2021 (1) TMI 1080 - AT - Income Tax

TDS u/s 195 - foreign commission expenses - failure to deduct tax at source on remittance of commission - chargeability of Income u/s 9 of Income Tax Act, 1961 in the hands of the non- resident/foreign company - CIT-A deleted the addition while holding that service rendered by foreign company towards sales promotions, procurement of export orders etc. were not covered within the ambit of fees for technical services u/s 9 or 195 - HELD THAT - As relying on case of DIT vs. Panalfa Autoelektrik Ltd. 2014 (9) TMI 706 - DELHI HIGH COURT when none of the services have been rendered by the foreign commission agent to the assessee in India and they have received their commission for rendering services as to procuring order from the foreign buyers/exporters, getting approval of samples of the assessee from the overseas buyers, negotiating orders on behalf of the assessee with the foreign buyers including negotiating rates of the assessee, helping the buyers to receive the goods from the assessee and reconciling the quantities and rates with invoices and packing list etc. and that foreign agents who have received the commission have been working for the assessee for the past many years and if at all foreign agents are liable for making payment of income-tax, they are liable to pay the same in their own countries where they are working for gains and earned their income by way of commission from the assessee. As relying on assessee's own case 2019 (5) TMI 1602 - ITAT DELHI we are of the considered view that ld. CIT (A) has rightly deleted the addition made by the AO u/s 40(a)(ia) of the Act treating the same being not covered under the ambit of fee for technical services u/s 9 or 195 of the Act. - Decided in favour of assessee.

Summary

Issues Involved:
1. Deletion of addition made under Section 40(a)(ia) of the Income Tax Act, 1961.
2. Determination of whether foreign commission expenses fall under "fees for technical services" as per Sections 9 and 195 of the Income Tax Act, 1961.
3. Applicability of tax deduction at source (TDS) on remittance of commission to foreign agents.

Issue-wise Detailed Analysis:

1. Deletion of Addition under Section 40(a)(ia):
The Revenue challenged the deletion of the addition of ?1,10,46,652/- made by the Assessing Officer (AO) under Section 40(a)(ia) of the Income Tax Act, 1961. The AO had disallowed the commission expenses paid to foreign agents due to the absence of TDS on the remittance, citing a business connection between the assessee and the non-resident agents. The Commissioner of Income-tax (Appeals) [CIT(A)] deleted the addition, which was upheld by the Tribunal. The Tribunal found no illegality or perversity in the CIT(A)'s order, noting that the services were rendered outside India and the commission was received by the agents in their respective countries.

2. Determination of "Fees for Technical Services":
The Revenue argued that the services rendered by the foreign agents for sales promotions and procurement of export orders constituted "fees for technical services" under Sections 9 and 195 of the Act. The Tribunal referred to the Delhi High Court's judgment in DIT vs. Panalfa Autoelektrik Ltd., which clarified that commission payments for procuring orders do not qualify as "fees for technical services." The High Court emphasized that managerial, technical, and consultancy services require human intervention and special skills, which were not involved in mere commission payments for order procurement.

3. Applicability of TDS on Foreign Commission:
The Tribunal examined whether TDS was mandatory under Section 195 irrespective of the chargeability of income under Section 9. The Tribunal noted that the foreign agents rendered services outside India and received payments outside India. The CIT(A) had thoroughly examined the evidence, including commission invoices, bank correspondence, and affidavits, and concluded that the provisions of Section 195 were not applicable. The Tribunal upheld this view, stating that the foreign agents were liable to pay taxes in their own countries where they earned the commission.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete the addition made under Section 40(a)(ia). It concluded that the commission payments to foreign agents did not fall under "fees for technical services" and that TDS under Section 195 was not applicable as the services were rendered and payments were received outside India. The Tribunal's decision was consistent with the Delhi High Court's judgment and previous Tribunal rulings in the assessee's own case for earlier assessment years.