2017 (10) TMI 57 - AT - Income Tax

Revision u/s 263 - commission paid to the non-resident for rendering services outside India is taxable in India - Held that - On this aspect of the matter, the Division Bench of this Tribunal in the case of DCIT vs. Welspun Corp Ltd 2017 (1) TMI 1084 - ITAT AHMEDABAD has taken a view in favour of the assessee and has concluded that the payment of commission for services rendered in India is not taxable in the hands of the non-resident recipients of such commission. When this fact was pointed out to the ld. CIT-DR, he did not have much to say except for placing reliance on the stand taken by the learned Commissioner in the impugned order. The stand of the Commissioner in the impugned appeal is incorrect and does not meet our approval. We, therefore, hold that the Commissioner was not justified in invoking his powers under Section 263 of the Act on the basis of his understanding that commission paid to non-resident even for services rendered outside India is taxable in India. The very foundation of the impugned order is devoid of legally sustainable basis. The impugned order is thus quashed and the assessee gets the relief accordingly. - Decided in favour of assessee.

Summary

Issues Involved:
1. Invocation of Section 263 of the Income Tax Act, 1961.
2. Setting aside the assessment under Section 143(3).
3. Non-dropping of proceedings under Section 263.
4. Proper enquiry and verification during the assessment under Section 143(3).
5. Non-deduction of TDS under Section 195 on payments to a non-resident.
6. Applicability of Section 40(a)(i) for non-deduction of tax.
7. Applicability of surcharge and cess under the DTAA between India and Japan.

Detailed Analysis:

1. Invocation of Section 263 of the Income Tax Act, 1961:
The assessee challenged the Principal Commissioner's order dated 30.03.2015, which invoked Section 263 of the Income Tax Act, 1961. The Principal Commissioner believed that the commission paid to the non-resident for services rendered outside India was taxable in India. The Tribunal referred to the Division Bench's decision in DCIT vs. Welspun Corp Ltd, which concluded that such payments are not taxable in India if no part of the operations of the recipient non-residents is carried out in India.

2. Setting Aside the Assessment under Section 143(3):
The Principal Commissioner set aside the assessment completed under Section 143(3) and directed the Assessing Officer (AO) to frame a fresh assessment on issues already considered during the original assessment. The Tribunal found this action unjustified, as the AO had already examined the issues at length during the original assessment.

3. Non-Dropping of Proceedings under Section 263:
The assessee argued that the proceedings under Section 263 should have been dropped as they had provided full explanations for the issues raised by the Principal Commissioner. The Tribunal agreed, noting that the Principal Commissioner’s basis for invoking Section 263 was not legally sustainable.

4. Proper Enquiry and Verification during the Assessment under Section 143(3):
The Principal Commissioner observed that the assessment under Section 143(3) was framed without proper enquiry and verification. However, the Tribunal found that the AO had indeed examined the issues comprehensively and called for various details during the assessment process.

5. Non-Deduction of TDS under Section 195 on Payments to a Non-Resident:
The Principal Commissioner held that the assessee failed to deduct TDS under Section 195 on payments made to a non-resident, thereby directing the AO to disallow ? 4,22,965 under Section 40(a)(i). The Tribunal, referencing the Welspun Corp Ltd case, concluded that the payment for services rendered outside India is not taxable in India, thus no TDS was required.

6. Applicability of Section 40(a)(i) for Non-Deduction of Tax:
The Principal Commissioner believed that the provision of Section 40(a)(i) could be invoked due to the non-deduction of tax. The Tribunal disagreed, stating that there was no absolute failure in deducting tax as the payments were not taxable in India.

7. Applicability of Surcharge and Cess under the DTAA between India and Japan:
The Principal Commissioner held that the payment made to the non-resident was subject to surcharge and cess, disregarding Article 2 of the DTAA between India and Japan. The Tribunal found this observation incorrect, emphasizing that the DTAA provisions should be adhered to.

Conclusion:
The Tribunal quashed the Principal Commissioner’s order under Section 263, holding that the commission paid to non-residents for services rendered outside India is not taxable in India. Consequently, the AO’s original assessment under Section 143(3) was upheld, and the assessee’s appeal was allowed.