2012 (3) TMI 420 - AT - Income Tax

Appeal allowed for non-resident agent commission, emphasizing Income Tax Act requirements.

The Tribunal allowed the appeal, ruling in favor of the assessee based on the non-taxability of the commission paid to non-resident agents for services ... TDS u/s 195 - Held that:- In this case, since the commission was paid to a non-resident agents for the services rendered outside India, such payments are not chargeable to tax in India and therefore, the provisions of section 195 are not applicable. We direct the Assessing Officer to delete the disallowance of commission paid to non-resident agents. Appeal of the assessee is allowed. Issues: Disallowance of commission paid to non-resident agents for services rendered outside India.Analysis:1. Issue of Disallowance of Commission: The appeal pertains to the disallowance of commission amounting to &8377; 1,45,83,443 paid to non-resident agents for services rendered outside India. The Assessing Officer disallowed the commission due to the absence of Tax Deducted at Source (TDS) under section 195 of the Income Tax Act, invoking section 40(a)(i).2. Assessee's Business and Arguments: The assessee, engaged in manufacturing and exporting leather garments, contended that the non-resident agents provided services outside India without any establishment in India. Therefore, the income did not accrue in India, making TDS deduction under section 195 unnecessary. Citing precedents like the case of G.E. India Technology Centre (P) Ltd. v. CIT, the assessee argued against the disallowance.3. Decision and Reasoning: The Tribunal analyzed the Supreme Court's decision in G.E. India Technology Centre (P) Ltd. v. CIT, emphasizing that TDS is required only if the sum is assessable to tax in India. Since the commission paid to non-resident agents for services outside India was not chargeable to tax in India, the provisions of section 195 did not apply. Consequently, the Tribunal directed the Assessing Officer to delete the disallowance and allowed the appeal of the assessee, setting aside the lower authorities' orders.4. Conclusion: The Tribunal allowed the appeal, ruling in favor of the assessee based on the non-taxability of the commission paid to non-resident agents for services rendered outside India. The decision highlighted the crucial aspect of taxability under section 195 and the necessity for income to be chargeable under the Income Tax Act for TDS obligations to arise.