2024 (5) TMI 1067 - AT - Income Tax

TDS u/s 195 - FTS payments - non deduction of TDS - disallowance u/s 40(a)(i) - I nterpretation of 'Make Available' clause - demand u/s 201(1) and 201(1A) - as argued source of payment being located in India, the payer being in India, India being following source rule, the exception to Section 9(1)(vii)(b) of the Act is not attracted - HELD THAT - We notice that for the Assessment Years 2011-12 to 2017-18, the Tribunal, vide its consolidated order 2020 (3) TMI 1438 - ITAT BANGALORE had decided the issue in favour of the assessee. The Tribunal had examined in detail the agreement entered into by the assessee with its payee and the nature of services rendered, etc. Thereafter, it was concluded by ITAT that the payments cannot be attributed as FTS and assessee cannot be made liable under section 201 of the Act. In light of the above orders of the Tribunal which was confirmed by the Hon ble High Court 2023 (3) TMI 422 - KARNATAKA HIGH COURT in assessee s own case for Assessment Years 2011-12 to 2017-18, we reject the contentions raised by the Department.

Summary

Issues:
- Condonation of delay in filing appeals for Assessment Years 2016-17 and 2017-18
- Determination of payments made for marketing services as Fees for Technical Services (FTS)
- Interpretation of the term "make available" in the context of FTS
- Disallowance of payments under section 40(a)(ia) of the Income Tax Act, 1961

Analysis:
The judgment deals with the condonation of delay in filing appeals by the Revenue for Assessment Years 2016-17 and 2017-18. The Tribunal, after perusing the reasons for the delay, found reasonable cause and no latches on the Revenue's part. Consequently, the delay of 37 days and 44 days was condoned, and the appeals were taken up for disposal on merits.

The main issue in the appeals revolved around the determination of payments made by the assessee company for marketing services as Fees for Technical Services (FTS). The AO disallowed these payments under section 40(a)(ia) of the Act for non-deduction of TDS under section 195. The CIT(A) had decided in favor of the assessee, holding that the payments did not qualify as FTS. The Tribunal referred to previous orders and concluded that the payments could not be attributed as FTS, absolving the assessee from liability under section 201 of the Act.

A crucial aspect of the case was the interpretation of the term "make available" in the context of FTS. The Revenue argued that technical services provided should be taxed even if short-term or temporary, emphasizing the importance of management/commercial/advisory services. However, the Tribunal, based on previous orders, rejected the Revenue's contentions, highlighting that the services in question did not fall under FTS as per the detailed examination of the agreement and nature of services provided.

The judgment also discussed the disallowance of payments under section 40(a)(ia) of the Act due to non-deduction of TDS. The Tribunal referenced its previous order where it had decided in favor of the assessee for Assessment Years 2011-12 to 2017-18. The Hon'ble High Court had confirmed the Tribunal's decision, leading to the dismissal of the Revenue's appeals. Consequently, the Tribunal rejected the Department's contentions and dismissed the appeals filed by the Revenue for the years in question.

In conclusion, the Tribunal upheld the decisions made in favor of the assessee based on previous orders and the interpretation of relevant provisions, leading to the dismissal of the appeals filed by the Revenue.