M/S GCS COMPUTER TECHNOLOGY PRIVATE LIMITED,CHANDIGARH vs. JCIT, PATIALA
What did the Tribunal hold?
The Tribunal held that the association was not a contractor and therefore, the provisions of Section 194C and 194J were not attracted. The case was remanded to the Assessing Officer to verify if the association had deducted TDS while making payments to the actual advertisers.
What were the facts?
The assessee made a payment of Rs. 13,35,567/- to an association for advertisement expenses. The assessee claimed this was a reimbursement of expenses incurred by the association on behalf of various regional centers. The Assessing Officer and CIT(A) disallowed the expenditure under Section 40(a)(ia) for non-deduction of TDS.
What were the issues?
Whether the payment made to the association for advertisement expenses was subject to TDS deduction, and if not, whether the disallowance under Section 40(a)(ia) was justified.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
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- Associated Cement Co. Ltd. v. CIT68 citing67 Taxmann 346 · 1993 · SC · Read judgment
Income Tax Appellate Tribunal, DIVISION BENCH, ‘A’ CHANDIGARH
Before: SHRI SANJAY GARG & Ms. ANNAPURNA GUPTA
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against
the order dated 14.03.2016 of the Commissioner of Income Tax
[hereinafter referred to as CIT(A)] Meerut (Camp at Patiala).
The sole issue raised is regarding disallowance of expenditure
of Rs. 13,35,567/- made under the provisions of section 40(a) (ia) of
the Income-tax Act, 1961 (in short 'the Act') on account of non-
deduction of TDS.
At the outset, the Ld. Counsel for the assessee has invited our
attention to the impugned order of the Assessing officer, wherein, the
ITA No.621/Chd/2016- M/s GCS Computer Technology P Ltd, Chandigarh 2
assessee had pleaded before the Assessing officer that in fact the
aforesaid payment was made by the assessee on account of
reimbursement of expenditure incurred by All India PTU DEP
Associates. It was submitted that the All India PTU DEP Associates
(hereby referred as ‘Association’) was an Organization formed by all
the regional centers of Punjab Technical University, Jalandhar. That
these centers to promote their business and for generating awareness
about distance learning course among the students, had to advertise
about the services offered by them. That the said Association worked
on behalf of all the centers collectively and did the advertisement
and business promotion activities and incurred expenditure for the
said purpose. However, the actual expenditure incurred was
recovered on proportionate basis from the respective institutes. The
Assessing officer, however, did not agree with the above contention
of the assessee and held that the Association was a separate entity.
That the assessee had made the payment to the Association for
advertisement purposes and, hence, the assessee was liable to deduct
TDS as per the provisions of section 194C and 194J of the act for
non-compliance and, thus, disallowance of expenditure was attracted
under the provisions of section 40(a)(ia) of the Act. He accordingly
disallowed the aforesaid payment expenditure made by the assessee
to the Association.
The Ld. CIT(A) also confirmed the disallowance so made by
the Assessing officer.
ITA No.621/Chd/2016- M/s GCS Computer Technology P Ltd, Chandigarh 3
Before us, Ld. Counsel for the assessee has reiterated the
submissions made before the lower authorities. The Ld. DR, on the
other hand, has relied on the certain clarifications issued by the
CBDT wherein it has been mentioned that the provisions of section
194C and 194J of the Act refer to all the sums paid / incurred
including re-imbursement etc. The Ld. DR has also placed reliance
on the decision of the Hon'ble Supreme Court in the case of
Associated Cement Co Ltd Vs. (1993) 67 taxman 346 (SC) .
We have considered the rival submissions. The assessee in this
case has pleaded that the payment in question was made to the
Association towards its share of expenses incurred on advertisements
on behalf on behalf of the institutes / regional centers. There is no
denial or rebuttal to this fact by the Revenue. The only contention of
the Revenue is that the assessee was a separate person and the
assessee had made the payments for advertisements and, hence, the
assessee was liable to deduct tax at source on the aforesaid payments.
We are not in agreement with the above contention of the Revenue.
As explained by the Ld. Counsel for the assessee, the institutes /
regional centers instead of individually incurring expenditure on
advertisements had opted to form an Association who would give the
advertisements on behalf of the institutions. The Association, itself,
was not engaged in the business or profession of advertisements
rather it imparted work / contract to the advertisers on behalf of
regional centers including of the association. In our view, the
Association did not fall within the definition of contractor so as to
attract the provisions of section 194C or 194J of the Act.
ITA No.621/Chd/2016- M/s GCS Computer Technology P Ltd, Chandigarh 4
6 So far as the reliance of the Ld. DR on the judgement of
Hon'ble Supreme court (supra) is concerned, a perusal of the same
reveals that the question before the Hon'ble Supreme Court was as to
whether the TDS has to be deducted by the assessee on the entire
payment made to the contractor or on the income element only,
However, neither this is the question involved in this case nor the
findings arrived at by the Hon'ble Supreme Court are otherwise
applicable to the facts and circumstances of this case in hand. In the
case in hand, in our view, the Association is not a contractor rather it
is just a mediator between the assessee and the advertisers. The
Association has been created by the assessee and other regional
institutes just to facilitate the work of advertisement for all though
common platform. The payment was made by the association to the
advertisers on behalf of the assessee. It is plea of the assessee that
while making payment to the advertisers, the association had
deducted TDS thereupon. The Ld. Counsel in this respect has relied
upon a Certificate issue by the Association, wherein, it has been
certified that the association was giving advertisements on behalf of
the regional centers / institutes and that the share of cost of the
advertisement was recovered from respective regional centers. In
view of this, since the Association did not fall under the definition of
Contractor, hence, the provisions of section 194C and 194J, in our
view, would not attract in this case. However, there needs a
verification at the level of the Assessing officer whether the
Association had actually deducted the TDS while making payments to
the advertisers on behalf of the assessee and other regional centres,
ITA No.621/Chd/2016- M/s GCS Computer Technology P Ltd, Chandigarh 5
hence, we remand this case to the file of the Assessing officer for the limited purpose to verify whether the Association had deducted TDS on behalf of the assessee while making the further payments to the advertisers. If the above contention is found true, then, no disallowance should be made in this respect. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the Open Court
Sd/- Sd/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 18.04.2018 Rkk Copy to: • The Appellant • The Respondent • The CIT • The CIT(A) • The DR
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