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2017 (9) TMI 1405 - AT - Income TaxAddition u/s.40(a)(ii) - AO disallowed the amount of TDS on payment of royalty pursuant to Technical Collaboration Agreement - TDS borne by the resident Indian payer - deemed income of the recipient - Held that - The provisions of Section 40(a)(ii) would apply only in a situation where the appellant has paid taxes on his own income and not in respect to income of others on which the appellant has paid taxes as per conditions of the agreements. See Karan Johar Vs. DCIT 2011 (3) TMI 202 - ITAT MUMBAI and Dashmesh Transport Co. (P) Ltd. vs. CIT (1973 (10) TMI 1 - PUNJAB AND HARYANA High Court ). CIT-A correctly held that TDS borne by the resident Indian payer is to be deemed as the income of the recipient and it is only out of such income of the recipient, the Indian payer is deemed to withhold the TDS at the appropriate rate and pay to the Govt. it was further observed by the Tribunal that what the Indian payer deposits to the Govt. cannot be construed as tax of the non-resident being borne by the Indian resident payer, but the amount paid is only out of the deemed income of the recipient and the same would not fall within the definition of tax on income for disallowance u/s 40(a)(ii) of the Act. - Decided against revenue
Issues:
Appeal against CIT(A)'s order allowing TDS under section 40(a)(ii) - Disallowance of TDS by AO - Interpretation of section 40(a)(ii) - Application of judgments in similar cases. Analysis: The appeals by the Revenue challenged the CIT(A)'s decision regarding the Tax Deducted at Source (TDS) under section 40(a)(ii). The Assessments for the years 2010-11 and 2011-12 were framed by the DCIT Circle 8(1), Mumbai. The main issue in both appeals was the CIT(A)'s allowance of TDS, with the Revenue contending that section 40(a)(ii) should apply. The AO disallowed the TDS amounting to ?20,61,771 under section 40(a)(ii) of the Income Tax Act, 1961. However, the CIT(A) relied on the decision of Mumbai ITAT in the case of Karan Johar Vs. DCIT and allowed the claim of the assessee. The CIT(A) emphasized that the TDS borne by the resident Indian payer should be deemed as the income of the recipient, not falling within the definition of tax on income for disallowance under section 40(a)(ii). The appellant argued that the TDS was on the income of the foreign entity, not the company, and cited relevant judgments to support their contention. They highlighted the decision of the ITAT 'B' Bench and various High Court judgments to establish that the tax paid on behalf of another entity should not be disallowed under section 40(a)(ii). The CIT(A) agreed with the appellant's arguments and deleted the disallowance of ?20,61,771 made by the AO under section 40(a)(ii). The Senior DR could not find any fault in the CIT(A)'s decision and supported the AO's order. The Tribunal found that the issue was conclusively settled in favor of the assessee by the decision in the case of Karan Johar and the judgment of the Punjab and Haryana High Court in Dashmesh Transport Co. (P) Ltd. vs. CIT. Consequently, the appeals by the Revenue were dismissed, upholding the CIT(A)'s decision to allow the TDS. The Tribunal's decision was based on the precedent set by the co-ordinate Bench and the legal interpretations provided by the cited judgments. In conclusion, the Tribunal upheld the CIT(A)'s decision to allow the TDS, emphasizing the correct interpretation of section 40(a)(ii) in light of relevant judicial precedents and legal principles. The appeals by the Revenue were dismissed, affirming the assessee's position regarding the TDS disallowance.
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