2016 (4) TMI 1422 - AT - Income Tax

TDS u/s 195 - disallowance under sec. 40(a)(ia) - non-deduction of tax at source on payments of commission to non-resident sales agents - second round of adjudication - HELD THAT - Division Bench of Bombay High Court in the case of CIT Vs. Gujarat Reclaim Rubber Products Ltd. 2015 (12) TMI 1078 - BOMBAY HIGH COURT it has been, inter alia, held that before effecting deduction at source one of the aspects to be examined is whether such income is taxable in terms of the Income Tax Act. This aspect has not been considered by the Tribunal while concluding that the appellant has committed a default in not deducting the tax at source. We find that the Commissioner of Income Tax (Appeals) has given a finding that the services of non-resident sales agents namely Mitsui Co. Ltd. and Allied Ore Inc, Japan, are performed outside India and the same are not taxable in India, hence, TDS is not deductable from the payments made to them. This finding of fact by the Commissioner of Income Tax (Appeals) is not disputed by the Revenue before us.Therefore, this issue stands covered by the decision of the Hon ble Bombay High Court in the case of Gujarat Reclaim Rubber Products Ltd. 2015 (12) TMI 1078 - BOMBAY HIGH COURT - Decided against revenue.

Summary

Issues:
- Disallowance under sec. 40(a)(ia) for non-deduction of tax at source on commission payments to non-resident sales agents.
- Applicability of provisions of sec. 195 and Explanation-II introduced by the Finance Act, 2012.
- Restoration of issue by Hon’ble Bombay High Court for re-adjudication by the Tribunal.
- Consideration of taxability of income in terms of the Income Tax Act for deduction at source.
- Interpretation of Circulars issued by the CBDT regarding commission payments to non-resident agents.

Analysis:
1. The case involved an appeal by the Revenue against the order of the Commissioner of Income Tax (Appeals) concerning disallowance under sec. 40(a)(ia) for non-deduction of tax at source on commission payments to non-resident sales agents. The Tribunal initially upheld the disallowance, citing the amended provisions of sec. 195 and Explanation-II introduced by the Finance Act, 2012, making it clear that TDS obligations apply to all persons, resident or non-resident. The Tribunal restored the issue back to the file for re-adjudication following a decision by the Hon’ble Bombay High Court.

2. The Hon’ble High Court emphasized the importance of examining whether the income is taxable under the Income Tax Act before effecting deduction at source. It referred to a specific case where it was held that commission paid to non-resident agents for services rendered outside India was not taxable in India, thus TDS was not applicable. The Court highlighted the withdrawal of certain Circulars by the CBDT and their non-retrospective effect, supporting the non-deduction of TDS in the given scenario.

3. The Tribunal, in its re-adjudication, relied on previous decisions and Circulars to conclude that the commission payments to non-resident agents were not taxable in India, aligning with the position taken by the Hon’ble High Court. It emphasized the non-applicability of Circulars withdrawn post the assessment years in question, thereby affirming the non-requirement of TDS deduction. The Tribunal dismissed the Revenue’s appeal based on the established legal precedents and the specific facts of the case.

4. The judgment highlighted the significance of legal interpretations, Circulars, and precedents in determining the taxability of income and the applicability of TDS provisions. It showcased the adherence to established legal principles and the need for a comprehensive analysis of the facts to arrive at a just decision. The case underscored the importance of considering relevant laws and Circulars in tax matters to ensure fair treatment and compliance with statutory requirements.