2012 (5) TMI 439 - AT - Income Tax

Non deduction of TDS - Payment to directors - Disallowance under section 40(a)(ia) - TDS u/s 194H or 192 - held that - the commission paid to directors as per terms of employment for the work done in their capacity as whole-time directors is to be treated as incentive in addition to salary, etc. and did not come within the purview of commission and brokerage as defined in section 194H or fee for professional or technical services as defined in s. 194J and therefore, same cannot be disallowed under s. 40(a)(ia) of the Act. - Decided in favor of assessee.

Summary

Issues:
Appeal against disallowance of commission payment under section 40(a)(ia) of the Income Tax Act.

Analysis:
The appeals and cross-objections arose from orders of the CIT(A)-XII, Kolkata regarding the disallowance of commission payment by the Assessing Officer under section 40(a)(ia) of the Income Tax Act. The main issue revolved around whether the commission paid to directors should be treated as part of salary, thus falling under the provisions of section 192 for TDS deduction. The assessee argued that the commission was part of salary and TDS was deducted under section 192. The CIT(A) supported the assessee's position, citing relevant case laws. The Revenue contended that the commission was separate from salary and should have been subject to TDS under section 194H. The Tribunal noted that the assessee had indeed deducted tax under section 192 for salary payments, which favored the assessee's position. The Tribunal referenced a previous decision to support the view that TDS deduction under a different section does not warrant disallowance under section 40(a)(ia).

The Revenue further argued that the payments made to sub-contractors were for machinery hire charges falling under the category of 'rent', requiring TDS deduction under section 194I. The Revenue claimed that the assessee had deducted tax at a lower rate under section 194C(2) instead of the required rate under section 194I. However, the Tribunal found that the assessee had deducted tax under the appropriate section and there was no evidence of non-depositing the TDS with the Government. The Tribunal emphasized that the provisions of section 40(a)(ia) only apply when tax is deductible but not deducted, and in cases of genuine deduction, even if under a different section, the disallowance cannot be invoked. The Tribunal dismissed the Revenue's appeals, upholding the CIT(A)'s order. As a result, the Cross Objections of the assessee were also dismissed, being supportive of the CIT(A)'s decision.

In conclusion, the Tribunal confirmed the order of the CIT(A) and dismissed both the appeals of the Revenue and the Cross Objections of the assessee. The decision was based on the proper deduction of TDS by the assessee and the lack of grounds for disallowance under section 40(a)(ia) of the Income Tax Act.