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TMI Blog2018 (6) TMI 1724X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of fees for technical services and, therefore, section 9 was not applicable and, consequently, section 195 did not come into play. Therefore, the disallowance made by the AO towards export commission paid by the assessee to the non-resident was rightly deleted. - Decided against revenue. - I.T.A. No. 4395/DEL/2014 - - - Dated:- 27-6-2018 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER For the Department: Sh. K. Tewari, Sr. DR For the Assessee by: Sh. Piyush Kaushik, Adv. ORDER PER H.S. SIDHU, JM This appeal by the Revenue is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-XII, New Delhi dated 28.5.2014 pertaining to assessment year 2011-12 on the following grounds:- 1. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of ₹ 50,63,797/- made by the AO u/s. 40(a)(i) for non-deduction of TDS. 2. The appellant craves to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 2. The brief facts of the case are that the assessee has filed the return of income declaring income of ₹ 3,22,74, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed u/s. 143(3) of the Act at total income of ₹ 3,73,38,770/- vide order dated 17.01.2014. 3. Against the aforesaid assessment order, the assessee appealed before the Ld. CIT(A)-XII, New Delhi, who vide its impugned order dated 28.05.2014 has allowed the appeal of the assessee and deleted the addition in dispute, after following the various case laws and in view of the fact that assessee s appeal for the assessment year 2009-10 on the same issue was allowed by the Ld. CIT(A)-XII vide order dated 12.6.2012. 4. Aggrieved with the impugned order, the Revenue is in appeal before the Tribunal. 5. At the time of hearing, Ld. DR relied upon the order passed by the AO and reiterated the contentions raised by the Revenue in the grounds of appeal. 6. On the other hand, Ld. Counsel of the Assessee, Sh. Piyush Kaushik, Adv. has relied upon the order of the Ld. CIT(A) and reiterated the contentions made before the Ld. CIT(A). He further stated that since the Ld. CIT(A) has rightly deleted the addition in dispute by following the various case laws as well as following the Ld. CIT(A)-XII, New Delhi Order dated 12.6.2012 passed in assessment year 2009-10 in assessee s own cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue by upholding the action of the Ld. CIT(A). 7. We have heard both the parties and perused the relevant records available with us, especially the impugned order as well as the case laws cited by the Ld. Counsel of the assessee, as aforesaid. We find that Ld. CIT(A) on the same issue has rightly deleted the addition in dispute by following the various case laws as well as following the Ld. CIT(A)-XII, New Delhi Order dated 12.6.2012 passed in assessment year 2009-10. We also note that Ld. CIT(A)-XII, New Delhi vide his order dated 12.6.2012 in the assessment year 2009-10 has discussed the issue in dispute elaborately at page no. 8 to 9. For the sake of convenience, we are reproducing hereunder the relevant findings of the Ld. CIT(A) for the assessment year 2009-10 as under:- I have perused the facts stated in the assessment order as well as assessee s reply. The assessee in his submission has stated that the Assessing Officer has taken the commission payment under the term fees for Technical Services and as per Explanation 2 to section 9(1)(vii) of the Act has held that the payment made by the assessee company to the overseas agents is the income accrue/arises to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedence in the assessment year 2011-12 and rightly allowed the appeal of the assessee by deleting the addition in dispute. We further find that Ld. CIT(A) in the assessment year 2009-10 has respectfully followed the following decisions:- 1) DCIT vs. Divi's Laboratories Ltd reported in 2011 TII 182 (2011) 12 Taxmann. Com 103, 2) Eon Technologies (P) Ltd vs. DCIT 11 Taxmann.com 53 (Del). 3) Hon'ble ITAT Chennai Bench in the case of DCIT vs. M/s Mainetti (India) p. Ltd. 138/20, Florida Towers, 3rd Floor, Chennai. 7.2 We also find that on the anvil of the following decisions, the assessee is not liable to deduct tax at source:- i) Decision of the Coordinate Bench of ITAT in the case of DCIT (International Taxation), Ahmedabad vs. Welspun Corporation Ltd. (2017) 77 taxmann.com 165, wherein it was observed (Heads Note only) that payments made by assessee for services rendered by non-resident agents could not be held to be fees for payment for technical services, these payments were in nature of commission earned from services rendered outside India which had no tax implications in India. ii) Decision of Hon ble Madras High Court in the case of CIT vs. Kikani E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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