Though in Bharati Shipyard 132 ITD 53 (Mum)(SB), it was held that the amendment to s. 40(a)(ia) by the FA 2010 w.e.f. 1.4.2010 cannot be treated to be retrospective, a contrary view has been taken by the Calcutta High Court in CIT vs. Virgin Creations. As this is the sole High Court judgement on the point, it has to be followed in preference to the view of the Special Bench. Accordingly, the amendment to s. 40(a)(ia) by the FA 2010 is applicable retrospectively from 1.4.2005 and no disallowance u/s 40(a)(ia) can be made if the TDS is paid on or before the due date for filing the ROI (Piyush C. Mehta (Mum) & M.K. Gurumurthy (Bang) followed)

Though a firm and its partners are not different entities in general law, under the Act, they are treated as separate entities. The salary and interest paid by the firm to the partners is deductible in the hands of the firm and taxable in the hands of the partners u/s 28(v). The balance profits are taxed in the hands of the firm and exempt in the hands of the partners u/s 10(2A). As s. 10(2A) provides that the share of profit of the partner shall not be included in his total income, it is not possible to hold that the share income is not excluded from the total income of the partner because the firm has already been taxed thereon. When s. 10(2A) speaks of its exclusion from the total income it means the total income of the person whose case is under consideration i.e. the partner. As the share income is excluded from his total income, s. 14A would apply and any expenditure incurred to earn the share income will have to be disallowed (Dhamasingh M. Popat 127 TTJ 63 (Mum) approved; Sudhir Kapadia & Hitesh Gajaria reversed)

There was no dispute that the assessee had in fact paid Alia. Though the Volker Committee report stated that the amounts paid to Alia were actually kickbacks to Iraqi regime, that fact per se would not attract Explanation to s. 37(1). In order to fall within the Explanation to s. 37(1), the expenditure has to be for “for any purpose which is an offence or which is prohibited by law“. Alia was a Jordanian company and while the transactions between Alia and the Iraqi regime may be contrary to the UN sanctions, the transactions between the assessee and Alia were not hit by the UN sanctions. The Revenue has not pointed out any other specific violation of law. The assessee’s payment accordingly cannot be said to be for a purpose which is an offence or which is prohibited by law. What the recipient of the payment does is not important from this perspective because the assessee has no control over the matter. It is not the case that the assessee knew that the monies would be used for the purposes of kickbacks to the Iraqi regime. The onus of demonstrating that the assessee was aware that the payments were intended for kickbacks is on the AO which has not been discharged. The “purpose” of the expenditure has to be seen. If the payment is for bonafide business purposes, the fact that they end up being used as illegal kickbacks, will not attract Explanation to s. 37(1). The commercial expediency of the payments was not called into question by the AO (TIL Ltd 16 SOT 33 (Kol) referred)

In Asia Satellite 332 ITR 340 (Del) it was held that in order to constitute “royalty”, the payer must have the right to control the equipment. A payment for a standard service would not constitute “royalty” merely because equipment was used to render that service. A similar view was taken in Skycell Communications 251 ITR 53 (Mad). In De Beers (Kar) & Guy Carpenter (Del) it was held that to “make available” technical knowledge, mere provisions of service was not enough and the payer had to be enabled to perform services himself. The department’s argument that the amendments by the Finance Act, 2012 changes the position is not acceptable because there is no change in the DTAA between India and USA and the DTAA prevails where it is favourable to the assessee

Under Article 5(5), an agent is deemed not to be of independent status when his activities are devoted exclusively or almost exclusively to the non-resident enterprises. Though in DHL Operations B.V. 142 TM 1 (Mum) it was held that the question whether the agent is “dependent” has to be seen from the perspective of the non-resident principal, this view cannot be followed because it is contrary to the language of Article 5(5). The wordings refer to the activities of an agent and its devotion to the non-resident and not the other way round. The perspective should be from the angle of the agent and not of the non-resident. As the income from the assessee was only 4.69% of the agent’s income, the agent was not a “dependent agent” (Morgan Stanley 272 ITR 416 (AAR) & Rolls Royce (Del) followed)

We would like to take this opportunity to bring to the notice of CBDT that after the procedure of Central processing of returns, many issues have come before various forums where unnecessary demands have been raised due to non-grant of TDS, wrong computation of income, adjustment of the previous year demand which have already been deleted by the jurisdictional assessing officer. Therefore, we would like to urge the CBDT to take up this matter urgently and establish proper coordination between the assessing authority and Central Processing Authority so that these problems are immediately solved and unnecessary litigation can be avoided. Copy of this order should be forwarded to the Chief Commissioner of Income-tax, Chandigarh and Chairman of CBDT for necessary action

The assessee’s argument that as the ground was taken in the memorandum of appeal, it was not an “additional ground” for which leave was required from the Tribunal is not acceptable because s. 253(1) permits an assessee “aggrieved” to file an appeal. A person can be “aggrieved” only if a ground had been raised and it is decided against him. S. 253(1) bars a ground which was not raised and not decided by the CIT(A) because there can be no grievance in respect of a matter which is not raised at all (Pokhraj Hirachand 49 ITR 293 (Bom) followed)

The contention of the Revenue that some expenditure, directly or indirectly, is always incurred for earning tax-free income cannot be accepted. The burden is on the AO to establish the nexus of the expenditure incurred with the earning of exempt income before making any disallowance u/s 14A (Hero Cycles 323 ITR 518 (P&H), Jindal Photo followed)

Under Article 7 of the DTAA, foreign PE profits may be taxed in India The assessee, an Indian PSU company, earned Rs. 10.68 crores from foreign projects in Oman etc. The assessee claimed that it had a “permanent establishment” (PE) …

Telecommunications Consultants India Ltd vs. ACIT (ITAT Delhi) Read More »

The term “tax” is defined in s. 2(43) to mean income-tax chargeable under the provisions of this Act. S. 37(1) allows a deduction of all taxes and rates. Taxes levied in foreign countries whether on profits or gains or otherwise are deductible u/s 37(1) not hit by s. 40(a)(ii). It is also not application of income. The same view has been taken by ITAT Mumbai in South East Asia Shipping Co & Tata Sons Ltd and the department’s Reference Applications u/s 256(1) & 256(2) were rejected and the issue has reached finality