2015 (8) TMI 313 - AT - Income Tax

Disallowance of depository charges paid u/s. 40(a)(ia) - Non deduction of TDS under Sec. 194C/194J - whether depository charges paid were for technical services? - Held that - Tax Authorities had not disputed the fact that the assessee paid depository charges without deducting the tax and taxes are already paid by the recipient. Since the amount was already paid and the taxes are paid by the recipient, in our opinion, the decision of the Special Bench in the case of Marilyn Shipping & Transports ( 2012 (4) TMI 290 - ITAT VISAKHAPATNAM ) to hold that the Tax Authorities have wrongly invoked provisions of section 40(a)(ia) in the instant case. Suffice to say that disallowance made by the AO is not called for in the circumstances of the case, in the light of the decision of the ITAT (supra), which in turn was based upon the decision of Vector Shipping Services (P) Ltd. 2013 (7) TMI 622 - ALLAHABAD HIGH COURT - Decided in favour of assessee.

Issues:
1. Reopening of assessment under section 148 without appreciating original assessment completion under section 143(3).
2. Disallowance of depository charges under section 40(a)(ia) without considering technical services.
3. Applicability of section 40(a)(ia) to amount payable and not already paid.
4. Interpretation of section 40(a)(ia) in relation to payments already made.

Issue 1: Reopening of assessment under section 148
The appeal challenged the CIT(A)'s decision upholding the reopening of assessment under section 148 without recognizing that the original assessment was completed under section 143(3). The appellant argued that the reopening was based on a mere change of opinion without new facts or tangible material, which is impermissible under the law. The appellant contended that the reassessment was unjustified as the original assessment had considered the provisions of section 40(a)(ia) and TDS provisions. The Tribunal noted the grounds raised by the appellant and proceeded to analyze the case.

Issue 2: Disallowance of depository charges under section 40(a)(ia)
The dispute centered around the disallowance of depository charges under section 40(a)(ia) totaling Rs. 6,27,423. The AO contended that the charges were for technical services falling under sections 194J and 194C, requiring TDS deduction. However, the appellant argued that the charges were not for technical services but for executing work under an agreement with depository participants. The Tribunal examined the nature of the charges and whether they fell under the purview of section 40(a)(ia) due to non-deduction of TDS.

Issue 3: Applicability of section 40(a)(ia) to amount payable
The appellant raised the argument that section 40(a)(ia) applies to amounts payable and not already paid. They relied on case law to support their contention. The Tribunal considered this argument and evaluated whether the section could be invoked based on the timing of payment by the assessee.

Issue 4: Interpretation of section 40(a)(ia) regarding payments already made
The Tribunal referred to a previous decision related to section 40(a)(ia) and payments already made. It was established that the provision of section 40(a)(ia) does not apply to payments already made, as the term 'payable' must be satisfied for its invocation. The Tribunal cited relevant case law and clarified that the section does not apply retrospectively to payments already completed. Consequently, the Tribunal set aside the orders disallowing the depository charges, emphasizing that the taxes were already paid by the recipient and the provisions of section 40(a)(ia) were wrongly invoked by the Tax Authorities.

In conclusion, the Tribunal allowed the appeal filed by the assessee, highlighting that the disallowance made by the AO was unwarranted in light of the decision on merit and the interpretation of section 40(a)(ia) in relation to payments already made. The judgment emphasized adherence to legal provisions and relevant case law in resolving the issues raised by the appellant.

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