2011 (8) TMI 1319 - AT - Income Tax

Summary

Issues involved: Interpretation of Sec.195 and Sec.40(a)(i) regarding payments of commission and professional charges to non-residents.

Issue 1: Applicability of Sec.195 for commission and professional charges payments

The Revenue appealed against the CIT(A)'s decision regarding the applicability of Sec.195 for payments of commission and professional charges. The Tribunal referred to a previous case and emphasized that unless the income is taxable in India, there is no obligation to deduct tax u/s 195. It was highlighted that the overseas agents, being non-residents, do not accrue income in India, and therefore, the commission payments made to them are not liable to tax deduction. The Tribunal concluded that no tax is deductible u/s 195 on such commission payments, making the expenditure allowable and outside the scope of Sec.40(a)(ia).

Issue 2: Applicability of Sec.40(a)(i) for commission and professional charges to non-residents

The Revenue also challenged the CIT(A)'s decision on the applicability of Sec.40(a)(i) for commission and professional charges paid to non-residents. The Tribunal reiterated that since the overseas agents do not receive income in India, there is no requirement to deduct tax at source. The Tribunal upheld the CIT(A)'s decision, stating that the assessing officer failed to prove the payee's intention to receive payment within India, thus justifying the deletion of the addition made on this issue. The Tribunal ruled in favor of the assessee, dismissing the Revenue's appeal.

Conclusion:
The Tribunal's judgment clarified that payments of commission and professional charges to non-residents do not fall under the purview of Sec.195 and Sec.40(a)(i) if the income is not taxable in India. The decision was based on the principle that income must accrue in India for tax deduction obligations to apply. The Tribunal upheld the CIT(A)'s order, emphasizing that in the absence of proof of income accruing in India, no tax deduction is required on such payments, making them allowable expenditures.