2011 (8) TMI 296 - AT - Income Tax

Agent of non-residents - Provision of u/s 163 - Non deduction of TDS - As the appellant is under an obligation to deliver the cargo within time it stuffs this cargo in a container along with cargoes for other destinations en route to Sydney and dispatches the container to Singapore. - held that there was a business connection between the appellant and the non-residents and that the appellant was covered by the provisions of section 163(1)(b) of the Act - the appellant satisfied the criteria laid down in section 163(1)(c) of the Act, namely the appellant was a person from or through whom the non-resident was in receipt of any income whether directly or indirectly - Decided against the assessee.

Summary

Issues:
1. Whether the CIT(A) was justified in treating the appellant as an agent of various non-residents under section 163 of the Income-tax Act 1961.

Analysis:
The case involved 17 appeals by a company engaged in Cargo consolidation, challenging the orders of CIT(A) regarding the assessment year 2004-05. The central issue was whether the appellant could be considered an agent of 17 non-residents as determined by the CIT(A) under section 163 of the Income-tax Act.

The appellant, a Multimodal Transport Operator (MTO), received cargo from shippers at Mumbai Port for shipments worldwide. The cargo was consolidated in containers for multiple destinations to ensure timely delivery. The Assessing Officer noted payments made to non-residents without tax deduction, leading to a show-cause notice regarding the appellant's agency relationship with these non-residents.

The appellant argued that the non-residents were business associates providing services outside Indian territorial waters, and no Principal-Agent relationship existed. They contended that the non-residents did not have a Permanent Establishment in India, and income from the appellant was not taxable under the Act. However, the Assessing Officer deemed the appellant as an agent of a non-resident based on the business connection and remittances made without tax deduction.

The CIT(A) upheld the Assessing Officer's decision, leading to the appellant's appeal before the Tribunal. During the hearing, the appellant's counsel acknowledged a similar issue previously decided against the appellant by the Tribunal. The Tribunal upheld the CIT(A)'s order, stating a business connection existed between the appellant and non-residents, satisfying the criteria under section 163(1)(b) and (c) of the Act.

Ultimately, the Tribunal dismissed all appeals by the appellant, affirming the orders of the CIT(A) based on the business connection and income receipt criteria under section 163(1) of the Income-tax Act 1961.

In conclusion, the Tribunal upheld the decision to treat the appellant as an agent of non-residents under section 163 of the Income-tax Act, dismissing all appeals by the appellant challenging the CIT(A)'s orders.