2018 (6) TMI 1545 - AT - Income Tax

TDS u/s 195 - Disallowance of commission expenses paid to a foreign party - non deduction of tds - income accrued in India - Held that - The invoice raised by the assessee as well as the Letter of Credit obtained by the customer of the assessee from bank clearly show that 2% commission was payable to local agents. It was submitted that the same was paid as per terms and conditions entered between the parties. In effect, what the assessee realised was only 98% of the invoice value. Even if the assessee was not able to substantiate the nature of services provided by the local agents, the shortage in realisation is allowable as normal business deduction. Since the impugned payment is not chargeable to tax in India in the hands of recipients, the provisions of sec. 40(a)(i) will not apply. - Decided in favour of assessee Disallowance made u/s 14A - Held that - Section 14A will not apply if no exempt income is received or receivable during the relevant previous year. Accordingly we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the disallowance made u/s 14A of the Act.- Decided in favour of assessee

Summary

Issues:
1. Disallowance of commission expenses paid to a foreign party for AY 2009-10.
2. Disallowance of commission expenses for AY 2011-12.
3. Disallowance made under section 14A of the Act for AY 2011-12.

Analysis:

Issue 1: Disallowance of Commission Expenses for AY 2009-10
- The appellant contested the decision of Ld CIT(A) regarding the disallowance of commission expenses paid to a foreign party.
- The AO disallowed a portion of the commission expenses for non-deduction of tax at source under section 40(a)(ia) of the Act.
- The Ld CIT(A) upheld the disallowance and noted the lack of evidence showing services rendered by the foreign agents.
- The appellant argued that the commission was based on export terms, and the local agents were entitled to a percentage of sales value.
- The tribunal found merit in the appellant's contentions, noting that the commission was part of the export terms and the appellant realized only 98% of the invoice value.
- As the impugned payment was not taxable in India for the recipients, the tribunal directed the AO to delete the disallowance of the commission expenses.

Issue 2: Disallowance of Commission Expenses for AY 2011-12
- The appellant challenged the disallowance of commission expenses for this assessment year.
- The AO disallowed the expenses for non-deduction of tax at source, similar to the previous year.
- Following the reasoning from AY 2009-10, the tribunal directed the AO to delete the disallowance of commission expenses for AY 2011-12 as well.

Issue 3: Disallowance under Section 14A of the Act for AY 2011-12
- The AO disallowed expenses under section 14A as the appellant held investments, even though no exempt income was earned.
- The Ld CIT(A) confirmed the disallowance, despite the appellant not earning any exempt income.
- The appellant relied on a Delhi High Court decision to argue against the disallowance under section 14A.
- The tribunal agreed with the appellant, citing the Delhi High Court decision that section 14A does not apply if no exempt income is received or receivable.
- Consequently, the tribunal directed the AO to delete the disallowance made under section 14A of the Act for AY 2011-12.

In conclusion, all three issues raised by the appellant were decided in their favor, and both appeals were allowed by the tribunal.