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TMI Blog2015 (10) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... zine “Stone World” printed and published in USA. The recipient of commission rendered services outside the India and claimed as business income. The recipient of commission is non-resident and had no permanent establishment in India. No income had accrued or arisen to the non-resident U/s 9 of the Act in the India. We upheld the order of the learned CIT(A) and held that no TDS U/s 195 of the Act is liable to be deducted. - Decided against assessee. - ITA No. 41/JP/2012 - - - Dated:- 28-8-2014 - SHRI R.P. TOLANI AND SHRI T.R. MEENA, JJ. For The Revenue : Shri D.C. Sharma For The Assessee : Shri P.C. Parwal ORDER PER T.R. MEENA, A.M. This is an appeal filed by the Revenue against the order dated 21/10/2011 by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remittances on account of interest, royalty or fees for technical services. It was provided, inter alia, that in case of payments of fees for technical services received from a resident payer, income would be deemed to accrue or arise in India, except where the fees for technical service are relatable to a business or profession carried on by the resident payer outside India or for making or earning any income from any source outside India. The contention of the assessee was that the sales commission was paid to non-residents for the services provided outside India and the said amount was not chargeable to tax in India as the said companies were not having any permanent establishment in India and whatever service being rendered by them were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee deductor on account of sales commission and advertisement are covered under the expression fee for technical services as defined in Section 9(1)(vii)(b) of the Act and the same are to be deemed income of the payee accrued or arising in India, consequently liable for withholding tax plus surcharge and education cess as per rates of tax prescribed. Thus, he is liable to deduct TDS U/s 195 of the Act and his default U/s 201(1) of the Act for Tax and interest U/s 201(1A) of the Act. Thus, he calculated total payment of ₹ 15,61,919/-. 3. Being aggrieved by the order of the learned Assessing Officer, the assessee carried the matter before the learned CIT(A), who has allowed the appeal by observing that the appellant compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Ltd. (217 CTR 491) (Delhi). iii. Siemens Aktiengesellchaft (2010-TIOL-102 ITAT Mumbai). iv. DCIT Vs. Divi s Laboratories Ltd. (10 ITR Trib. 501). v. JCIT Vs. George Williamson (Assam) Limited (305 ITR AT 422.) vi. Spahi Projects Pvt. Ltd. (315 ITR 374). vii. Lufthansa Cargo India Pvt. Ltd. (274 ITR AT 20). viii. G.E. India Technologies Center Pvt. Ltd. Vs. CIT (327 ITR 456). ix. CIT Vs. Tata Chemicals Ltd. (94 ITR 85). x. Carborandum Co. Vs. CIT (108 ITR 335). xi. CIT Vs. Toshuku Ltd. (125 ITR 525). xii. DIT Vs. Sharelten International Inc. (313 ITR 267). xiii. Modern Insulators Ltd. (ITA No. 281/JP/2010) Jpr. Trib). It is well settled law that the provisions of double taxation avoidance agreement woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nite to USA and paid commission of ₹ 85,21,582/- on export sale made to M/s Amshum Ash, USA and also paid ₹ 12,61,181/- towards advertisement charges to M/s BNP Media USA for advertisement of its product in an international monthly magazine Stone World printed and published in USA. The recipient of commission rendered services outside the India and claimed as business income. The recipient of commission is non-resident and had no permanent establishment in India. No income had accrued or arisen to the non-resident U/s 9 of the Act in the India. The Coordinate Bench in ITA Nos. 42,43,44,45 46/JP/2012 had decided identical issue and held that no TDS U/s 195 of the Act is liable to be deducted. Therefore, respectfully followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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