2011 (9) TMI 632 - AT - Income Tax

Expenses relating to BPO charges - Truck Finance Business - services of three companies for providing office space and other infrastructure - Held That - 40(a)(ia) not applicable to A/Y 04-05 further ledger copies revealed that payments have beern made by assessee and expenditure has not been booked mainly by journal entries.- BPO charges allowed TDS - Access to Data base subject to 194C - Held That - In view of Associated Cement Co. Ltd v. CIT (1993 - TMI - 5403 - SUPREME COURT)for a work there has to be supply by the contracting party. But in the given case no supply of information (service/labour) is involved. The employees of the assessee-company are allowed access to database who themselves search the requisite information if they so require. Further Circular No. 681 dated March 8 1994 is bad in law TDS - Payment to Transport Co. for using Manpower - 194C or 194H - Held That - We are unable to find out that the relation of Principal and agent exists between the parties.CIT(A) has correctly treated this contract for supply of labour as works contract and upheld the deduction of tax @ 2%.

Issues Involved:
1. Disallowance of Business Process Outsourcing (BPO) charges.
2. Disallowance of data access fees.
3. Application of Section 194C and Section 40(a)(ia) of the Income Tax Act.
4. Applicability of Section 194H to the payments made by the assessee.

Detailed Analysis:

1. Disallowance of Business Process Outsourcing (BPO) Charges:
The first issue pertains to the disallowance of BPO charges amounting to Rs. 3,79,90,602/-. The Assessing Officer (AO) disallowed these charges, which were paid to three companies for providing support services related to the assessee's insurance business. The CIT(A) deleted the disallowance, relying on an earlier order for the assessment year 2004-05, which was upheld by the Tribunal. The Tribunal found that the assessee had entered into outsourcing agreements with three companies, utilizing their infrastructure and manpower for various services, including client support, market survey, and claims management. The Tribunal confirmed that these services were essential for the assessee's business operations and that the AO had disallowed the claim without proper examination. Consequently, the Tribunal upheld the CIT(A)'s decision, allowing the BPO charges.

2. Disallowance of Data Access Fees:
The second issue involves the disallowance of data access fees amounting to Rs. 2,21,50,200/-. The assessee paid this amount to three sister concerns for providing access to their customer databases. The AO disallowed the payment under Section 40(a)(ia) of the Act due to non-deduction of tax at source (TDS) under Section 194C. The CIT(A) deleted the disallowance, reasoning that the payment for access to a database does not constitute a contract for work under Section 194C. The Tribunal agreed with the CIT(A), noting that the finance companies only allowed access to their databases without rendering any service or supplying information. The Tribunal also referenced the Supreme Court's definition of "work" and the quashing of CBDT Circular No. 681 by the Bombay High Court, which had expanded the scope of Section 194C to include service contracts. The Tribunal concluded that the payment for database access did not fall under Section 194C, and thus, the provisions of Section 40(a)(ia) were not applicable.

3. Application of Section 194C and Section 40(a)(ia) of the Income Tax Act:
The Tribunal examined whether the payments for data access and BPO charges were subject to TDS under Section 194C and consequently disallowable under Section 40(a)(ia) for non-deduction. The Tribunal concluded that the payments for data access did not involve any "work" as defined under Section 194C, and thus, TDS was not required. Similarly, the BPO charges were for essential business services and were properly supported by agreements and payments, negating the need for disallowance under Section 40(a)(ia).

4. Applicability of Section 194H to the Payments Made by the Assessee:
The final issue involved the applicability of Section 194H, which pertains to TDS on commission or brokerage, to the payments made by the assessee for using the manpower of three finance companies. The AO argued that these payments were in the nature of commission, requiring TDS at 5% under Section 194H. However, the CIT(A) and the Tribunal found that the payments were for a works contract involving the supply of labour, subject to TDS at 2% under Section 194C. The Tribunal upheld the CIT(A)'s decision, rejecting the AO's contention that the relationship between the parties was that of a principal and agent, which would attract Section 194H.

Conclusion:
The Tribunal dismissed all the appeals filed by the Revenue, upholding the CIT(A)'s decisions on all issues. The Tribunal confirmed that the payments for BPO charges and data access fees were legitimate business expenses and not subject to disallowance under Sections 194C and 40(a)(ia). Additionally, the Tribunal ruled that the payments for using the manpower of the finance companies were correctly subjected to TDS under Section 194C, not Section 194H.

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