2012 (8) TMI 1139 - AT - Income Tax

Tribunal upholds deletion of addition by AO under Income Tax Act on commission payments

ACIT, circle 29 (1), Versus Nidhi Exports,

The Tribunal upheld the deletion of the addition made by the Assessing Officer under section 40(a)(ia) of the Income Tax Act, 1961, concerning commission ... - Issues involved: Challenge to deletion of addition of commission payment without deducting TDS u/s 40(a)(ia) of the I.T. Act, 1961.Facts and Decision:- The assessee, a partnership firm, engaged in the export business, made commission payments to a foreign party, M/s AV International, New Zealand, without deducting TDS u/s 194H.- The Assessing Officer disallowed the commission payment u/s 40(a)(ia) for non-deduction of TDS.- Assessee contended that no TDS was required as the foreign agent had no business activity in India and relied on case law to support the claim.- CIT(A) deleted the addition, stating that no TDS was warranted as the services were rendered outside India, and the non-resident agent had no PE in India.- The department appealed against the CIT(A)'s order, but the Tribunal upheld the deletion of the addition, finding the CIT(A)'s reasoning sound and convincing.- The Tribunal dismissed the department's appeal, affirming the CIT(A)'s decision.This judgment addressed the issue of whether TDS u/s 40(a)(ia) was required on commission payments made by the assessee to a non-resident overseas agent. The Assessing Officer disallowed the commission payment for non-deduction of TDS, but the CIT(A) deleted the addition, emphasizing that no TDS was necessary as the services were rendered outside India, and the non-resident agent had no Permanent Establishment in India. The Tribunal concurred with the CIT(A)'s decision, finding the reasoning sound and dismissing the department's appeal.