2013 (2) TMI 503 - AT - Income Tax

Commission to foreign agent - Assessee paid commission to foreign agent - Assessee s name was appearing in the report of Volcker Committee, wherein it was mentioned that commission paid to parties outside India in respect of sale of goods to Iraq is unethical - On this basis AO disallowed the commission payments as it is illegal payment Held that - Mere appearance of the name of the appellant-company in the Volcker Committee s Report could not lead to an adverse inference against the appellant because the appellant itself has admitted to have made export gainst sale contracts procured from the Govt. of Iraq and payment of commission therefor - Payment of commission by the appellant for the services rendered in procuring the sale contracts and for facilitating smooth execution of the sale contracts. The appellant has produced ample material in support of the reasonableness and legality of the payment of commission - commission was paid through the normal Banking channel - payment of commission was made for the purpose of business on grounds of business expediency and there was no element of illegality in making the payment Against the revenue. Further, Section 40(a)(i) shall not be applicable in the given case since there is no liability on the appellant to deduct taxes at the time of payment of the commission to an agent outside India and deposit the same with the tax authorities No violation of Section 195 - Against the revenue.

Summary

Issues Involved:
1. Legality of commission payment to Iraqi politician in the 'oil for food scheme'.
2. Applicability of Section 40(a)(ia) regarding non-deduction of tax from payment to foreign agents under Section 195.
3. Admissibility of appeals due to delay.
4. Imposition of penalty under Section 271(1)(c) of the Income Tax Act, 1961.

Detailed Analysis:

1. Legality of Commission Payment to Iraqi Politician in the 'Oil for Food Scheme':
The primary issue revolves around the disallowance of commission payments to a foreign agent, deemed illegal by the Assessing Officer (AO) based on the Volcker Committee's report. The AO disallowed these payments, considering them unethical and unlawful under the UN-sponsored 'oil for food' program. However, the Commissioner of Income Tax (Appeals) [CIT(A)] allowed the claim, stating that the payments were made for procuring orders and ensuring payment, and were not illegal kickbacks. The CIT(A) referenced the Volcker Committee's report, which lacked specific information on the payments, and cited CBDT Circulars No. 23 and 786, which clarify that commission payments to foreign agents for services rendered outside India are not taxable in India and hence, no tax deduction at source (TDS) is required under Section 195. The CIT(A) also noted that no evidence was presented to prove the payments were kickbacks or illegal, and the payments were made through normal banking channels, thus qualifying as allowable business expenditure.

2. Applicability of Section 40(a)(ia) Regarding Non-Deduction of Tax from Payment to Foreign Agents Under Section 195:
The CIT(A) ruled that Section 40(a)(ia) does not apply in this case since the payments were made to a foreign agent for services rendered outside India, and no part of the income arose in India. Therefore, the assessee was not liable to deduct TDS under Section 195, making the commission payments allowable as business expenditure. This decision was supported by previous Tribunal rulings in similar cases, such as M/s. Northern Projects Ltd., Limtex Tea & Indus. Ltd., and M/s. Kotsons (P) Ltd., where the payments were deemed made for business purposes and not for any extraneous considerations.

3. Admissibility of Appeals Due to Delay:
The appeals were delayed by 23 and 31 days. The revenue filed affidavits explaining the delay, which included reasons such as non-communication of the application for filing the second appeal and processing time. The Tribunal admitted the appeals, acknowledging the reasonable cause for the delay as conceded by the counsel.

4. Imposition of Penalty Under Section 271(1)(c) of the Income Tax Act, 1961:
Since the Tribunal dismissed the revenue's appeal on the primary issues, the penalty imposed under Section 271(1)(c) became inconsequential. The Tribunal upheld the CIT(A)'s decision to delete the disallowance of the commission payments, thereby nullifying the basis for the penalty.

Conclusion:
The Tribunal dismissed all four appeals by the revenue, confirming the CIT(A)'s orders. The commission payments were deemed lawful business expenditure, not subject to TDS under Section 195, and the delay in filing appeals was justified. Consequently, the penalties imposed under Section 271(1)(c) were also dismissed. The judgment was pronounced in open court.