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2014 (9) TMI 257 - AT - Income TaxAdmission of additional evidence - Held that - The suspicion so addressed for discarding the evidences relied upon can be addressed only by the evidences as such they go to the root of the matter and deserves to be admitted - These evidences directly throw light on the suspicion of the department as they address why Sh. Rakesh Talwar did not respond to the telephone and e-mails the fresh evidence sought to be admitted towards this fact as such are relevant and cogent material as the transaction has been held to be not genuine solely on account of the fact that the said party did not respond - the evidence and material available on record before the CIT(A) has not been discredited by the AO for all the three parties and whereas for the two parties the CIT(A) has found the evidence sufficient and cogent namely for Chunyu and Alem Desta and for Rakesh Talwar of R.T. Associates he has decided the issue against the assessee as the concerned party did not confirm the rendering of services. The assessee having no control over the parties cannot be held accountable for the delay in bringing on record the material at the end of the proceedings which had arisen due to paucity of time during the assessment proceedings - for reason beyond the control of the assessee the evidences could not be filed in the course of the assessment proceedings due to paucity of time granted by the AO specially as the assessee had no interaction with the said parties and was not in a position to control the parties to direct immediate compliance by confirming Decided against revenue. commission expenses disallowed - Held that - Sh. Rakesh Talwar was pre-occupied with his medical treatment due to which confirmation reply could not be obtained - Associates support the plea of the assessee accordingly the finding of the CIT(A) is set asdie wherein he has not cared to address the evidences relied upon qua the rendering of services by the party and restore the issue back to the AO to consider the evidence and pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard Decided in favour of assessee. TDS not deducted on several payments - Whether any expense is claimed under the head freight and cartage to these persons for the services rendered in India or the services were rendered by these companies outside India on which provisions of section 194C are not applicable Held that - CIT(A) rightly was of the view that as per Circular No. 786 dated 7.2.2000 no tax was to be deducted where the non-resident agent operates outside the country and no part of his income arises in India - the payment is usually remitted directly abroad it cannot be held to have been received by or on behalf of the agent in India - Such payments were held to be not taxable in India - company has submitted copies of all the invoices of the freight paid which is in respect of ocean freight paid to M/s. APM Global Logistics Egypt Ltd. for Alexandria to Jakarta and none of the payment is made for any freight which can be said to have incurred for freight paid in India. Appellant has also placed on record the evidences that it has wrongly debited Inspection charges by Freight amount - neither the freight nor the inspection charges are paid by the appellant company for any services rendered by these company in India and nor the payments are made to these parties in India and therefore by no imagination either the provisions of section 194 C or section 195 are applicable on any of these payments made to these parties by the appellant company - the addition made on these findings when no amount of freight is paid in India the addition made on account of freight and inspection charges is deleted - there was no cogent evidence nor the evidence taken into consideration by the CIT(A) and the judgements relied upon were assailed - assessee in the absence of any serious arguments on behalf of the Revenue placed reliance upon the order the order of the CIT(A) is upheld Decided against revenue.
Issues Involved:
1. Deletion of addition on account of disallowance of commission expenses. 2. Deletion of addition made under section 40(a)(ia) for non-deduction of TDS on freight and cartage payments. 3. Charging of interest under section 234B of the Income Tax Act, 1961. Detailed Analysis: 1. Deletion of Addition on Account of Disallowance of Commission Expenses: The Revenue challenged the CIT(A)'s deletion of Rs. 11,12,775/- on account of disallowance of commission expenses, arguing that the assessee failed to provide documentary evidence proving the services rendered. The assessee, on the other hand, contended that the CIT(A) erred in not deleting the entire disallowance of Rs. 1,04,86,640/- made by the AO for commission expenses paid to R.T. Associates and Rakesh Talwar, despite providing substantial evidence. Tribunal's Findings: - The assessee provided agreements, invoices, and bank confirmations to substantiate the commission payments. - The CIT(A) admitted additional evidence, including email confirmations and bank statements, which were not considered by the AO. - The CIT(A) allowed the commission paid to Alem Desta and Zhou Chunyu Consultants but disallowed the commission to R.T. Associates due to lack of direct confirmation from Rakesh Talwar, whose identity was in question. - The Tribunal admitted additional evidence, including the death certificate and medical records of Rakesh Talwar, explaining his non-responsiveness due to illness. - The Tribunal found the evidence sufficient to demonstrate the genuineness of the commission payments and remanded the issue back to the AO for a fresh decision. 2. Deletion of Addition Made Under Section 40(a)(ia) for Non-Deduction of TDS on Freight and Cartage Payments: The AO disallowed Rs. 50,95,012/- under section 40(a)(ia) for non-deduction of TDS on payments made for freight and cartage, arguing that the services were rendered in India. The assessee claimed that the payments were made to non-resident parties for services rendered outside India, exempting them from TDS. Tribunal's Findings: - The CIT(A) found that the payments were made for services rendered outside India, supported by invoices and bank confirmations. - The CIT(A) held that neither section 194C nor section 195 applied as the payments were not made for services rendered in India. - The Tribunal upheld the CIT(A)'s decision, noting the absence of any evidence to the contrary from the Revenue. 3. Charging of Interest Under Section 234B of the Income Tax Act, 1961: The assessee contended that the CIT(A) erred in not reversing the AO's action of charging interest under section 234B. Tribunal's Findings: - The Tribunal did not specifically address this issue in detail, but the overall decision implies that the interest under section 234B would be reconsidered based on the final determination of the commission expenses and TDS issues. Conclusion: The Tribunal dismissed the Revenue's appeal, upheld the CIT(A)'s decision on the deletion of disallowance for commission expenses (partially) and non-deduction of TDS on freight and cartage payments. The assessee's appeal was allowed for statistical purposes, with the issue of commission expenses remanded back to the AO for a fresh decision considering the newly admitted evidence.
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