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2014 (1) TMI 440 - AT - Income TaxDeletion of disallowance u/s 40(a)(i) of the Act Liability to deduct tax at source on the commission payments made to non-residents u/s 195 of the Act Held that - The non-residents are only procuring orders for the assessee and following up payments, no other services are rendered other than procuring the orders and collecting the amounts - The non-residents are not providing any technical services to the assessee - The commission payment made to non-residents also does not fall under the category of royalty or fee of technical services, therefore the Explanation to sub-section (2) of section 9 has no application to the facts of the assessee s case Following GE India Technology Cen. (P.) Ltd. v. CIT 2010 (9) TMI 7 - SUPREME COURT OF INDIA - the assessee is not liable to deduct TDS when non-residents provided service outside India - when the services are provided outside India, the commission payments made to non-residents cannot be treated as income deemed to accrue or arise in India, therefore, the provisions of section 195 has no application - In order to invoke the provisions of section 195 of the Act, the income should be chargeable to tax in India - the commission payments to non-residents are not chargeable to tax in India, thus, the provisions of section 195 are not applicable order of the CIT(A) upheld Decided against Revenue.
Issues involved:
- Disallowance under section 40(a)(i) for non-deduction of TDS on commission payments made to non-residents under section 195 of the Act. Detailed Analysis: 1. Issue of Disallowance under Section 40(a)(i): The Revenue appealed against the order of the Commissioner of Income Tax (Appeals) deleting the disallowance under section 40(a)(i) for non-deduction of TDS on commission payments made to non-residents. The Assessing Officer disallowed the payments under section 40(a)(i) as the assessee did not deduct TDS on commission payments to non-residents, deeming them as income accruing in India under section 9(1)(vii). The Assessing Officer relied on the withdrawal of a circular by CBDT and the need for TDS under section 192. However, the Commissioner of Income Tax (Appeals) examined the agency agreements and concluded that no TDS was required under section 195 for the payments made. The Commissioner observed that the services by non-residents did not fall under section 9(1)(vii) and the payments were not taxable in India. 2. Interpretation of Relevant Legal Provisions: The Assessing Officer's view was based on the Explanation to sub-section (2) of Section 9, deeming income to accrue in India, and the withdrawal of circular No.23 of 1969 by CBDT. However, the Commissioner of Income Tax (Appeals) focused on the nature of services provided by non-residents and the absence of technical services or permanent establishment in India. The Commissioner emphasized that the commission payments were for securing orders outside India and not taxable in India. The Commissioner's decision aligned with the Supreme Court ruling in GE India Technology Cen. (P.) Ltd. v. CIT, emphasizing that TDS obligations arise only if the payment is chargeable to tax in the hands of the recipient. 3. Application of Legal Precedents: The Commissioner's decision was supported by legal precedents such as the ITAT Madras ruling in Indopel Garments (P.) Ltd and the Supreme Court judgment in GE India Technology Cen. (P.) Ltd. v. CIT. These cases highlighted that TDS liability does not apply when services are rendered outside India by non-residents. The ITAT 'D' Bench decisions further emphasized that TDS liability is not imposed when services are provided outside India by non-residents, aligning with the principles established by the Supreme Court. 4. Final Judgment: The Appellate Tribunal upheld the Commissioner's decision, emphasizing that the non-residents were only procuring orders and following up payments, with no technical services provided. The commission payments did not fall under royalty or technical fee categories, making the Explanation to section 9(2) inapplicable. The Tribunal concurred with the Supreme Court's interpretation that TDS is not required for payments not chargeable to tax in India. Therefore, the disallowance under section 40(a)(i) was deemed unjustified, and the appeal of the Revenue was dismissed. This detailed analysis showcases the legal interpretation, application of precedents, and the final judgment in the case involving the disallowance of commission payments to non-residents under relevant tax provisions.
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