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TMI Blog2015 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... 195 on such payments. The Hon'ble Apex Court in the case of GE India Technology Cen. (P) Ltd., Vs. CIT (2010 (9) TMI 7 - SUPREME COURT OF INDIA) has held that if the remittances is not taxable in India, the question of deducting tax on the said amount does not arise. Also see CIT Vs. Faizan Shoes (P) Ltd., (2014 (8) TMI 170 - MADRAS HIGH COURT). No error in the findings of CIT(Appeals) on the issue - Decided in favour of assessee. Disallowance of expenditure on overhauling of windmills as ‘current repairs’ u/s.37(1) - CIT(A) deleted disallowance - Held that:- The fact that the expenditure has been incurred on overhauling of wind mill machinery has not been disputed by Revenue. It is equally un-disputed that with the overhauling of wind m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation and profit of ₹ 8,24,21,606/- u/s.115JB of the Act. The case of the assessee was selected for scrutiny and notice u/s. 143(2) of the Act was issued to the assessee on 05-09-2011. During the course of scrutiny assessment, the Assessing Officer disallowed the payment of ₹ 19,44,100/- made to foreign agents without deduction of tax. The stand of the assessee is that the payments were made to the foreign agents for the services rendered by them in facilitating export of yarn/fabrics to overseas customers. The services were rendered outside India and the foreign agents do not have any Permanent Establishment [PE] in India. Remittances were made in foreign exchange through proper channel. During the period relevant to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri P.Radhakrishnan, appearing on behalf of the Revenue submitted that CIT(Appeals) has erred in deleting the dis-allowance made u/s.40(a)(ia) on payment of commissions made to foreign agents without deduction of tax at source. The ld.DR supported the assessment order on the issue. On the next ground raised in the appeal with regard to allowing the claim of assessee towards expenditure on overhauling of wind mill generators u/s.37 of the Act, the ld.DR submitted that the assessee claimed depreciation on the payment of amount towards overhauling of wind mill machinery. Since no new asset had come into existence, the claim of the assessee was rightly rejected by the Assessing Officer. As far as treating the amount as revenue expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides heard. Records in the case perused. In appeal, the Revenue has raised two issues. The first issue relates to dis-allowance u/s.40(a)(ia) in respect of commission paid to foreign agents without deduction of tax. The First Appellate Authority accepting the contentions of the assessee has given a categoric finding that the payments were made to overseas agents for the services rendered outside India in marketing of its products. The foreign agents have no PE in India and the remittances were made to them in foreign exchange through brokers. The Revenue has not been able to controvert the aforesaid findings. Since, the commissions paid to the overseas agents were not taxable in India, there was no question of deduction of tax at sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CIT reported as 284 ITR 323 (SC) has held that the Assessing Officer cannot entertain the claim of deduction otherwise then by filing a revised return. However, the powers of Income Tax Appellate Tribunal u/s.254 of the Act are not impinged to entertain claims, otherwise then by way of return. 7. The fact that the expenditure has been incurred on overhauling of wind mill machinery has not been disputed by Revenue. It is equally un-disputed that with the overhauling of wind mill machinery, there is no change in the capacity or structure of the wind mill. The overhauling of wind mills was carried out to sustain their production efficiency. We are of the considered opinion that the expenditure on overhauling of windmills is allowable as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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