2016 (1) TMI 349 - AT - Income Tax

TDS u/s 194J - transaction charges paid to Stock Exchanges on which TDS was not deducted - assessee contended that it was under bona-fide belief TDS was not deductible and no disallowance be made u/s 40(1)(ia) - Held that - no tax on the transaction charges paid/allowed by the assessee to the stock exchange shall require being deducted for tax at source u/s 194J of the Act where the assessee is able to show that tax on the same has been paid by the payee i.e. has been offered as income subject to tax. The assessee is obliged to bring the relevant facts on record so as to satisfy the Assessing Officer with regard to the satisfaction of the condition i.e. payment of tax on the impugned sum subject to which only relief stands allowed to the assessee. - Decided in favour of assessee for statistical purposes.

Summary

Issues:
1. Disallowance of transaction charges under section 40(a)(ia) of the Income Tax Act.
2. Interpretation of whether transaction charges payable to stock exchanges constitute 'fees for technical services' and the requirement for TDS deduction under section 194J of the Act.
3. Application of the decision of the Hon'ble Bombay High Court in Kotak Securities case to the assessment year 2010-11.
4. Consideration of reasonable cause for not deducting tax at source and the relevance of the existence of a dispute in making disallowance under section 40(1)(ia).

Detailed Analysis:
1. The appeal was filed against the order of the Commissioner of Income Tax (Appeals) confirming the disallowance of transaction charges under section 40(a)(ia) of the Act, based on the pronouncement in CIT v. Kotak Securities Ltd.
2. The Assessing Officer observed that transaction charges paid to stock exchanges constitute 'fees for technical services' and are covered under section 194J for TDS deduction, relying on the decision of the Hon'ble Bombay High Court in Kotak Securities case for the assessment year 2005-06.
3. The appellant contended that there was a bona-fide belief that TDS was not required as per the Tribunal's decision in Kotak Securities case, which was overturned by the High Court in 2011, post the assessment year in question.
4. The Tribunal noted the conflicting decisions between the Tribunal and the High Court regarding the nature of transaction charges, emphasizing the reasonable cause for not deducting TDS based on the disputed nature of the issue.
5. The Tribunal held that the High Court's decision applies retrospectively, and if the tax on transaction charges has been paid by the payee, then no TDS deduction is required under section 194J. The burden of proof lies with the assessee to demonstrate the payment of tax by the payee.

This detailed analysis covers the issues related to the disallowance of transaction charges, the interpretation of 'fees for technical services,' the application of legal judgments, and the consideration of reasonable cause for not deducting TDS, leading to the allowance of the appeal for statistical purposes.