9911796707
TMI Blog2015 (9) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... e commission payment referred to section 195 of the Act but he has not dealt with the applicability of section 195 with reference to the facts of the case nor has brought on record any details for such application of section 195 and as the very basis of disallowance made by AO with reference to provisions of section 195 sub-section (1) are not correct and nor as discussed above, we do not find any error in the findings recorded by the CIT(A). We uphold the same. - Decided against revenue. - ITA No.432/Ahd/2012 - - - Dated:- 28-8-2015 - Shri Rajpal Yadav and Manish Borad, JJ. For The Appellant : Shri D. C. Mishra, Sr. DR For The Respondent : Shri S. N. Divetia, AR ORDER PER Manish Borad, Accountant Member. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO. The AO further observed that as the assessee has not made the actual payment within the prescribed period of 12 months framed under section 139(1) of the Act, hence it is not justified and not allowable u/s 195 of the I. T. Act and should be added in the total income of the assessee firm. Aggrieved, the assessee went in appeal before CIT(A) who deleted the disallowance made by the A.O. under section 195 of the Act by giving following observations :- 2.1 I have carefully considered the submission of the ld. counsel and the facts of the case. I have also considered the remand report of the Assessing Officer as well as the counter comments of the ld. counsel. The Assessing Officer had disallowed the commission expenses u/s 195 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sum chargeable under the provisions of the Act in section 195 of the Act was elucidated and explained. It was held that if payment is made in respect of the amount which is not chargeable to tax under the provisions of the Act, tax at source (TDS) is not liable to be deducted. There is no finding of the Assessing Officer that the commission payment of ₹ 11,42,000/- was taxable in India in the hands of 7 Secure Technologies LLC, Dubai. The ld. counsel has also relied upon the recent decision of the Hon ble Delhi High Court in the case of CIT vs. EON Technology P. Ltd. delivered 09.11.2011 in ITA No.1167/2011. In that cse, the decision of the Hon ble Supreme Court in the cases of CIT vs. Toshuku Ltd. 125 ITR 525 (SC), CIT vs. Eli Lil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate u/s 195(6) should be produced. The appellant by letter dated 16.12.2010 stated that the commission of US $28560 was payable to the said party for the export orders received through it during FY 2007-08 and the copy of agreement, declaration were furnished to AO. It was also contended by the appellant that in view of CBDT s Circular No.23 dated 23.7.1969 no TDS was required to be made u/s 195. The appellant also relied upon Circular No.786 dated 7.2.2000. Thereafter the appellant by reply dated 20.12.2010 furnished to AO foreign outward remittance advice, dt. 15.12.2020 of Bank of India, copy of Form No.15CA and Form No.15CB to prove the commission expenses. The appellant also letter dated 21.12.2020 has furnished the confirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide scope for taxing such payment because the basic criteria provided in the section is about accruing or arising in India by virtue of connection wit property or control or management vested in India which are not satisfied in the present case. The overseas agent of Indian exporter operates in his own country and not of his income arises in India and usually commn. Is remitted outside India thru banking channel. This view is fortified by the decision by the decision of Apex ourt in the case of Toshioku Ltd. (125 ITR 525). Recently, in case of Vijay ship Breaking Corpn. (314 ITR 309) (SC) held that the resident is not required to deduct TDS u/s 195(1) if the income of non-resident recipient is not taxable in India. The case law on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch other particulars as may be prescribed; Provided that a person referred to in clause (b) who is not required to furnish a return under this sub-section and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who (during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or) at any time during the previous year fulfills any one of the following conditions, namely- (i) Is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership tenancy or otherwise, as may be specified by the Board in this behalf; or (ii) Is the owner or the lessee of a motor vehicle other than ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
