Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2015 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (5) TMI 1169 - AT - Income TaxTDS u/s 195 - payments to non-residents under the heads training fee,service fee and royalty payment - PE in India - scope of amendment of act - Held that:- TDS u/s 195 - payments to non-residents under the heads training fee,service fee and royalty payment - PE in India - Held that:-The payments in question are covered by the provisions of section 9, that the non residents had no PE in India, that the assessee was not liable to deduct tax at source for these payments. We are of the opinion that his order does not suffer from any legal infirmity. Here, we would also like to mention that the issue of taxability of these three payments had arisen because of the retrospective amendment to section. The assessee had managed its affairs as per the provisions of existing law and at the time of filing of return, it had not to deduct the tax. The settled principle of jurisprudence stipulates that impossible acts cannot be expected to be performed by an assessee. If at the time of filing of its return the assessee is not required to deducted tax as per the existing provisions and later on because of the retrospective amendment or judgment of a court liability to deduct Tax at Source arises, the assessee cannot be held responsible for not deducting of tax at the time of filing of return. - Decided against revenue TDS u/s 194J - transaction charges paid by the assessee to the stock exchange - fee for technical services - Held that:- As decided in assessee's own case for AY 2008-09 assessee proceeded on the footing that section 194J was not applicable to the payment of transaction charges and accordingly during the period from 1995 to 2005 neither the assessee has deducted tax at source nor the Revenue has raised any objection. The Hon'ble High Court further observed that in these circumstances if both the parties for nearly a decade proceeded on the footing that section 194J is not attracted, then in the assessment year in question, no fault can be found with the assessee in not deducting tax at source under section 194J of the Act and consequently, no action could be taken under section 40(a)(ia) of the Act. Return of income for the year under consideration was filed on 14/08/2009 and this decision of the Hon'ble Court was pronounced on 21/10/2011. Thus, the assessee had already filed the return of income and the time period for deducting tax at source was also lapsed. Considering these peculiar facts. in our considered opinion no disallowance on this account should be made for the year under consideration. - decided in favour of assessee.
|