2014 (7) TMI 1067 - AT - Income Tax

Addition u/s 40(a)(i) r.w section 195 - Commission paid to non-resident Held that - As per Circular No. 786 dated 07.02.2000 for non deduction of TDS, the Assessee was not required to deduct TDS u/s. 195 with regard to payment of commission to foreign agents - assessee had filed the return of income in accordance with the circular prevailing at that time Relying upon Dy. CIT v. Panchmahal Steel Ltd. 2010 (8) TMI 875 - ITAT AHMEDABAD - there was no default on the part of the assessee not to deduct TDS in such circumstances based upon its opinion on the CBDT circulars - no disallowance can be made Decided in favour of Assessee.

Summary

Issues involved:
1. Disallowance of commission paid to non-resident Indian under section 40(a)(i) r.w.s 195 of the Income Tax Act for A.Y. 2007-08.

Detailed Analysis:

Issue 1: Disallowance of commission paid to non-resident Indian under section 40(a)(i) r.w.s 195 of the Income Tax Act for A.Y. 2007-08:

The Assessee, engaged in the business of manufacturing chemicals, filed a return of income for A.Y. 2007-08, declaring total income. The assessment framed under section 143(3) resulted in a higher total income. The primary contention was the disallowance of commission paid to non-resident Indians, totaling a specific amount, without TDS deduction. The Assessing Officer (A.O) deemed the commission income of the non-resident as chargeable to tax in India under Sections 9 & 5 of the IT Act, making it liable for TDS under section 195. Consequently, the A.O disallowed the commission under section 40(a)(i) of the Act. The CIT(A) upheld this disallowance, emphasizing the obligation of TDS as per sec. 195 and dismissed the appeal.

The Assessee argued that the commission paid to non-residents was for facilitating export business and not taxable in India as the non-resident agents operated outside India without any income arising in India. The Assessee also relied on Circular No. 786 dated 07.02.2000, which was in force at the time, for non-deduction of TDS. The Assessee further cited a tribunal decision supporting their stance. The Tribunal noted the absence of permanent establishment or technical services provided by the non-residents in India and the reliance on the circular for non-deduction of TDS. Referring to a similar case precedent, the Tribunal ruled in favor of the Assessee, stating that no disallowance could be made, and thus, deleted the disallowance.

In conclusion, the Tribunal allowed the Assessee's appeal, emphasizing that the payments made to non-residents for commission were not chargeable to tax in India and were in compliance with the prevailing circular, leading to the deletion of the disallowance under section 40(a)(i) r.w.s 195 of the Income Tax Act for A.Y. 2007-08.

This comprehensive analysis covers the key issues and the detailed legal judgment provided by the Appellate Tribunal ITAT AHMEDABAD in the cited case.