2021 (2) TMI 726 - AT - Income Tax

TDS u/s 195 - disallowance u/s 40(a)(i) on account of non-deduction of tax at source while paying sales commission to non-residents - as held by the AO that the payment of commission by the assessee to non-resident agents is fee for technical services and hence the assessee was required to deduct tax at source - HELD THAT - Commission has been paid to various non-resident entities in respect of sales affected by the assessee outside of India, the services have been rendered by these entities outside of India and the payments have been made outside of India. In light of these undisputed facts, the legal proposition laid down in the aforesaid decision equally applies in the instant case and commission paid to non-resident outside India for the services rendered outside India will not fall in the category of the income received or deemed to be received in India as well as accrues or arises or is deemed to accrue or arise in India. Such commission payment or part thereof cannot therefore be held chargeable to tax in India and in absence of any income chargeable to tax, there was no liability to deduct tax at source u/s 195(1) and the provisions of section 40(a)(i) therefore cannot be invoked in the instant case. Further, out of total commission payment of ₹ 99,84,436, an amount of ₹ 1,55,867/- has been paid to a resident entity on which TDS has already been done which is again out of the ambit of provisions of section 40(a)(i) of the Act. In light of above discussions and considering the entirety of facts and circumstances of the case, the disallowance made by the Assessing officer by invoking provisions of section 40(a)(i) is hereby directed to be deleted. Appeals filed by the assessee are allowed.

Issues Involved:
1. Whether the CIT(A) erred in holding that the appellant's representative was specifically requested to clarify regarding any ruling obtained under section 245R(2).
2. Whether the CIT(A) erred in holding that the appellant was required to deduct tax at source on payments made to non-resident agents.
3. Whether the CIT(A) erred in holding that there was no evidence showing that the commission paid to non-residents was not chargeable to tax under the Income-tax Act.
4. Whether the CIT(A) erred in confirming the disallowance of ?99,84,435/- for non-deduction of tax at source on sales commission paid to non-residents.

Detailed Analysis:

Issue 1: Clarification Regarding Ruling Under Section 245R(2)
The appellant contended that the CIT(A) incorrectly held that the appellant's representative was specifically requested to clarify whether any ruling was obtained from the authority for advance ruling under section 245R(2) regarding the non-taxability of the income of the recipients. The appellant argued that no such clarification was sought during the appellate proceedings, making the CIT(A)'s finding unjustified.

Issue 2: Requirement to Deduct Tax at Source
The appellant argued that the CIT(A) was incorrect in holding that the appellant was required to deduct tax at source on payments made to non-resident agents, as these agents did not have any place of business or business connection in India. The appellant relied on the Supreme Court's decisions in G.E. (India) Technology Centre (P) Ltd. vs. CIT and Vijay Ship Breaking Corporation vs. CIT, which held that tax is required to be deducted at source only if the amount paid is chargeable to tax under the Income-tax Act. The appellant also cited various High Court decisions supporting the view that no tax was required to be deducted on commission payments to non-resident agents.

Issue 3: Evidence of Non-Taxability of Commission
The appellant contended that the CIT(A)'s finding that there was no evidence showing that the commission paid to non-residents was not chargeable to tax was incorrect. The appellant had provided certificates from the non-resident agents stating that the commission received was their business income and that they did not have any permanent establishment in India. The appellant argued that the commission payments were not chargeable to tax under the Income-tax Act, and hence, no tax was required to be deducted at source.

Issue 4: Disallowance of ?99,84,435/-
The appellant argued that the CIT(A) erred in confirming the disallowance of ?99,84,435/- under section 40(a)(i) for non-deduction of tax at source on sales commission paid to non-residents. The appellant contended that the commission payments were not in the nature of fees for technical services and were not chargeable to tax in India. The appellant relied on various judicial precedents, including decisions from the Gujarat and Madras High Courts, which held that commission payments to foreign agents are not fees for technical services and are not taxable in India.

Tribunal's Findings:

The Tribunal found that the CIT(A) and the Assessing Officer (AO) had incorrectly interpreted the provisions of section 195 and Explanation 2 to section 195(1). The Tribunal held that the obligation to deduct tax at source under section 195 arises only if the payment is chargeable to tax in India. The Tribunal relied on the Supreme Court's decision in G.E. (India) Technology Centre (P) Ltd. vs. CIT, which clarified that tax is required to be deducted at source only on the income component of the payment that is chargeable to tax in India.

The Tribunal also noted that the CIT(A) and AO had incorrectly classified the commission payments as fees for technical services. The Tribunal referred to various judicial precedents, including the ITAT Jaipur Bench's decision in Satyam Polyplast vs. DCIT, which held that commission payments to non-residents for services rendered outside India are not chargeable to tax in India and hence, no tax is required to be deducted at source.

The Tribunal concluded that the commission payments made by the appellant to non-resident agents were not chargeable to tax in India, and therefore, the appellant was not required to deduct tax at source under section 195. Consequently, the disallowance of ?99,84,435/- under section 40(a)(i) was deleted.

Conclusion:
The Tribunal allowed both appeals filed by the assessee, holding that the commission payments to non-resident agents were not chargeable to tax in India and that the appellant was not required to deduct tax at source. The disallowance of ?99,84,435/- under section 40(a)(i) was deleted. The Tribunal's findings were based on the interpretation of section 195 and judicial precedents, including the Supreme Court's decisions and ITAT Jaipur Bench's decisions.

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