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TMI Blog2019 (2) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered by the non-resident agent can at best be called as a service for completion of the export commitment and would not fall within the definition of “fees for technical services”, we are the firm view that Section 9 of the Act is not applicable to the case on hand and consequently, Section 195 of the Act does not come into play. - Decided in favour of assessee. - I.T.A. No. 2117/Chny/2018 - - - Dated:- 2-1-2019 - Shri George Mathan, Judicial Member And Shri A. Mohan Alankamony, Accountant Member For the Appellant : Shri Guru Bashyam, JCIT For the Respondent : Shri T. Vasudevan, Advocate ORDER PER A. MOHAN ALANKAMONY, AM:- The appeal by the Revenue is directed against the order passed by the learned Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the Ld.CIT(A) has decided the appeal of the assessee by following the decision of the Jurisdictional High Court, no interference is required in his order. He also submitted that the facts in the case of the assessee are identical to the facts of the case decided by the Hon ble Jurisdictional Madras High Court cited supra. The Ld.DR though relied on the order of the Ld.AO could not controvert to the submission of the Ld.AR. 5. We have heard the rival submissions and carefully perused the materials on record. From the facts of the case, it is apparent that M/s. Anvil Corporation, USA a non-resident enterprise acts as an intermediary between the assessee s company and M/s. Billbang facilitating the business activity of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant year. This takes us to s. 9 of the Act. It is urged that the commission amounts should be treated as incomes deemed to have accrued or arisen in India as they, according to the department, had either accrued or arisen through and from the business connection in India that existed between the nonresident assessees and the statutory agent. This contention overlooks the effect of cl. (a) of the Explanation to cl. (i) of subs. (1) of s. 9 of the Act which provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or arisen in India. The High Court was, therefore, right in answering the question against the department. 11. The facts of the present case are akin to the facts of the decision in Toshoku Limited case, referred supra. In the instant case also the assessee engaged the services of non-resident agent to procure export orders and paid commission. That apart, the Commissioner of Income (Appeals) as well as the Tribunal have correctly applied the principle laid down in GE India Technology Cen. (P) Ltd. case, referred supra, to hold that the assessee is not liable to deduct tax at source when the non-resident agent provides services outside India on payment of commission. 12. In the light of the above said decisions and the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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