2001 (1) TMI 214 - AT - Income Tax

Summary

Issues:
1. Maintainability of appeal before the CIT(A).
2. Taxability of payments made to foreign contractors under the IT Act.

Issue 1: Maintainability of appeal before the CIT(A):
The appeal filed by the Revenue questioned the CIT(A)'s decision regarding the order directing the assessee to deduct tax at source from payments to non-residents. The Revenue raised objections to the maintainability of the appeal before the CIT(A) based on the grounds that the letter dated 18th March, 1985, was not considered an order under section 195(2) of the IT Act. The Revenue contended that the CIT(A) erred in entertaining the appeal against the said letter. The CIT(A) had allowed the appeal of the assessee, who argued that the letter held them liable to deduct tax at source from payments to foreign contractors, providing them with the right to appeal under section 248 of the IT Act. However, it was found that the assessee had not fully complied with the tax payment requirements as directed by the AO, which is a fundamental condition for filing an appeal under section 248. The failure to pay the full tax amount invalidated the right to appeal, leading to the cancellation of the CIT(A)'s order and the restoration of the AO's decision.

Issue 2: Taxability of payments made to foreign contractors under the IT Act:
The dispute arose from the remittances made by the assessee to a consortium for setting up a charge chrome plant. The assessee argued that these payments did not have tax deduction implications under section 115A, citing reasons such as the nature of the receipts being capital and exempt under section 9(1)(vi)(b). The AO disagreed, asserting that the payments constituted revenue receipts in the consortium members' hands. The CIT(A) held that the payments represented royalty or fees for technical services, which were taxable. However, the CIT(A) acknowledged the exceptions under sections 9(1)(vi)(b) and (vii)(b) for payments related to business outside India, deeming the payments non-taxable. The Revenue appealed this decision, which was allowed based on the technical grounds of the appeal's maintainability. The judgment did not delve into the merits of the taxability issue, leaving it open for further consideration upon compliance with the tax payment requirements and a fresh appeal.

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