2015 (11) TMI 915 - AT - Income Tax

Disallowance under section 40(a)(ia) - professional charge paid to non-resident in foreign currency outside India - DTAA - Held that - The learned authorised representative could not controvert that the aforesaid individuals had not rendered technical service to the assessee, however he pleaded that the Revenue authorities have not looked into the direct tax avoidance agreement for making the disallowance under provisions of the Act by which the disallowance would be considerably reduced and therefore, requested the matter may be remitted back to the file of the learned Assessing Officer for consideration of the same. The learned Departmental representative though opposed to the submissions of the learned authorised representative, could not rebut to the claim of the learned authorised representative After hearing both sides, we are of the considered view that in the interest of justice the matter has to be remitted back to the file of the learned Assessing Officer to look into the Double Taxation Avoidance Agreement in order to compute the disallowance as per the provisions of the Act. Accordingly, we remit the case to the file of the learned Assessing Officer for fresh consideration in the light of the observations made hereinabove and the prayer of the learned authorised representative. - Decided in favour of assessee for statistical purposes.

Summary

Issues:
- Disallowance under section 40(a)(ia) of the Act towards professional charge paid to non-resident individuals.
- Consideration of Double Taxation Avoidance Agreement in determining professional charges.

Analysis:
1. The appeal was filed by the assessee against the order of the Commissioner of Income-tax (Appeals) regarding the disallowance under section 40(a)(ia) of the Act for professional charges paid to non-resident individuals. The assessee contended that the Commissioner erred in upholding the disallowance and not considering the Double Taxation Avoidance Agreement.

2. The assessee, a domestic company engaged in the manufacturing and sale of rubber retreating machinery, filed its return of income for the assessment year 2010-11. During assessment proceedings, it was observed that the assessee had paid significant amounts to non-resident individuals for technical services without deducting tax at source, leading to the invocation of section 40(a)(ia) by the Assessing Officer. The Commissioner upheld the disallowance, stating that the payments were for technical services falling under section 195 of the Act.

3. The Commissioner's order highlighted specific cases of professional charges paid to non-resident individuals, such as Mr. Anthony Battaglia and Mr. Harry Davis. The details provided indicated that the services rendered were technical in nature, qualifying as fees for technical services under section 9 of the Income-tax Act. The absence of written agreements and insufficient details led to the confirmation of disallowances by the Assessing Officer and subsequently by the Commissioner.

4. During the appeal, the authorized representative of the assessee acknowledged that the individuals had provided technical services but argued that the Double Taxation Avoidance Agreement should be considered to reduce the disallowance. The Tribunal, after considering both sides, remitted the case back to the Assessing Officer to reevaluate the disallowance in light of the Double Taxation Avoidance Agreement, emphasizing the need for a fresh assessment based on the observations made.

5. The Tribunal allowed the appeal for statistical purposes, indicating that the matter required further examination concerning the applicability of the Double Taxation Avoidance Agreement. The decision was made in the interest of justice, emphasizing the importance of considering international agreements in tax matters.