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TMI Blog2014 (2) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- The decision in Income Tax Officer Versus M/s ACL Wireless Wireless Limited [2014 (1) TMI 1305 - ITAT DELHI] followed - the expenditure in question was incurred as a matter of routine, for the business and commercial expediency of the assessee’s business – Decided against Revenue. Deletion made u/s 40(a)(ia) of the Act – TDS not deducted – Held that:- The assessee claimed that he did deduct the tax at source and deposited the same with the Government of India before the due date for filing of the return - the claim of the assessee needs to be factually examined - order set aside and the matter remitted back to the AO - Decided in favour of Revenue. Addition made for Non-deduction of TDS – Application of Section 9 of the Act - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2007-08 vide ITA No.1330/Del/2012 and AY 2008-09 vide ITA No.4743/Del/2012. That Hon'ble Jurisdictional High Court has upheld the order of the ITAT for AY 2007-08 vide judgment dated 10th December,2013 in ITA No.313/2013. Respectfully following the same, we uphold the order of learned CIT(A) and reject ground No.1 of the Revenue's appeal. 4. Ground No.2 of the Revenue's appeal reads as under:- "Whether the ld.CIT(A) has erred on facts and in law in deleting the addition of Rs. 4,57,253/- made on account of capitalization of license fee paid to M/s Nuance Communication ignoring the fact that the license fee paid by the assessee company to M/s Nuance Communication treating the same to be intangible asset and being in the nature of roya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... datory in the year when TDS was deductible but has not been deducted. There is no question of making allowance for the reason that the expenditure has been reversed in later year." 8. At the time of hearing before us, it is stated by the learned DR that learned CIT(A) has allowed the relief following his own order for AY 2008-09 which is reversed by the ITAT in ITA No.4743/Del/2012. She, therefore, submitted that the order of learned CIT(A) on this point should be reversed. 9. Learned counsel for the assessee, on the other hand, fairly admitted that the order of learned CIT(A) on this issue for AY 2008-09 has been reversed by the ITAT but he submitted that the facts of the year under appeal are altogether different. In AY 2008-09, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s replied by the assessee company vide letter dt. 21.11.2011 that there is a net provision for cost of content as on 31.03.2009 is Rs. 6,91,84,299/-, out of this provision for commission of Rs. 99,22,881/- on which no TDS is deductible since the commission is payable outside India. Thus, net amount of provision for cost of content on which TDS has not been deducted is Rs. 5,92,61,418/-." 11. From the above discussion, it is evident that the only reason for making the disallowance was failure of the assessee to deduct the tax as per the provisions of Section 40(a)(ia). The assessee has claimed before the learned CIT(A) as well as before us that the assessee did deduct the tax at source and deposited the same with the Government of India be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid to non-residents. The learned CIT(A) decided these issues following the decision of ITAT in the case of DCIT Vs. Angelique International Ltd. At the time of hearing before us, it was pointed out by the learned counsel that the above decision of ITAT has been upheld by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Angelique International Ltd. - [ 2013] 359 ITR 9 (Delhi), wherein their Lordships held as under:- "Held, dismissing the appeal, that by Circulars Nos.23, dated July 23, 1969, 163, dated May 29, 1975, and 786, dated February 7, 2000, it was clarified that payments in the form of a commission or discount to the foreign party were not chargeable to tax in India under section 9(1)(vii) of the Act. These circulars ..... X X X X Extracts X X X X X X X X Extracts X X X X
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