Why Should Foreign Taxpayers Entitled To DTAA Benefit Be Subjected To Higher Rate Of TDS U/s 206AA?
In the light of the judgement of the ITAT Pune in Serum Institute, Chirag Wadhwa argues that the approach of the department that even foreign entities entitled to the benefit of the DTAA should be subjected to a higher rate of TDS u/s 206AA for failure to quote the PAN is impractical and hinders the process of an effective and efficient taxation regime. He urges the department to take a holistic approach of the matter and ensure that while the noble object of detecting tax evasion is achieved, taxpayers are not put to unnecessary harassment
Ballabh Das Agarwal vs. ITO (ITAT Kolkata)
S. 40(a)(ia) second proviso was inserted by FA 2012 to rectify the unintended consequence of disallowance in the hands of the payer even if the payee has paid tax. It is curative and retrospective in operation. Assessee's claim of having obtained declarations u/s 197A from the payees should not be disbelieved without evidence. Assessee is not expected to go into the correctness of the declarations filed by the payees
The second proviso to section 40(a)(ia) of the Act inserted by the Finance Act, 2012 is curative in nature and intended to supply an obvious omission, take care of an unintended consequence and make the section workable. Section 40(a)(ia) without the second proviso resulted in the unintended consequence of disallowance of legitimate business expenditure even in a case where the payee in receipt of the income had paid tax. It has for long been the legal position that if the payee has paid tax on his income, no recovery of any tax can be made from the person who had failed to deduct the income tax at source from such amount
Aspect Software Inc vs. ADIT (ITAT Delhi)
Consideration for supply of software (whether with or without equipment) is not taxable as "royalty" if there is no transfer of right in the copyright to the software
There was no transfer of any right in respect of copyright by the assessee and it was a case of mere transfer of a copyrighted article. The payment is for a copyrighted article and represents the purchase price of an article. Hence, the payment for the same is not in the nature of royalty under Article 12 of the Tax Treaty. The receipts would constitute business receipts in the hands of the Assessee and is to be assessed as business income subject to assessee having business connection/ PE in India
DCIT vs. Reliance Communications Infrastructure Ltd (ITAT Mumbai)
ITAT laments non-representation/ inept-representation of matters before it by the Revenue. Suggests guidelines to remedy the state of affairs
it is noticed that some of the DRs had never had exposure to the functions of the Tribunal except the formal court observation as part of their training programme, which sometimes result in not supporting the stand of the Revenue effectively and in turn may affect a genuine case of the Revenue for want of proper prosecution. We would take this opportunity to suggest that any official, on being assigned the duty of DR, should be made to sit in the court room for observation at least for 15 days so that their services can be used effectively at a later stage.
CIT vs. Usha Saboo (P&H High Court)
Where the agreement between the parties (for sale of shares) indicates that the lump-sum consideration was in respect of two or more promises (i.e. sale of shares & non-compete covenant), it is liable to be bifurcated and apportioned between each of the assets (Vodafone distinguished)
It is difficult to understand how the mere fact that the parties have not apportioned the consideration between the two assets which were being dealt with by this agreement can make any difference to the rights of the parties. The position might have been different if the market value of the shares could not be ascertained. Then it might be said that it is difficult to put a proper value upon the shares and to put a proper value for the consideration. But when the market value is available and when it is known for what price these shares could be purchased or sold, there is no difficulty whatsoever in the apportionment
CIT vs. M. M. Aqua Technologies Ltd (Delhi High Court)
S. 43B Expl 3C: Conversion of outstanding interest into a loan does not amount to an "actual payment" of the interest and so deduction for the interest cannot be claimed
In view of the Explanation 3C appended to Section 43B with retrospective effect from 01.04.1989, conversion of interest amount into loan would not be deemed to be regarded as actually paid amount within the meaning of Section 43B of the Act
Regards,
Editor,
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