Disallowance u/s 40(a)(ia) can be invoked only in event of non–deduction of tax and not for lesser deduction of tax

Conditions laid down under Section 40(a) (ia ) requires addition  to the income if

–       tax is deductible at source and

–       such tax has not been deducted.

If both the conditions are satisfied then such payment can be disallowed under Section 40(a)(ia ).

Provisions of Section 40(a)(ia) have two limbs,

1. Assessee has to deduct tax and
2. Where after deducting tax, the assessee has to pay into Government Account.

There is nothing in the said section to treat the assessee as defaulter where there is a shortfall in deduction.

The Section 40(a) (ia) refers only to the duty to deduct tax and pay it to the Government Treasury.

 If there is any shortfall due to any difference of opinion as to the taxability of any item or the nature of payments falling under any of the TDS provisions, assessee can be declared to be an assessee-in-default under Section 201 and no disallowance can be made by invoking the provisions of Section 40(a )(ia)

DEPUTY COMMISSIONER OF INCOME TAX vs. CHANDABHOY AND JASSOBHOY

ITAT, MUMBAI BENCH

R.V. Easwar, P & B. Ramakotaiah, AM

ITA No. 20/Mum/2010

8th July, 2011

(2012) 31 CCH 0078 MumTrib

(2012) 49 SOT 0448

Legislation Referred to

Section 40(a)(ia)

Case pertains to

Asst. Year 2006-07

Decision in favour of:

Assessee

Business Expenditure–Disallowance under s. 40(a)(ia)–Payment made to consultants engaged by Chartered Accountants’ firm–AO held payment made to consultants engaged by Chartered Accountants’ firm are in nature of fees for professional services and accordingly provisions of s. 194J would attract and since assessee has not deducted the tax, disallowed amounts claimed of Rs.26,75,535/– u/s. 40(a)(ia)–CIT(A) deleted addition made by AO–Held, assessee has employed about 18 consultants with whom it entered into agreements for a period of two years–They were paid fixed amounts without any share in the profit–These consultants are prohibited from taking any private assignments and worked full time with the assessee firm–There was deduction of tax u/s 192 and in their individual assessments these payments were accepted as salary payments–Entire amount paid for 18 consultants is only an amount of Rs.26,75,535/–, which indicates that they are in employment and not professional consultants–Assessee has deducted tax u/s 192–Hence, s. 40(a)(ia) also do not apply as the said provision can be invoked only in event of non–deduction of tax but not for lesser deduction of tax

Held:

Assessee has employed about 18 consultants with whom it entered into agreements for a period of two years renewable further at the option of either parties and they were paid fixed amounts without any share in the profit. These consultants are prohibited from taking any private assignments and worked full time with the assessee firm. There is no dispute with reference to the deduction of tax under section 192 and also the fact that in their individual assessments these payments were accepted as salary payments. It is also not disputed that the entire amount paid for 18 consultants is only an amount of Rs.26,75,535/–, which indicates that they are in employment and not professional consultants. It is also not the case that assessee has not deducted any amount. Assessee has indeed deducted tax u/s 192, Provisions of section 40(a)(ia) also do not apply as the said provision can be invoked only in the event of non deduction of tax but not for lesser deduction of tax.

Conclusion:

Section 40(a)(ia) can be invoked only in the event of non–deduction of tax but not for lesser deduction of tax.

In favour of:

Assessee

Counsel appeared:

Jitendra Yadav, for the Appellant : Percy J. Pardiwalla, for the Respondent

ORDER

1. RAMAKOTAIAH, AM. :

ORDER

1. This appeal by the Revenue is against the order of the CIT(A)–III, Mumbai dated 20.10.2009.
2. Assessee is a partnership firm of Chartered Accountants and in the scrutiny assessment, the A.O. considered that payment made to certain consultants engaged by the Chartered Accountants’ firm are in the nature of fees for professional services and accordingly provisions of section 194J would attract. It was the contention of the assessee that the consultants functioned as employees of the firm and were engaged on full time basis. They could not undertake any other job or assignments privately and they were provided with annual leave and other benefits except bonus, gratuity and P.F. It was further submitted that they were employees of the firm and tax was deducted under section 192 of the I.T Act and these persons filed their returns based on Form 16 issued by the assessee firm and so their salary can not be under the provisions of section 194J. The A.O. analyzing the agreements entered by the assessee firm with the said consultants came to a conclusion that there is no employee–employer relationship and assessee should have deducted tax under section 194J and since assessee has not deducted the tax, the amounts claimed of Rs.26,75,535/– was to be disallowed under section 40(a)(ia). The matter was carried to the CIT(A) who, after examining the issue and submissions of the assessee, deleted the addition by stating as under:–

“3.7.1. There is merit in this submission of appellant. The deduction of tax made by appellant though made u/s. 192 has not been disputed by AO, neither has the TDS deposit in Government account been challenged, nor has the genuineness of payment of monies to IHC been doubted by AO. As such, the payments become allowable expense under the Act. These have been disallowed due to an interpretation of the section under which the payment made is to be considered i.e. whether section 192 or section 194J. Without prejudice to the decision in para 3.6 and 3.6.1 supra, in the background of appellant’s submission and precedence of many years in his own case, it is felt that even if payments were considered to be u/s. 194J by A.O., the tax already deducted by appellant could have been considered against that due u/s 194J and shortage of TDS, if any, could have been arrived at. The consequent shortage of TDS with interest, if any, could have been considered as liability under the I.T. Act and as due from the appellant. Disallowance of the entire expenditure of Rs.26,75,535/– whose genuineness has not been doubted by the AO is not justifiable.”

3. We have heard the rival arguments and examined the record. Assessee has employed about 18 consultants with whom it entered into agreements for a period of two years renewable further at the option of either parties and they were paid fixed amounts without any share in the profit. These consultants are prohibited from taking any private assignments and worked full time with the assessee firm. There is no dispute with reference to the deduction of tax under section 192 and also the fact that in their individual assessments these payments were accepted as salary payments. It is also not disputed that the entire amount paid for 18 consultants is only an amount of Rs.26,75,535/–, which indicates that they are in employment and not professional consultants. It is also not the case that assessee has not deducted any amount. Assessee has indeed deducted tax under section 192 and so we are of the opinion that provisions of section 40(a)(ia) also do not apply as the said provision can be invoked only in the event of non deduction of tax but not for lesser deduction of tax. In view of this, we are of the opinion that there is no merit in Revenue’s contention that the amount paid to the employees should be disallowed as provisions of section 194J would attract. On the facts of the case, there is no merit in Revenue’s appeal. Accordingly the order of the CIT(A) is confirmed.
4. In the result, appeal of the Revenue is dismissed.

Order pronounced in the open court on 8th July 2011.