2024 (2) TMI 784 - AT - Income Tax

TDS u/s 195 - Sales commission paid to foreign company - non deduction of TDS - addition u/s 40(a)(i) - case made by the assessee is this that since the services rendered to the appellant by the said foreign company have been held not falling within the ambit of FTS or under Article 12 of the DTAA, the appellant is also not liable to deduct TDS on the payment so made - HELD THAT - The issue is squarely covered in the case of M/s. Manthan System Inc. 2022 (9) TMI 1555 - ITAT BANGALORE as held since it has already been decided by the Coordinate Bench that the services rendered to the assessee by the said Manthan Systems Inc. is not falling within the ambit of FTS or under Article 12 of the treaty, the assessee is not liable to deduct TDS on the payment made to the MSI. We find no ambiguity in the order passed by the Ld.CIT(A) in holding that there is no liability to deduct TDS and accordingly, deletion of addition made to the assessee s income in respect of sales commission under section 40(a)(i) is found to be just and proper so as to warrant interference - Decided in favour of assessee. Addition in respect of ESOP expenses - allowable revenue expenses or not? - HELD THAT - The issue is squarely covered by the judgment of Hon ble Karnataka High Court in case of CIT, LTU vs. Biocon Ltd 2020 (11) TMI 779 - KARNATAKA HIGH COURT as held incurring of the expenditure by the assessee entitles him for deduction under Section 37(1) of the Act subject to fulfillment of the condition. The deduction of discount on ESOP over the vesting period is in accordance with the accounting in the books of accounts, which has been prepared in accordance with Securities And Exchange Board of India (Employee Stock Option Scheme and Employee Stock Purchase Scheme) Guidelines, 1999. Thus as the assessee has incurred a definite legal liability and on following the mercantile system of accounting, the discount on ESOPs has rightly been debited as expenditure in the books of account. Disallowance of Provision for Doubtful debts - HELD THAT - We find that the assessee reduced the provision for doubtful debts from sundry debtors in the balance sheet as filed before us. It further appears that the sundry debtors were shown net of provision for doubtful debts in the balance sheet. Thus keeping in view the ratio laid down by Hon ble Supreme Court in case of Vijaya Bank vs. CIT 2010 (4) TMI 46 - SUPREME COURT , we hold that the provision for doubtful debts is allowable and thus the addition made by the revenue are hereby deleted.

Summary

Issues Involved:
1. Reopening of assessment under section 148.
2. Deletion of addition in respect of sales commission paid to Manthan Systems Inc. under section 40(a)(i) of the Act.
3. Deletion of addition in respect of ESOP expense.
4. Disallowance of provision for doubtful debts.

Summary:

Reopening of Assessment under Section 148:
The assessee's counsel did not press the ground challenging the reopening of assessment under section 148 for A.Ys. 2012-13 to 2014-15. Consequently, the appeals and cross objections on this ground were dismissed as not pressed.

Deletion of Addition in Respect of Sales Commission Paid to Manthan Systems Inc. under Section 40(a)(i) of the Act:
The assessee, a software company, paid sales commission to its wholly-owned subsidiary, Manthan Systems Inc. (MSI) in the USA. The AO disallowed this under section 40(a)(i) for non-deduction of TDS. The CIT(A) reversed this, holding that the commission does not fall within the ambit of FTS or under Article 12 of the DTAA, and thus, no TDS was required. This was supported by the ITAT in the case of M/s. Manthan System Inc. vs. DCIT. The ITAT upheld the CIT(A)'s decision, noting that the services provided by MSI were marketing services and not technical or consultancy services, and did not make available any technical knowledge or skill to the assessee.

Deletion of Addition in Respect of ESOP Expense:
The CIT(A) deleted the addition made by the AO on account of ESOP expenses, relying on the Karnataka High Court's judgment in CIT, LTU vs. Biocon Ltd., which held that the discount on ESOPs is allowable as a deduction under Section 37 of the Act. The ITAT upheld this decision, noting that the ESOPs vest over a period and represent an ascertained liability, not a contingent one.

Disallowance of Provision for Doubtful Debts:
For A.Y. 2015-16, the CIT(A) confirmed the AO's disallowance of the provision for doubtful debts. The assessee argued that the provision was reduced from sundry debtors in the balance sheet, making it allowable as per the Supreme Court's decision in Vijaya Bank vs. CIT. The ITAT agreed with the assessee, noting that the provision was shown net of sundry debtors and allowed the deduction, deleting the addition made by the revenue.

Conclusion:
All the appeals filed by the revenue were dismissed, and the cross objections filed by the assessee were dismissed on legal issues except for the one related to the provision for doubtful debts, which was partly allowed.