2018 (12) TMI 109 - AT - Income Tax

TDS u/s 195 - payments made to non-residents - non deduction of tds - assessee filed certain documents in support of his contention that the payments made to non-residents were not towards any services performed by them within India and that they do not have any permanent or temporary establishment in India - Held that - On going through the material, we find that the documents prove that the services were rendered by the agents outside India and therefore, their commission income is not taxable in India. However, since these documents are filed for the first time before us, we deem it necessary to admit these documents and remit the issue to the file of the AO for reconsideration in accordance with law after verification of the documents. Needless to mention that the assessee shall be given a fair opportunity of hearing. - Decided in favour of assessee for statistical purposes.

Summary

Issues:
Disallowance of expenses under section 40(a)(ia) of the Income Tax Act for non-deduction of tax at source on payments made to non-resident export agents.

Analysis:
The assessee appealed against the CIT (A)'s order dated 29th September, 2017, challenging the disallowance of ?78,48,525 under section 40(a)(ia) of the Income Tax Act for non-deduction of tax at source on payments made to non-resident export agents. The assessee contended that the commission paid to non-resident entities was not taxable in India as per section 195(1) of the IT Act, as the services were wholly rendered outside India, and the agents did not have a permanent establishment in India. The CIT (A) upheld the AO's disallowance, stating that the assessee did not provide sufficient evidence that no services were rendered in India and that the agents had no permanent establishment in India.

During the hearing, the assessee submitted documents to support their claim that the payments to non-residents were not for services performed in India and that the agents did not have any establishment in India. These documents included Form No.11CD, Form No.15CA, bank acknowledgements for foreign remittance, and agent agreements. The Tribunal found that these documents established that the services were rendered outside India, making the commission income non-taxable in India. However, since these documents were submitted for the first time during the hearing, the Tribunal decided to admit them and remit the issue back to the AO for reconsideration after verifying the documents, ensuring the assessee a fair opportunity of hearing.

Ultimately, the Tribunal allowed the assessee's appeal for statistical purposes, emphasizing the need for the AO to reconsider the issue in light of the newly submitted documents. The order was pronounced in the Open Court on 24th October, 2018.