2016 (8) TMI 1082 - AT - Income Tax

TDS u/s 195 - Payment of commission to the foreign agents - Held that - Once the genuineness of the expenditure has been accepted in earlier years the payment of commission to the same parities cannot be considered as incurred for non-business purposes. Further the commission have been paid to the non-resident who do not have any Permanent Establishment in India and therefore not liable to tax in India. Therefore the provisions of Section 195 also do not apply on the facts of the case. Considering the aforementioned facts in totality we do not find any error or infirmity in the findings of the ld. CIT(A). Both these appeals by the Revenue are accordingly dismissed.

Summary

Issues:
Appeals by Revenue against deletion of addition on account of commission expenses for A.Y. 2009-10 and A.Y. 2012-13.

Analysis:
1. Issue 1 - Commission Expenses for A.Y. 2009-10:
- Revenue's grievance was the deletion of addition made by the A.O. on commission expenses totaling &8377; 69,14,768.
- A.O. found the commission payments to foreign agents but disallowed them as non-business expenses.
- A.O. invoked Section 9 and Section 40(a)(ia) of the Act for non-deduction of tax at source.
- CIT(A) observed that the expenses were genuine, supported by documentary evidence, and the foreign agents had no operations in India.
- CIT(A) relied on precedents and deleted the addition, stating no tax was deductible due to non-residents' lack of operations in India.

2. Issue 2 - Commission Expenses for A.Y. 2012-13:
- Similar grievance by Revenue regarding deletion of addition of &8377; 84,24,214 made by A.O.
- CIT(A) followed the decision of the predecessor, considering consistency and past rulings in favor of the appellant.
- CIT(A) reiterated that the expenses were genuine, payments were made through banking channels, and no operations were carried out in India by the foreign agents.
- CIT(A) deleted the addition based on the previous decisions and lack of taxable income in India.

3. Overall Decision:
- The Tribunal dismissed Revenue's appeals, upholding CIT(A)'s decision.
- The genuineness of expenses, lack of taxable income in India, and precedents supporting the appellant's case were crucial in the Tribunal's decision.
- Previous acceptance of similar expenses in earlier years and non-residents' lack of Permanent Establishment in India were key factors in dismissing the appeals.
- The Tribunal found no errors in CIT(A)'s findings and upheld the deletion of the additions on commission expenses.

This detailed analysis highlights the key issues, arguments, and decisions made in the legal judgment regarding the deletion of commission expenses by the Revenue for the respective assessment years.