2014 (12) TMI 258 - HC - Income Tax

Disallowance on work penalty expenses u/s 40(a)(ia) - Whether the work penalty expenses were actually interest expenses liable to provisions of TDS Held that - The Tribunal rightly upheld the decision of CIT(A) that the memorandum of understanding between the assessee and M/s. Unitech Limited did not provide for payment of any interest and as per the terms of the agreement, the entire work had to be completed by the assessee as per the terms of the contract entered into between M/s. Unitech and the main contractee and the assessee was required to indemnify M/s. Unitech Limited for any delay effect or other liability arising from non-performance or non-observance of the stipulation of the main contract - the payment to M/s. Unitech Limited was interest only because it had been debited as such in the books of account of M/s. Unitech Limited. No efforts whatsoever had been made by the AO to prove that the details filed by M/s. Unitech Limited or that the certificate that the payments made by the assessee were not interest, is wrong - the assessee had no control whatsoever over the books of account for the accounting entries passed by M/s. Unitech Limited in its books of account and in the light of the memorandum of understanding between the assessee and M/s. Unitech Limited, which did not provide for levy of any interest, the amount was not in the nature of interest, and the assessee was not required to deduct any TDS on such amount and that there was no question of applying the provisions of section 40 (a)(ia) of the Act thus, the order of the Tribunal is upheld as no substantial question of law arises for consideration - Decided against revenue.

Summary

Issues:
1. Disallowance of expenses claimed as "work penalty expenses" under section 40(a)(ia) of the Income Tax Act, 1961.
2. Ignoring the cross account filed by Unitech showing the amount as interest.
3. Ignoring the subsequent certificate filed by the assessee from Unitech Ltd without supporting evidence.

Issue 1: Disallowance of expenses under section 40(a)(ia):
The appeal concerned the disallowance of Rs. 77,67,754 claimed as "work penalty expenses," which were deemed interest expenses liable to TDS provisions. The Assessing Officer made the addition under section 40(a)(ia) due to non-deduction of TDS on interest payment made to M/s. Unitech Limited. The Commissioner (Appeals) upheld the addition, but the Tribunal remanded the matter for further examination. In subsequent proceedings, the Commissioner (Appeals) deleted the disallowance, which was upheld by the Tribunal. The appellant argued that the payment was on account of interest or contractual liability, thus subject to TDS. However, the Commissioner (Appeals) found that the amount was paid due to extra costs incurred by Unitech because of the appellant's failure to complete the subcontracted work. The Tribunal concurred with these findings, concluding that no TDS was required, and section 40(a)(ia) was inapplicable.

Issue 2: Ignoring cross account filed by Unitech:
The appellant contended that the amount in question was shown as interest expenses in Unitech's accounts, suggesting it was interest. However, the Commissioner (Appeals) found that the payment was due to extra costs incurred by Unitech, not interest as per the agreement terms. The Tribunal upheld this finding, emphasizing that the appellant had no control over Unitech's accounting entries and that the memorandum of understanding did not provide for interest payment. Therefore, the Tribunal dismissed the appellant's argument regarding the cross account filed by Unitech.

Issue 3: Ignoring subsequent certificate without evidence:
The appellant raised concerns about a subsequent certificate filed by the assessee from Unitech Ltd, claiming the amount was recovered due to settlement of claims. The Commissioner (Appeals) found that the certificate lacked supporting evidence and that the payment was due to the appellant's failure to complete the subcontracted work. The Tribunal concurred with these findings, emphasizing the lack of proof that the payment was interest. As a result, the Tribunal dismissed the appellant's argument regarding the subsequent certificate filed without supporting evidence.

In conclusion, the Tribunal upheld the Commissioner (Appeals)'s decision to delete the disallowance under section 40(a)(ia) as the payment was deemed to be due to extra costs incurred by Unitech, not interest. The Tribunal's decision was based on the evidence presented and concurred findings of fact, warranting no interference. Therefore, the appeal was summarily dismissed.