2023 (3) TMI 510 - AT - Income Tax

TDS u/s 195 - disallowance u/s 40(a)(ia) - remittances made to CGTM, France - FTS - payments made by the assessee company to CGTM, France for providing technical assistance was covered by the definition of FTS as defined in Section 9(l)(vii) - HELD THAT - After hearing both the parties, we are of the opinion that there is merit in the argument of ld. A.R. since the Tribunal has already held that there was no question of deduction of TDS on the payment made to CGTM, France for the service rendered by them to the assessee and the payment made to them does not fall under the fees for technical service. Hence, it does not attract the provisions of section 195 of the Act so as to deduct TDS. Accordingly, we allow the grounds taken by the assessee .

Issues Involved:
1. Whether the orders passed by the Ld. CIT(A) under section 250 r.w.s 201(1) and 201(1 A) of the Act are bad in law and on facts.
2. Whether the Ld. CIT(A) erred in dismissing the appeal filed before him without considering the ITAT order dated 10 March 2022.
3. Whether the payments made by the assessee company to CGTM, France for technical assistance were subject to deduction of tax at source under Sec.195 of the Income-tax Act,1961.
4. Whether the fees paid by the assessee to CGTM France constitute fees for technical services and attract the provisions of Sec. 195 for TDS deduction.
5. Whether the assessee is liable for penalty under Sec. 201(1) of the Act for failure to deduct TDS on payments made to CGTM, France.

Analysis:
1. The appeals by the assessee were directed against the orders of CIT(A) for the assessment years 2010-11 & 2013-14. The grounds raised in the appeals challenged the legality and factual correctness of the orders passed by the Ld. CIT(A) under sections 201(1) and 201(1 A) of the Act. The Appellate Tribunal examined the grounds and found merit in the argument that the orders were bad in law and on facts, leading to the allowance of the appeals.

2. The Ld. CIT(A) had dismissed the appeal filed before him without considering the ITAT order dated 10 March 2022, which was in favor of the appellant for AY 2009-10. The Tribunal noted that the previous ITAT order was specific to regular assessment proceedings and not related to TDS proceedings under section 201(1) and 201(1 A) for AY 2010-11. Consequently, the Ld. CIT(A) erred in holding that there was no issue for adjudication, leading to the dismissal of the appeal. However, the Tribunal allowed the grounds taken by the assessee on the same issue as per the previous ITAT order.

3. The payments made by the assessee company to CGTM, France for technical assistance were scrutinized. It was observed that these payments were made without deduction of tax at source, contrary to the provisions of Sec.195 of the Income-tax Act,1961. The assessee was asked to show cause as to why it should not be treated as an Assessee in default for the failure to deduct TDS on these payments.

4. The Tribunal analyzed whether the fees paid by the assessee to CGTM France constituted fees for technical services under Sec. 195 of the Act. Referring to the nature of services provided by CGTM France, the Tribunal concluded that the payments did not fall under the category of fees for technical services. Therefore, the provisions of Sec. 195 did not apply, and there was no requirement to deduct TDS on these payments.

5. The issue of penalty under Sec. 201(1) of the Act for the failure to deduct TDS on payments made to CGTM, France was also considered. The Tribunal, based on the previous ITAT order and the nature of services provided, ruled that the assessee was not liable for TDS deduction. Consequently, there was no basis for levying any penalty under Sec. 201(1) of the Act, and the appeals of the assessee were allowed.

This detailed analysis of the legal judgment highlights the key issues involved, the arguments presented by both parties, and the Tribunal's conclusions on each issue, providing a comprehensive understanding of the case.

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