY HIGH COURT and ITO vs. Kewal Construction, 2013 (7) TMI 291 - GUJARAT HIGH COURT have taken the view that when disallowance u/s. 40(a)(ia) of the Act goes to enhance the profits that are eligible for deduction under Chapter VIA of the Act, the deduction under Chapter VIA should be allowed on such increased profit. This position has also been now confirmed by the CBDT in its Circular No.37/2016 dated 02.11.2016 - there is no merit in the grievance projected by the revenue in its appeal. - Decided in favour of assessee.

Issues Involved:
1. Validity of initiation of reassessment proceedings under section 147/148 of the Income-tax Act, 1961.
2. Chargeability of payments made to Associated Enterprises (AEs) to tax under the Act and applicability of TDS under section 195.
3. Deduction under section 10A/10AA of the Act on enhanced profits due to disallowance under section 40(a)(i).
4. Levy of interest under sections 234B and 234C.

Detailed Analysis:

1. Validity of Initiation of Reassessment Proceedings:
The assessee contended that the reassessment proceedings initiated under section 148 were invalid as they were initiated beyond four years from the end of the relevant assessment year without any failure on the part of the assessee to fully and truly disclose all material facts. The assessee argued that the reassessment was based on a mere change of opinion without any new tangible information, referring to the Supreme Court decision in CIT v. Kelvinator of India Ltd. The AO, however, held that the reassessment proceedings were validly reopened. The CIT(A) upheld the AO's decision, confirming the validity of the reassessment proceedings.

2. Chargeability of Payments to AEs and TDS Applicability:
The assessee made payments to its AEs for on-site services and selling commission, amounting to Rs. 5,782,005,614. The AO held that the assessee was required to deduct tax at source under section 195 for these payments. Since the assessee failed to do so, the AO disallowed the payments under section 40(a)(i). The CIT(A) upheld this disallowance, rejecting the assessee's contention that the payments were not chargeable to tax in India and hence not liable for TDS under section 195.

3. Deduction under Section 10A/10AA on Enhanced Profits:
The assessee argued that even if the disallowance under section 40(a)(i) was upheld, the enhanced profits should be eligible for deduction under section 10A/10AA. The CIT(A) agreed with the assessee on this point, allowing the deduction on the enhanced profits. The revenue appealed against this decision, arguing that the deduction under section 10A/10AA should not be allowed on enhanced profits due to disallowance under section 40(a)(i). The Tribunal referred to the decisions of the Bombay High Court in CIT v. Gem Plus Jewellery India Ltd. and the Gujarat High Court in ITO vs. Kewal Construction, which supported the assessee's contention. The Tribunal also cited CBDT Circular No. 37/2016, which affirmed that disallowances enhancing profits should be eligible for Chapter VI-A deductions. Consequently, the Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s decision to allow the deduction under section 10A/10AA on the enhanced profits.

4. Levy of Interest under Sections 234B and 234C:
The assessee contested the levy of interest under sections 234B and 234C, arguing that it was not liable to pay such interest. The CIT(A) upheld the levy of interest. However, the Tribunal did not specifically address this issue in its detailed analysis, focusing instead on the primary issues of reassessment validity and deduction eligibility.

Conclusion:
The Tribunal dismissed both the revenue's and the assessee's appeals. It upheld the CIT(A)'s decision to allow the deduction under section 10A/10AA on the enhanced profits due to disallowance under section 40(a)(i). The Tribunal did not find it necessary to adjudicate on the validity of the reassessment proceedings or the chargeability of the payments to tax, considering the dismissal of the revenue's appeal effectively resolved the matter. The Tribunal left these issues open for future adjudication if circumstances warranted.

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