2022 (3) TMI 615 - AT - Income Tax

TDS u/s 195 - disallowance u/s 40(a)(i) - non deduction of tax on payments made to CGTM France towards flight testing services - assessee submitted that the services provided by CGTM France did not satisfy the condition of make available on technical knowledge and skill to the assessee in view of India-France treaty r.w India-Portugal treaty thus tax was not required to be deducted at source - HELD THAT - The fees paid towards the services in question here is purely towards the testing of Shakti Engines in order to identify the issues of Air inlet distortion and installation losses. The subsequent action of the assessee to carry out the improvement based on the test results given by CGTM France cannot be considered as a basis for make available services rendered by CGTM France to the assessee. Conducting the test and subsequent improvement to the engines based on test results are independent activities and cannot be considered together. As contended by the assessee, the test conducted by CGTM France cannot be independently carried out by the assessee without the support of engineers from CGTM France and hence does not satisfy the conditions of make available that the services rendered by CGTM France to the assessee. It is settled law that mere rendering of services would not be taxable unless the person receiving the services is enabled to utilize such services on its own in the future without having recourse to the person providing the service. See DE BEERS INDIA MINERALS (P.) LTD. 2012 (5) TMI 191 - KARNATAKA HIGH COURT . We are of the considered opinion that fees paid by the assessee to CGTM France is not in the nature of fees for technical services and hence does not attract the provisions of sec. 195 with regard to requirement for deduction of tax at source on payment of fees for technical services of an resident outside India. As a result, no disallowance is warranted u/s 40(a)(ia) of the expenses claimed by the assessee towards payment of service charges to CGTM France. Accordingly, we allow the appeal in favour of the assessee.

Summary

Issues Involved:
1. Validity of order passed by CIT(A) under section 250 of the Income-tax Act, 1961.
2. Legality of upholding the reopening of assessment proceedings under section 147 of the Act.
3. Disallowance amount under section 40(a)(i) of the Act.
4. Granting of TDS credit to the company.
5. Legality of levying interest under Section 234B of the Act.

Issue 1: Validity of CIT(A) Order (Sec. 250 of the IT Act):
The appeal challenged the order of the CIT(A) dated 09/11/2017 for the assessment year 2009-10. The assessee contended that the order prejudicial to them is bad in law and sought its quashing. The Tribunal examined the grounds raised by the assessee and proceeded to analyze each issue in detail.

Issue 2: Reopening of Assessment Proceedings (Sec. 147 of the IT Act):
The case involved the reopening of assessment proceedings under section 147 of the Act. The AO initially determined the income of the assessee at a certain amount, which was subsequently rectified. The proceedings were reopened once again, leading to an addition under section 40(a)(ia) for non-deduction of tax on payments made to a company for flight testing services.

Issue 3: Disallowance under Sec. 40(a)(i) of the Act:
The dispute centered around the disallowance of a payment made to a company for technical assistance for flight testing services. The AO contended that tax should have been deducted at source on these payments. The CIT(A) upheld the disallowance, stating that the nature of services rendered satisfied the condition of "making available," requiring tax deduction at source.

Issue 4: TDS Credit to the Company:
The assessee argued that no technology was made available by the service provider, thereby challenging the requirement to deduct tax at source. The Tribunal considered the specific services provided and the nature of technical knowledge imparted to determine whether the "make available" condition was met.

Issue 5: Legality of Levying Interest (Sec. 234B of the Act):
The appeal also raised concerns regarding the legality of levying interest under Section 234B of the Act. However, the Tribunal's decision primarily focused on the disallowance under section 40(a)(ia) concerning the non-deduction of tax on payments made for technical services.

In conclusion, the Tribunal allowed the appeal in favor of the assessee, ruling that the fees paid to the service provider were not in the nature of fees for technical services. The Tribunal held that the services provided did not meet the criteria of "making available" technical knowledge, thereby not attracting the provisions of section 195 for tax deduction at source. Consequently, no disallowance was warranted under section 40(a)(ia), leading to the allowance of the appeal.