2015 (1) TMI 1106 - AT - Income Tax

Non-deduction of TDS on payment of commission to Foreign Agent - CIT(A) deleted the addition - Held that - The income of the non-resident was not chargeable to tax in India since the same was neither received in India nor had it accrued or deemed to accrue in India. Accordingly, the appellant was not required to deduct Tax at Source u/s 195 in respect of commission paid to the Foreign Agents. Disallowance u/s 40 (a) (i) is, therefore, deleted. - Decided in favour of assessee. Addition towards valuation of export debtors as on the last day of accounting year on the basis of RBI Reference Rate - assessee has valued them on the basis of actual realization - Held that - Undisputedly assessee has been following this method of accounting in the past also and the same was accepted by the Revenue. Therefore, we find no justification to disturb the method of accounting consistently being followed by the assessee. Though the application of correct accounting policies and principles is important for determination of correct income, but concept of consistency and real income are vital principles in the Tax Law, which cannot be ignored. Had this addition been sustained, it will disturb the returned income of the appellant for subsequent Assessment Years also i.e. for A.Y. 2010-11, 2011-12 and so on. - Decided in fvaour of assessee. Ad hoc addition - Job Work Charges,Manufacturing Expenses,Checking & Inspection Charges and Export Development Expenses - CIT(A) deleted the addition - Held that - Assessing Officer has not pointed out any specific defect either in the maintenance of the books of account or any particular expense. He has made general observation that the expenses claimed by the assessee were not fully verifiable and thereafter he started making ad hoc disallowances, which are not permissible under the law. We, therefore, find no merit in this ground of the Revenue s appeal, as the ld. CIT(A) has properly deleted the addition made on ad hoc basis. - Decided in fvaour of assessee. Disallowance of interest paid by the assessee to his wife, Smt. Anu Gupta amounting to ₹ 1,44,427/- for not charging interest on certain loans and advances - CIT(A) deleted the additon - Held that - Revenue is in appeal before the Tribunal, but could not establish the nexus between the borrowed funds and the interest free advances. Therefore, disallowance of corresponding interest is not permissible. Accordingly, we find no merit in this ground of the Revenue s appeal and we confirm the order of the ld. CIT(A) on this issue. - Decided in fvaour of assessee.

Summary

Issues Involved:

1. Deletion of addition on account of non-deduction of TDS on payment of commission to Foreign Agent.
2. Non-consideration of Board's Circular No.7 of 2009.
3. Interpretation of prospective or retrospective nature of amendment in the statute.
4. Applicability of section 9(1)(vii) for services rendered by non-resident agents.
5. Deletion of addition towards valuation of export debtors.
6. Deletion of ad hoc additions out of various expenses.
7. Deletion of interest disallowance paid to the assessee's wife.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Non-Deduction of TDS on Payment of Commission to Foreign Agent:

The Revenue appealed against the deletion of Rs. 39,33,341/- added for non-deduction of TDS on commission payments to foreign agents. The Tribunal noted that this issue was covered by the judgment of the jurisdictional High Court and previous Tribunal orders, particularly in the case of ACIT vs. M/s Model Exims. The High Court had held that the payment of commission to foreign agents did not require TDS under Section 195 as the agents were not selling agents, designers, or technical advisers. The Tribunal confirmed the CIT(A)'s order, aligning with the High Court's judgment, and decided in favor of the assessee.

2. Non-Consideration of Board's Circular No.7 of 2009:

The Revenue argued that the CIT(A) erred by not considering Board's Circular No.7 of 2009. However, the Tribunal, referencing the High Court's judgment, found that the circular was not applicable as the agents were not providing technical or managerial services that would attract TDS under Section 195. The Tribunal upheld the CIT(A)'s decision.

3. Interpretation of Prospective or Retrospective Nature of Amendment in the Statute:

The Revenue contended that the CIT(A) did not appreciate the prospective or retrospective nature of the amendment as laid down by the Supreme Court in CIT Vs Gold Coin Health Food Pvt. Ltd. and CIT Vs Moser Baer India Ltd. The Tribunal, following the High Court's judgment, found no merit in this argument as the amendment's context did not apply to the facts of the case.

4. Applicability of Section 9(1)(vii) for Services Rendered by Non-Resident Agents:

The Revenue claimed that the services rendered by non-resident agents were technical or managerial, thus falling under Section 9(1)(vii). The Tribunal, referring to the High Court's judgment, found that the agents were only procuring orders and not providing technical or managerial services. The Tribunal confirmed the CIT(A)'s order, stating that the income was not chargeable to tax in India, and thus, TDS was not required.

5. Deletion of Addition Towards Valuation of Export Debtors:

The Assessing Officer added Rs. 1,48,489/- based on the RBI Reference Rate for valuing export debtors, while the assessee used actual realization rates. The CIT(A) deleted the addition, noting the assessee's consistent method for 20 years, accepted by the Department. The Tribunal upheld the CIT(A)'s decision, emphasizing the importance of consistency and real income principles in tax law.

6. Deletion of Ad Hoc Additions Out of Various Expenses:

The Assessing Officer made ad hoc additions totaling Rs. 3,50,000/- for various expenses, claiming they were not fully verifiable. The CIT(A) deleted these additions, stating that ad hoc disallowances are not permissible without specific defects. The Tribunal agreed, finding no merit in the Revenue's appeal, as the Assessing Officer had not pointed out any specific defects.

7. Deletion of Interest Disallowance Paid to the Assessee's Wife:

The Assessing Officer disallowed Rs. 1,44,427/- interest paid to the assessee's wife, claiming the assessee did not charge interest on certain loans and advances. The CIT(A) deleted the disallowance, finding no material to prove the nexus between borrowed funds and interest-free advances. The Tribunal upheld the CIT(A)'s decision, as the Revenue could not establish the required nexus.

Conclusion:

The Tribunal dismissed the Revenue's appeal, confirming the CIT(A)'s order on all grounds, and pronounced the order in the open court.