2021 (5) TMI 479 - AT - Income Tax

Action of CIT(A) in admitting additional evidence filed by the assessee - non-genuineness of overseas commission expense - CIT(A) treating the Overseas Commission expenses as a genuine business expense - HELD THAT - The power of the appellate authority to direct for the production of a document or examination of the witness as a matter of fact is in furtherance of any enquiry contemplated by Section 250(4) of the Act is contained in sub Rule 4 of Rule 46-A of the Rules and it can be exercised to enable the appellate authority to dispose of the appeal or for any other substantial cause necessary for the adjudication of the controversy involved in appeal. The power of the appellate authority is like a inherent power which can be exercised suo-motu without any application from any of the contesting party. And in order to follow the principles of natural justice or fair play, Appellate Authority can ask for the any detail which are relevant for the disposal of the an appeal. Commission agent to overseas commission is concerned as per Hon ble Supreme Court judgment in TOSHOKU LIMITED (AND ANOTHER APPEAL) 1980 (8) TMI 2 - SUPREME COURT the assessee is not liable to deduct TDS for any payment which is made to overseas agent. And we do not find any infirmity in the order passed by the Ld. CIT(A). However, we refuse to entertain the present appeal. Appeal filed by the Revenue is dismissed.

Summary

Issues:
1. Treatment of overseas commission expenses as a genuine business expense.
2. Decision on the issue of non-genuineness of overseas commission expense.
3. Admissibility of additional evidence by the appellant.
4. Disallowance of expenses under section 40(a)(ia) of the Income Tax Act.
5. Dispute regarding the deduction of Tax Deducted at Source (TDS) on commission payment to overseas agents.

Analysis:

1. The appeals were filed by the Revenue against the order of the Commissioner of Income Tax (CIT) regarding the treatment of overseas commission expenses as genuine business expenses. The appellant argued that the CIT erred in treating these expenses as genuine without fully appreciating the facts and evidence on record.

2. The case involved the debiting of an amount for overseas commission expenses by the assessee. The Assessing Officer (AO) questioned the nature of these expenses and whether the provisions under section 195 of the Income Tax Act were applied. The appellant contended that payments were made to overseas vendors as commission and cited a Supreme Court judgment to support their claim that non-resident commission agents are not liable to tax in India for services rendered outside India.

3. The AO disallowed the expenses as the appellant failed to provide copies of agreements or communications with the commission agents, except for one overseas agent. The appellant submitted additional evidence to the CIT(A), including a breakdown of expenses, details of overseas agents, declarations from agents, and a reconciliation of commission payments.

4. After considering the additional evidence, the CIT(A) deleted the disallowance made by the AO under section 40(a)(ia) of the Act. The Revenue challenged this decision before the Appellate Tribunal, arguing against the admissibility of the additional evidence.

5. The Tribunal upheld the CIT(A)'s decision, citing Rule 46-A which allows the admission of additional evidence under specific circumstances. It reiterated the Supreme Court's judgment regarding TDS on payments to overseas agents and found no fault in the CIT(A)'s order. The Tribunal dismissed the appeal filed by the Revenue, concluding that the appellant was not liable to deduct TDS for payments made to overseas agents.

6. In a separate appeal for a different assessment year, the Revenue raised similar grounds related to the disallowance of expenses under section 40(a)(ia). The Tribunal, based on the facts of the case and the previous appeal, dismissed this appeal as well, maintaining consistency in its decisions.

In conclusion, the Appellate Tribunal upheld the CIT(A)'s decision to allow the overseas commission expenses and dismissed the appeals filed by the Revenue, emphasizing the non-liability of the appellant to deduct TDS on payments to overseas agents based on relevant legal precedents and evidence presented during the proceedings.