2015 (5) TMI 745 - AT - Income Tax

Validity of Revision of assessment order - Set-off of losses against income enhanced vide TPO order u/s 92CA(3) of IT Act - Income under Double Taxation between India and United Kingdom - Applicability of Surcharge & Education cess on income covered under DTAA - Held that - As far as the first objection of the Ld. Commissioner about the correct method of the computation of assessed income is concerned, since other authority of the Revenue Department i.e. DRP has already held that the benefit of set offcarry forward of losses are to be computed as per the regular provisions of the Act, therefore, we hereby hold that there was no legal sanctity on the part of Ld. Commissioner to direct the AO to verity and decide afresh this issue. Further, we hereby hold that the decision of Hon ble Delhi High Court pronounced in the case of DG Housing Project Ltd. 2012 (3) TMI 227 - DELHI HIGH COURT is applicable wherein it was held that the Ld. Commissioner again remitting the matter for a fresh decision to the AO to conduct further inquiries without a finding that the order of the AO is erroneous is not sustainable. Therefore, we are of the view that the manner in which the Ld. Commissioner has given direction to the AO are not in line with several decisions of Hon ble courts namely, Arvind Jewellers 2005 (7) TMI 90 - GUJARAT High Court . About the second issue raised by Ld. Commissioner, we hereby hold that firstly the AO has examined that issue on those relevant facts hence cannot be said to have committed an error and secondly the issue can not be said to be controversial because in the case of DIC Asia Pacific Lt. 2012 (6) TMI 686 - ITAT, KOLKATA , it was held that Surcharge and education cess is not applicable on income covered under DTAA . Moreover,We have noted that Ld. Commissioner has not demonstrated any breach of law or procedure by the AO to allege that the impugned order of the AO was prejudicial to the interest of the revenue. Rather the direction of Ld. Commissioner appears to be general in nature asking the AO to verify the facts again afresh. In the absence of any independent finding and leaving the AO to start a fresh investigation is not within the powers assigned us. 263 of the IT Act. We therefore hold that the order us. 263 is not sustainable in the eyes of law. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the CIT's order under section 263 of the IT Act.
2. Set-off of Arm's Length Price against current year's business loss.
3. Application of section 263 in relation to disallowance under section 40(a)(i).
4. Short deduction of TDS and its implications under section 40(a)(i).
5. Consideration of judicial precedents regarding surcharge and cess in withholding tax rates under section 195.

Issue-Wise Detailed Analysis:

1. Validity of the CIT's order under section 263 of the IT Act:
The appellant challenged the order passed by the CIT under section 263, claiming it was "bad in law" as the original order by the AO under section 143(3) was neither erroneous nor prejudicial to the interest of revenue. The Tribunal observed that the CIT did not record any findings that the AO's order was erroneous or prejudicial to the revenue's interest. The Tribunal emphasized that the CIT's direction to the AO to conduct further inquiries without a finding of error in the AO's order is not sustainable, referencing the Hon'ble Delhi High Court's decision in ITAT vs. DG Housing Project Ltd 343 ITR 329 (Delhi).

2. Set-off of Arm's Length Price against current year's business loss:
The CIT objected to the AO's adjustment of business loss against the enhancement of income made by the TPO under section 92CA(3). The Tribunal noted that the DRP had directed the AO to allow the benefit of set-off/carry forward of losses as per the regular provisions of the Act, which contradicted the CIT's view. The Tribunal held that the CIT had no legal basis to direct the AO to re-verify and decide this issue afresh.

3. Application of section 263 in relation to disallowance under section 40(a)(i):
The CIT applied section 263, arguing that the AO had taken a possible view under the law regarding disallowance under section 40(a)(i). The Tribunal found that the AO had examined the TDS provisions and the applicability of section 40(a)(i), and the CIT's direction for further verification was unnecessary, as the AO had already applied his mind to the issue.

4. Short deduction of TDS and its implications under section 40(a)(i):
The CIT noted a short deduction of TDS on management charges paid to a UK company, which attracted disallowance under section 40(a)(i). The Tribunal observed that the AO had considered the relevant facts and the provisions of the DTAA between India and the UK, which did not require adding surcharge and cess to the tax. The Tribunal referenced the case of DIC Asia Pacific Ltd. vs. ACIT International taxation 22 taxmann.com 310 (Kolkata), which supported the appellant's view that education cess is an additional surcharge and should not be added to the tax under the DTAA provisions.

5. Consideration of judicial precedents regarding surcharge and cess in withholding tax rates under section 195:
The Tribunal noted that the CIT failed to appreciate judicial precedents that held no surcharge and cess should be added to withholding tax rates under section 195 in view of the DTAA. The Tribunal referenced the decision in DIC Asia Pacific Ltd. vs. ACIT, which clarified that education cess is an additional surcharge and should not be levied in respect of the tax liability of the assessee-company.

Conclusion:
The Tribunal concluded that the CIT's order under section 263 was not sustainable in law, as the CIT had not demonstrated any breach of law or procedure by the AO. The Tribunal allowed the appeal, setting aside the CIT's order and affirming the AO's original assessment.