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2018 (4) TMI 81 - AT - Income TaxNon deduction of tds on payment to non-residents - disallowance of sales commission to foreign agents - PE in India - income deemed to accrue or arise in India - DTAA - Held that - The assessee has a choice of applying either the provisions of the DTAA or the Income-tax Act, whichever is more beneficial to him. In view of the articles of the DTAA, for holding the fee for technical services as liable to tax in source country, the services should make available the technical knowledge etc to the assessee of the source country. AO has not been able to establish that the services of procuring orders has made available any technical knowledge, experience, skill know-how etc. to the assessee, and, therefore, in our considered opinion, the services rendered by the non-resident agents cannot be taxed as fee for technical services under the DTAA. We hold that income from services of the non-residents of procuring orders are not chargeable to tax in India and, therefore, assessee was not liable to deduct tax at source on the payments of commission made to those agents, accordingly, no disallowance could have been made under section 40(a)(i) of the Act. The finding of the Ld. CIT(A) on the issue in dispute is upheld and accordingly, the ground of the appeal of the Revenue is dismissed.
Issues Involved:
1. Disallowance of sales commission to foreign agents amounting to ?1,39,60,134 due to non-deduction of TDS. 2. General grounds of appeal. Issue-Wise Analysis: 1. Disallowance of Sales Commission to Foreign Agents: Facts: The assessee company, engaged in manufacturing and export of furniture and leather goods, filed its return of income declaring ?1,07,47,960. The Assessing Officer (AO) disallowed sales commission payments to foreign agents amounting to ?1,39,60,134 due to non-deduction of TDS, resulting in an assessed total income of ?2,56,15,450. Assessing Officer's View: The AO considered the payments to foreign agents as managerial services, taxable under sections 9(1)(i) and 9(1)(vii)(b) of the Income-tax Act, 1961, and disallowed the payments under section 40(a)(i) due to non-deduction of TDS. Assessee's Argument: The assessee argued that the foreign agents did not operate in India, had no permanent establishment (PE) in India, and did not render technical, managerial, or consultancy services. Therefore, the payments were not liable for Fee for Technical Services (FTS) under the Act or under the Double Taxation Avoidance Agreement (DTAA) with Canada and the UK. CIT(A)'s Decision: The CIT(A) deleted the disallowance, relying on precedents like DCIT Vs. EON Technology Private Limited and Allied Nippon Ltd versus DCIT. The CIT(A) concluded that the foreign agents were non-residents, no part of their services was rendered in India, and they did not have a PE in India. Tribunal's Analysis: - Business Connection: The Tribunal noted that the AO failed to establish any "business connection" as required under section 9(1)(i). The CBDT Circular No. 23 (1969) and Circular No. 786 (2000) clarified that commission paid to foreign agents operating outside India is not taxable in India. - Managerial Services: The Tribunal found that the services of procuring export orders do not fall under managerial services as defined in the Act. The AO did not demonstrate how these services were managerial. - Retrospective Amendment: The Tribunal acknowledged the Finance Act, 2010's retrospective amendment but held that it cannot create an obligation to deduct TDS retrospectively. The Tribunal cited the decision in KPMG Vs. ACIT, which held that tax withholding obligations depend on the law at the time of payment. - DTAA Provisions: Under the DTAA with Canada and the UK, for services to be taxed as FTS, they must "make available" technical knowledge to the payer. The Tribunal found no evidence that the services provided by the foreign agents made any technical knowledge available to the assessee. Conclusion: The Tribunal upheld the CIT(A)'s decision, holding that the foreign agents' income from procuring orders was not chargeable to tax in India. Consequently, the assessee was not liable to deduct TDS on the commission payments, and no disallowance under section 40(a)(i) was warranted. 2. General Grounds of Appeal: The Tribunal dismissed the general grounds of appeal as infructuous. Final Decision: The appeal of the Revenue was dismissed. The Tribunal pronounced the decision in the open court on 7th February 2018.
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