2014 (7) TMI 1066 - AT - Income Tax

Cryptic order passed by CIT(A) - Interest expenses disallowed u/s 40(a)(ia) Failure to deduct TDS u/s 194I - Business of software and hardware development projects from USA - CIT(A) has not considered the three ingredients of section 68 of the Act, i.e. creditworthiness, identity and genuineness of the transaction - CT(A) has also not discussed how he has satisfied regarding the genuineness and source of the share application money in investing in the assessee company - the CIT(A) has passed a cryptic order without discussing the issue in detail Relying upon CIT vs. Kanpur Coal Syndicate 1964 (4) TMI 18 - SUPREME Court - the power of the CIT(A) is co-terminus with that of the AO - the FAA can do what the AO can do and direct him to do what he has failed to do - it was the duty of the CIT(A) to verify the source of investment of share application money - Since CIT(A) has failed to do the above exercise, the order of the CIT(A) is set aside and the matter remande for fresh adjudication Decided in favour of assessee.

Summary

Issues:
1. Disallowance of internet service provider payments under section 40(a)(ia) of the Income Tax Act, 1961
2. Addition of unexplained cash credit in respect of share application money including share premium money

Analysis:

Issue 1: Disallowance of Internet Service Provider Payments
The appellant challenged the disallowance of internet service provider payments under section 40(a)(ia) of the Income Tax Act. The appellant argued that the payments to ISPs did not fall under the definition of technical services under section 9(1)(vii) as there was no involvement of a human element in providing the service. Citing the case of CIT vs. Bharti Cellular Ltd., the appellant contended that ISPs do not attract the provisions of section 194J. The appellant further highlighted that the expenses were not treated as royalty in their accounts and no TDS was liable on these payments as they did not constitute technical services. Moreover, the appellant raised concerns about the retrospective amendment in the Finance Act 2012, stating that it should not burden them for past events. The appellant emphasized that the disallowance would distort their income tax filing and requested relief based on these grounds.

Issue 2: Addition of Unexplained Cash Credit
Regarding the addition of unexplained cash credit in respect of share application money, the revenue appealed against the deletion of the addition made by the Assessing Officer. The CIT(A) deleted the addition based on a remand report without adequately verifying the creditworthiness, identity, and genuineness of the transaction involving Dr. P.K. Mohanty, Trustee of TRFI. The Tribunal observed that the CIT(A) passed a cryptic order without discussing these crucial aspects. Referring to the case law, the Tribunal held that the CIT(A) should have conducted a thorough verification similar to that of the AO. As the CIT(A) failed to fulfill this obligation, the Tribunal reversed the order and remanded the matter back to the CIT(A) for a detailed examination in accordance with the law, providing both parties with a reasonable opportunity to present their case.

In conclusion, the Tribunal allowed the appeals filed by both the assessee and the revenue for statistical purposes, emphasizing the importance of proper verification and detailed analysis in tax assessments and appeals.