Disallowance made by the AO under sec 40(a)(ia) on the fees paid to professional service

IN THE INCOME TAX APPELLATE TRIBUNAL,

KOLKATA ‘A’ BENCH, KOLKATA

Before Shri Pramod Kumar (Accountant Member),

and Shri N Vijaykumaran (Judicial Member)

I.T.A. No.: 1288/ Kol. / 2011

Assessment year: 2006-07

Sharma Kajaria & Co ………….Appellant

12, Old Post Office Street

Kolkata 700 001

[PAN: AAKFS5647K)

                                                                      (Appellant)

Vs.

Deputy Commissioner of Income Tax

Circle 54, Kolkata

 (Respondent)

Appearances by:

S Sadhu, for the appellant

Anjan Prasad Roy, for the respondent

Date of concluding the hearing: February 09, 2012

Date of pronouncing the order: February 17, 2012

ORDER

Per Pramod Kumar:

1. By way of this appeal, the assessee appellant has called into question correctness of CIT(A)’s order dated 28th July 2011, in the matter of assessment under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for the assessment year 2006-07, on the following grounds:

1. For that the learned Commissioner of Income Tax (Appeals) was not justified in confirming the addition of Rs 28,05,085 to total income made by the learned Assessing Officer in application of Section 40(a)(ia) and Section 194 J of the said Act.

2. For that the learned Commissioner of Income Tax (Appeals) was wrong in holding that the appellant has raised composite bills for the entire works on its clients on presumptions and without taking into consideration the evidence adduced to him that there were separate bills issued by the appellant in respect of fees paid to the counsels and its own fees and tax was deducted at source from the payments made to the appellant in respect of such bills.

3. For that the learned Commissioner of Income Tax (Appeals) failed or neglected to consider the fact that the appellant has no other alternative but to claim credit for tax deducted at source by its clients on the basis of the certificates issued by the deductors in favour of the appellant in accordance with the provisions of Section 203 r.w.s. 199 of the said Act. 

4. For that the learned Commissioner of Income Tax (Appeals) should not have wrongly construed the principle laid down by Hon’ble Supreme Court in the cited case that any demand visualized under section 201(1) of the said Act should not be enforced after the tax deductor has satisfied the Officer in Charge TDS that taxes have been duly paid by the deductee assessee.

2. These rather elaborate grounds of appeal attempt to highlight the factual matrix in which the assessee’s grievance is set out and the arguments in support of the assessee’s grievance. However, short grievance of the assessee, as is clearly discernible from the above grounds of appeal is that the CIT(A) erred in upholding the disallowance of Rs 28,05,085 made by the Assessing Officer under section 40(a)(ia) r.w.s. 194 J of the Act. We proceed to deal with this issue, and, before we do so, set out the narrow compass of material facts in which it is set out.

3. The assessee before us is a firm of solicitors and advocates. Its return of income, disclosing total income of Rs 12,67,520, was initially processed under section 143(1)(a) but subsequently, the reassessment proceedings were initiated on 29th June 2009. In the course of the resultant reassessment proceedings, the Assessing Officer noted that the assessee has made payments, aggregating to Rs. 30,30,140, to various lawyers for their professional services, but has not deducted tax at source under section 194 J from the same. The Assessing Officer was of the view that the assessee was under statutory obligation to deduct tax at source under section 194 J, and since the assessee has failed to perform this obligation, such payments are to be disallowed under section 40(a)(ia). After excluding some payments, which did not exceed the threshold limit for invoking tax deduction at source provisions, the Assessing Officer disallowed the balance amount of Rs 28,05,085 under section 40(a)(ia). Aggrieved, assessee carried the matter in appeal before the CIT(A). As evident from the submissions noted by the CIT(A) at page 5 of the impugned order, the assessee inter alia submitted that

(a) “the expenditure which is not claimed by the appellant in the computation of total income as appeared in the return and the profit and loss account should not be disallowed in application of section 40(a)(ia) of the said Act” and

(b) “in view of the fact that the payment of Rs 28,05,085 was not charged to profit and loss account in order to ascertain income chargeable under the head ‘profits and gains of business and profession’ as contemplated by Section 28 of the Act, the learned Assessing Officer erred in law in invoking Section 40(a)(ia) of the Act”.

None of these submissions, however, impressed the CIT(A). He rejected these arguments, and, while doing so, observed as follows:

“5……….……The contention of the AR that the rigour of section 40(a)(ia) is not applicable in this case since the appellant did not book any expenditure against fees paid or payable to the counsels for deduction of net profit is far-fetched, as he also did not account for the amount received towards counsel’s fees from various clients in the profit and loss account, and, therefore, accounts got squared off. In this context, I am of the opinion that the appellant has not purposefully not reflected the correct state of affairs in the books of accounts. As per accounting norms, the entire amount corresponding to the TDS certificates was to be shown as receipts and fees payable to the counsels should have been shown as expenditure. However, the appellant chose to reflect the net receipts in its profit and loss account, but claimed entire credit of TDS made by the its clients on the gross receipts, towards adjustment against its tax liability…………………

5.1 The contention of the AR that the fees paid or payable to the counsels were of the nature of reimbursements by clients is also not tenable. Had it been so, the clients would have deducted tax at source separately for the appellant and the lawyers/ counsels. It appears from the copy of TDS certificates that the appellant had raised the composite bills for entire work on its clients and was accordingly paid after deduction of tax. It is already discussed that the appellant alone has claimed credit of the said TDS. Consequently, neither the client nor the appellant had deducted tax at source from the fees paid or payable to the lawyers and counsels.

4. The CIT(A) thus concluded that “the appellant has violated the provisions of Section 194 J of the Act by not deducting tax at source on payments of Rs 28,05,085 made to the lawyers and solicitors” and that “the AO has rightly disallowed the same under section 40(a)(ia)”.action of the Assessing Officer was thus upheld. The assessee is not satisfied and is in further appeal before us.

5. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position.

6. Section 40(a)(ia), under which the impugned disallowance has been made, provides as follows:

Amounts not deductible

40. Notwithstanding anything to the contrary in sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head “Profits and gains of business or profession”-

(a) ……………….

(ia) any interest, commission or brokerage, [rent, royalty,] fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139

Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid after the due date specified in sub-section  of section 139, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.]

Explanation.—For the purposes of this sub-clause,—

(i) “commission or brokerage” shall have the same meaning as in clause (i) of the Explanation to section 194H;

(ii) “fees for technical services” shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9;

(iii) “professional services” shall have the same meaning as in clause (a) of the Explanation to section 194J;

(iv) “work” shall have the same meaning as in Explanation III to section 194C;

(v) “rent” shall have the same meaning as in clause (i) to the Explanation to section 194-I;

(vi) “royalty” shall have the same meaning as in Explanation 2 to clause (vi) of sub-section (1) of section 9;

the deductions which are otherwise permissible under section 30 to 38 of the Act. In other words, as a result of this section, a disallowance can be made only in respect of an amount which is sought to be deducted under these sections. As a corollary to this position, unless a deduction is claimed in respect of the said amount, under sections 30 to 38, the disallowance under section 40(a)(ia) cannot come into play at all.

8. We have noted that it is assessee’s contention that the amounts paid to the lawyers were reimbursed by assessee’s clients, and, therefore, the amounts paid to the lawyers were never claimed as a deduction in the first place. It was then contended that when deduction is not claimed in respect of these amounts, there cannot be any occasion to invoke section 40(a)(ia). Learned CIT(A) has not disputed the legal contention embedded in this line of arguments, and rightly so, because the question of disallowance under 40(a)(ia) can only arise when something is claimed as a deduction in computation of business income, and reimbursements simplictor, being profit neutral, are not routed through the profit and loss account to be claimed as deduction. Learned CIT(A) has, however, brushed aside the factual aspects embedded in this line of arguments and observed that

“ Had it been so (i.e. a reimbursement pure and simple), the clients would have deducted tax at source separately for the appellant and the lawyers/ counsels” and that “It appears from the copy of TDS certificates that the appellant had raised the composite bills for entire work on its clients and was accordingly paid after deduction of tax”.

Whether the assessee has claimed the fees paid to outside lawyers as a reimbursement from its clients or not, is simply a matter of fact, which will be evident from the bills raised on the clients, and there is no need for making any inferences in respect of the same. The manner in which taxes have been deducted by the end user of the legal services cannot be determinative of whether the assessee has claimed it as reimbursement or not. There is no need to infer as to whether the bills were composite bills or whether these payouts to outside lawyers were claimed as reimbursements. These facts can be verified by examining the copies of bills raised by the assessee on its clients. In case the assessee has separately itemized, in the bills raised on its clients, the payments made to the outside counsel and claimed reimbursements in respect of the same, these expenses cannot of such a nature as to seek deduction in respect of the same. When the expenses are being reimbursed by the clients, these expenses cease to be expenses of the assessee, and, therefore, there is no question of deduction in respect of the same. However, when assessee has raised composite bills for professional services, on gross basis and without giving details of payouts to outside lawyers on behalf of his clients, the payments to outside lawyers will be in the nature of deduction to be claimed by the assessee. Without there being any categorical finding to the effect that the payments to outside lawyers were claimed as deductions in computation of profits, the disallowance under section 40(a)(ia) in respect of such payments ceases to be devoid of any legally sustainable basis. When this proposition was put to the learned Departmental Representative, he fairly did not dispute the same but prayed that the matter should be restored to the file of the Assessing Officer for necessary verifications on this factual aspect. Learned counsel for the assessee does not oppose this prayer.

9. In view of these discussions, and bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the Assessing Officer for adjudication de novo in the light of our above observations and in accordance with law. While doing so, the Assessing Officer shall give a due and fair opportunity of hearing to the assessee, and shall decide the matter by way of a speaking order in accordance with the law.

10. Before parting with the matter, we may mention that there has been a lot of emphasis in the orders of the authorities below, as indeed in learned Departmental Representative’s arguments before us, about the scope of assessee’s obligations to deduct tax at source under section 194 J. However, having regard to the fact that we are in seisin of the limited question of disallowance under section 40(a)(ia), we see no need to deal with that aspect of the matter at this stage. As far as this appeal is concerned, all these things issues regarding tax deduction at source obligations will be relevant only if one is to come to the conclusion that section 40(a)(ia) can be invoked in respect of the payments in question. That is a question which is still open and which will have to be adjudicated upon by the Assessing Officer in the light of our directions as set out in the earlier paragraph. We leave it at that for the time being.  

11. In the result, the appeal is allowed for statistical purposes in the terms indicated above. Pronounced in the open court today on 17th day of February, 2012.

                                                        Sd/-                           Sd/-

                                            N Vijaykumaran       Pramod Kumar

                                           (Judicial Member)    (Accountant Member)

Kolkata, the17th day of February, 2012

Copies to:

(1) The appellant

(2) The respondent

(3) CIT

(4) CIT(A)

(5) The Departmental Representative

(6) Guard File

                                                                                                                  By order etc

                                                                                                                  Assistant Registrar

Income Tax Appellate Tribunal

                                                                                                                Kolkata benches, Kolkata