2015 (3) TMI 189 - AT - Income Tax

Non-deduction of TDS on the agency commission paid to non-resident agents - CIT(A) deleted the disallowance u/s 40(a)(i) - Held that - TDS is required to be deducted on all payments to non-residents if the said payments are liable for tax in India. In the instant case, the commission payments to the non-resident agents are not taxable in India as the services are rendered abroad and the agents have no PE in India. Therefore, there is no requirement to deduct TDS on these payments. See GE India Technology Cen. P Ltd. v. CIT 2010 (9) TMI 7 - SUPREME COURT OF INDIA ) - Decided in favour of assessee.

Summary

Issues:
Disallowance of agency commission payments made by the assessee to non-resident agents under section 40(a)(i) of the Act for non-deduction of TDS.

Analysis:
The Assessing Officer disallowed agency commission payments made to non-resident agents for non-deduction of TDS under section 195 of the Act. The Revenue contended that the payments were liable for TDS due to the withdrawal of Circular No.786 dated 7.2.2000. However, the Commissioner of Income Tax (Appeals) deleted the disallowance based on precedents like the case of G.E. India Technology Centre (P) Ltd. v. CIT (327 ITR 456) and decisions of the ITAT Chennai in similar cases. The Commissioner held that the services provided by non-residents did not amount to managerial/technical services and were not assessable to tax in India, thus not falling under section 195 of the Act.

The Departmental Representative supported the Assessing Officer's decision, emphasizing the obligation to deduct TDS under section 195. In contrast, the counsel for the assessee echoed the Commissioner's decision, arguing that the non-resident agents had no business connection or permanent establishment in India, rendering their services abroad. The payments made to them were not taxable in India, as per various judicial precedents.

The Tribunal upheld the Commissioner's decision, stating that the sales commission paid to overseas agents was solely for procuring orders without technical services, not falling under interest, royalty, or fees for technical services. Citing the Supreme Court's ruling in G.E. India Technology Centre (P) Ltd. v. CIT, the Tribunal concluded that the payments were not chargeable to tax in India, thus not requiring TDS deduction under section 195 of the Act.

In conclusion, the Tribunal dismissed the appeals of the Revenue and the cross objections of the assessee, affirming the Commissioner's order in deleting the disallowance of sales commission paid to non-resident agents. The Tribunal found no infirmity in the Commissioner's decision and upheld it based on the non-taxable nature of the payments made to overseas agents for procuring orders.