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TMI Blog2017 (1) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... n record to prove that assessee had failed to disclose fully and truly all material facts relating to the assessment in the original assessment proceedings. Especially so, since assessee filed all required information called for by the ld. Assessing Officer during the original assessment proceedings. In the circumstances, it s of the opinion that assessee has to succeed in all the grounds raised by it. - Decided in favour of assessee - I.T.A. No.3061/Mds/2016 - - - Dated:- 25-1-2017 - SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER For The Appellant : Shri. R. Kumar, Advocate For The Respondent : Shri. Supriya Pal, IRS, JCIT. ORDER Assessee in this appeal apart from assailing validity of the reassessment pursuant to reopeni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2 to Sec. 195(1)(i) of the Act introduced by Finance Act, 2012 with retrospective effect from 01.04.1962 clearly mandated deduction of tax at source irrespective of the fact whether the Non-Resident concern had a place of business or business connection or any presence in India. Thus, he held that assessee had failed to deduct tax at source at the commission of ₹ 8,24,620/- paid to the Non-Resident Agent attracting the rigours of Sec. 40(a)(i) of the Act. He disallowed the claim and completed reassessment. 3. Aggrieved, the assessee moved in appeal before ld. Commissioner of Income Tax (Appeals). Assessee did not challenge the reopening before ld. Commissioner of Income Tax (Appeals). However, it assailed merits of the disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced before CIT CA) and the case was discussed. After verification of the copy of additional evidences such as invoices copies, shipping bills, purchase orders and ledger submitted by the assessee, the remand report on the issue of foreign commission payment is submitted herein below. During the course of remand proceedings the assessee has been asked to produce the copies of agreements entered into by it with the foreign agents in respect of the foreign commission. In this regard, the assessee submitted the contract note with the agents and their engagement was only for procuring orders and they acted as pure agents of the assessee firm. The agents were paid commission as a percentage of the invoice value as a consideration for procu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue or arise in India and therefore the provisions of section 195 has no application in such cases. The assessee also relied on the decision of the Hon'ble Madras High Court in the case of CIT Vs Faizan Shoes P. Ltd. (2014)367 ITR 155. The additional information firled by the assessee has been verified and it is seen the facts of the assessee's case is similar to M/s GE India Technology Centre P. Ltd. vs CIT M/s. Faizan Shoes P. Ltd on the issue of foreign commission . Nevertheless ld. Commissioner of Income Tax (Appeals) held that assessee could not produce agreements with foreign agent and the contract receipts produced by the assessee did not give the nature of services rendered by the foreign agent. Though assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al High Court. Admittedly in the said case Hon ble Jurisdictional High Court took a view which went in favour of the assessee. Hence, we cannot accept the view taken by the ld. Commissioner of Income Tax (Appeals) that nature of commission paid by the assessee was not proved in the absence of agreements. That apart, we find that the reopening was initiated after four years from the end of the assessment year. In the original assessment assessee had produced all details which were called by the ld. Assessing Officer. For a reopening after four years it is necessary that there should be failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. There is nothing on record to prove that assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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