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2017 (5) TMI 303 - HC - Income TaxDisallowance of commission to foreign agents - TDS u/s 195 - non deduction of tds - whether foreign agents had any operation carried out in India as per the provisions of Section 9(1)(i)? - Held that - When the respondent assessee had produced necessary documentary evidence in the form of confirmation letters of the commission paid to the foreign agents, necessary documents /invoices on which the commission have been paid have been produced and the commission has been paid through banking channel and with respect to the very foreign agents in the previous years the claim of the respondent assessee had been accepted consistently, learned CIT(A) as well as the learned tribunal has rightly deleted the disallowance made by the Assessing Officer. We are in complete agreement with the view taken by the learned tribunal as well as the learned CIT(A). - Decided in favour of assessee
Issues Involved:
1. Disallowance of commission paid to foreign agents. 2. Applicability of the principle of res judicata in income tax proceedings. 3. Fulfillment of conditions under Section 37(1) of the Income Tax Act. 4. Non-deduction of TDS on payments made to foreign agents. Issue-wise Analysis: 1. Disallowance of Commission Paid to Foreign Agents: The core issue revolves around the disallowance of the commission paid by the respondent-assessee to foreign agents. The Assessing Officer (AO) doubted the genuineness of these payments and disallowed them under Section 40(a)(ia) of the Income Tax Act. The respondent-assessee provided confirmation letters, banking transaction details, and invoices to substantiate the commission payments. Despite this, the AO disallowed the claims due to the absence of registered agreements and concrete evidence of services rendered by the foreign agents. However, both the Commissioner of Income Tax (Appeals) [CIT(A)] and the Income Tax Appellate Tribunal (ITAT) found the documentation provided by the assessee sufficient and genuine, leading to the deletion of the disallowance. 2. Applicability of the Principle of Res Judicata in Income Tax Proceedings: The revenue contended that the principle of res judicata does not apply to income tax proceedings, as highlighted by the Supreme Court. The AO had accepted similar claims in earlier assessment years (2006-07 and 2008-09), but this acceptance does not bind subsequent years. Despite this, the CIT(A) and ITAT considered the consistency in the acceptance of such claims in previous years as a factor in their decision to delete the disallowance. 3. Fulfillment of Conditions under Section 37(1) of the Income Tax Act: The revenue argued that the assessee failed to produce evidence of services rendered by the foreign agents, a condition under Section 37(1) for claiming expenses as business expenditure. The CIT(A) and ITAT, however, accepted the assessee's argument that the commission payments were a genuine business expenditure, supported by documentary evidence and confirmation from the foreign agents. 4. Non-deduction of TDS on Payments Made to Foreign Agents: The AO also disallowed the commission on the grounds of non-deduction of TDS, arguing that the payments to foreign agents should have been subject to tax deduction at source. The CIT(A) and ITAT found that the foreign agents did not have any operations in India, as per Section 9(1)(i) of the Income Tax Act. Consequently, the income of these non-residents was not deemed to accrue or arise in India, and thus, no TDS was required. This position was supported by the jurisdictional ITAT Ahmedabad's decision in the case of AIA Engineering Ltd. v/s. Addl. CIT. Conclusion: The High Court upheld the decisions of the CIT(A) and ITAT, agreeing that the assessee provided sufficient documentary evidence to substantiate the commission payments. The court found no substantial questions of law arising from the revenue's appeals and dismissed them, affirming that the disallowance made by the AO was rightly deleted by the lower authorities. The court's judgment emphasized the consistency in the acceptance of similar claims in previous years and the genuineness of the business expenditure incurred by the assessee.
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