2019 (3) TMI 1969 - AT - Income Tax

TDS u/s 195 - non-deduction of TDS on the payment made to foreign entity in USA and Italy (SPA) holding the same as commission - whether such payments made was in the nature of commission or fee for technical services and the assessee only named the same as commission - HELD THAT - DR though relied on the orders of the Assessing Officer, but did not object to the contention of the learned AR that the issue involved in both these appeals are squarely covered by the decision of Co-ordinate Bench in assessee's own case for A.Y. 2010-11 2019 (1) TMI 537 - ITAT DELHI whereby in the identical facts of the case, the payments made to the same agents have been treated as commission and not as fee for technical services - Decided against revenue.

Summary

Issues:
1. Disallowance of TDS on payments made to foreign entities - commission or fee for technical services.

Analysis:
The judgment by the Appellate Tribunal ITAT Delhi involved two appeals by the Revenue against separate orders of the ld. CIT(A)-35 for the assessment years 2012-13 and 2013-14. The main issue in both appeals was the disallowance of TDS on payments made to foreign entities, specifically whether the payments were in the nature of commission or fee for technical services. The Revenue challenged the deletion of additions amounting to ?1,47,04,728/- for A.Y. 2012-13 and ?2,54,24,667/- for A.Y. 2013-14.

During the proceedings, the Revenue contended that the ld. CIT(A) was incorrect in deleting the disallowance of TDS. However, the Revenue did not object to the fact that the issue was similar to a previous decision by the Co-ordinate Bench in the assessee's own case for A.Y. 2010-11. In the earlier case, payments to the same agents were treated as commission and not as fee for technical services, which was upheld by the ITAT, Delhi Bench.

The findings of the previous case highlighted that the agent was acting as a commission agent, not providing technical services to the assessee. It was established that the commission income of the agent was not taxable in India as the foreign entity did not have a Permanent Establishment (PE) or Business Connection (BC) in India. The income accrued in the foreign country, and no technical knowledge or expertise was transferred to the assessee. Therefore, the ld. CIT(A) had rightly deleted the addition of the disallowed amount.

After considering the submissions and previous decisions, the Appellate Tribunal upheld the orders of the ld. CIT(A) and dismissed both appeals by the Revenue. The Tribunal found no reason to interfere with the decision regarding the nature of the payments made to the foreign entities, confirming that they were rightly treated as commission and not as fee for technical services.

In conclusion, the judgment clarified the distinction between commission and fee for technical services in the context of TDS disallowance on payments to foreign entities. The decision was based on previous legal precedents and established principles regarding the taxability of such payments.