2018 (4) TMI 388 - AT - Income Tax

Reopening of assessment - non deduction of tax at source on payment made towards inter connect and access cost - Held that - Undisputedly, action under section 147 of the Act in case of the assessee has been initiated before expiry of four years from the end of the relevant assessment year, therefore, the proviso to section 147 is not applicable. That being the case, the burden is on the assessee to demonstrate through cogent evidence that while completing the original assessment, the Assessing Officer has formed an opinion on the issue of non deduction of tax at source on payment made towards inter connect and access cost. Nothing has been brought before us by the assessee to demonstrate this fact. That being the case, the contention of the assessee that the re assessment proceeding under section 147 has been initiated on a mere change of opinion cannot be accepted. Therefore, upholding the validity of initiation of proceedings, we dismiss this ground TDS u/s 194J - Disallowance u/s 40(a)(ia) - Held that - Inter connect usage charges are not in the nature of fees for technical services, hence, the provisions of section 194J would not be applicable. In view of the aforesaid decision of the Co ordinate Bench in assessee s own case there is no obligation / liability on the assessee to deduct tax at source on payment of inter connect usage charges. Consequently, no disallowance under section 40(a)(ia) can be made for non deduction of tax at source. Therefore, we hereby delete the disallowance Disallowance of depreciation - similar disallowance has been made by the Assessing Officer in the rectification order passed under section 154 - Held that - Commissioner (Appeals), after considering the aforesaid submissions of the assessee has directed the Assessing Officer to verify the claim of the assessee and delete the disallowance in case it is found that similar disallowance has been made in the rectification order. We do not find any infirmity in the order of the learned Commissioner (Appeals) on this issue. When the only relief claimed by the assessee before the learned Commissioner (Appeals) is on the ground of double disallowance of depreciation and the learned Commissioner (Appeals) has addressed the grievance of the assessee by issuing necessary directions to the Assessing Officer to delete the disallowance in case of double disallowance, there is no need to interfere

Summary

Issues:
1. Validity of proceedings under section 147 of the Act challenged by the assessee.
2. Disallowance of &8377; 7,28,19,366 under section 40(a)(ia) contested by the assessee.
3. Addition of &8377; 8,67,68,976 on account of disallowance of depreciation disputed by the assessee.

Issue 1: Validity of Proceedings under Section 147:
The assessee contested the initiation of proceedings under section 147, claiming it was based on a mere change of opinion without tangible material. The Assessing Officer found non-deduction of tax at source on inter-connection and access charges, leading to disallowance. The Commissioner (Appeals) upheld the proceedings. The Tribunal noted that the burden was on the assessee to prove the original assessment did not address the tax deduction issue. As no evidence was presented, the challenge was dismissed.

Issue 2: Disallowance under Section 40(a)(ia):
The Assessing Officer disallowed &8377; 7,28,19,366 for non-deduction of tax at source on inter-connection charges. The Commissioner (Appeals) upheld this disallowance. The assessee argued that a Tribunal decision in a similar case favored non-applicability of tax deduction. The Tribunal agreed, citing the precedent, and deleted the disallowance, as there was no obligation to deduct tax at source on such payments.

Issue 3: Disallowance of Depreciation:
The Assessing Officer disallowed depreciation of &8377; 8,67,68,976 due to a reduction in asset cost based on a previous order. The Commissioner (Appeals) directed verification of double disallowance and to delete if already addressed. The Tribunal found no fault in the Commissioner's decision, as the only contention was about double disallowance, which was appropriately addressed. Therefore, the disallowance of depreciation was upheld.

In conclusion, the Tribunal partly allowed the assessee's appeal, deleting the disallowance under section 40(a)(ia) but upholding the disallowance of depreciation. The judgment was pronounced on 28.03.2018.