2019 (4) TMI 1888 - AT - Income Tax

Tribunal directs reassessment of foreign agent commission payments for 2012-2015

The ACIT, Circle-2 (1), Guntur Versus M/s. NSL Textiles Ltd.

The Tribunal allowed the Revenue's appeals for statistical purposes, directing the Assessing Officer to re-adjudicate the issue of commission payments to ... TDS u/s 195 - commission payment to the foreign agents - non deduction of TDS - Addition u/s 40(a)(ia) - CIT-A deleted addition - HELD THAT:- Assessee has not field copy of agreement and the details in respect of commission payment, therefore, the Assessing Officer disallowed by invoking section 40(a)(ia) - Even before the ld. CIT(A), the assessee has not filed the agreement entered into by the assessee with the foreign agents, however, the ld. CIT(A) only considered the random bills and invoices, names of the agents and export invoices, allowed the ground raised by the assessee. When the assessee has not filed written agreement entered into by the assessee with the foreign agents, which is very much necessary to decide the genuineness of the payment made to the foreign agents, the ld. CIT(A) ought to have called the remand report in respect of other details field before him. Instead that, he simply considered the details filed by the assessee and allowed the ground raised by the assessee, in our opinion, the order passed by the ld. CIT(A) cannot survive Order of the ld.CIT(A) is set aside and remit the matter back to the file of the Assessing Officer to examine the genuineness of the payments made to the foreign agents and other relevant details and pass necessary orders in accordance with law after giving affordable opportunity of hearing to the assessee. - Decided in favour of revenue for statistical purposes. Issues Involved:1. Disallowance of commission paid to foreign agents under section 40(a)(ia) of the Income Tax Act due to non-deduction of TDS.2. Examination of the genuineness of payments made to foreign agents.3. Admissibility of evidence and remand report considerations.4. Cross objections by the assessee supporting the CIT(A)'s order.Detailed Analysis:1. Disallowance of Commission Paid to Foreign Agents:The primary issue revolves around the disallowance of Rs. 1,60,62,998/- paid as commission to foreign agents by the assessee, M/s. NSL Textiles Ltd., under section 40(a)(ia) of the Income Tax Act due to non-deduction of TDS. The Assessing Officer (AO) noted that the assessee did not deduct TDS on the commission paid to foreign agents and disallowed the amount under section 40(a)(ia).2. Examination of the Genuineness of Payments:On appeal, the Commissioner of Income Tax (Appeals) [CIT(A)] deleted the addition by observing that the commission agents rendered services outside India and had no permanent establishment in India. The CIT(A) verified the details of commission payments, agent names, export invoices, and other supporting documents, concluding that the commission was related to exports facilitated by these agents and thus, no TDS was required.3. Admissibility of Evidence and Remand Report Considerations:The Departmental Representative argued that the assessee did not provide sufficient details or agreements regarding the commission payments during the assessment proceedings. The CIT(A) allowed the appeal without calling for a remand report, which was deemed inappropriate. The Tribunal found that the CIT(A) should have called for a remand report to verify the genuineness of the payments and other relevant details. Consequently, the Tribunal set aside the CIT(A)'s order and remitted the matter back to the AO for fresh consideration, emphasizing the need to examine the genuineness of the payments and agreements with foreign agents.4. Cross Objections by the Assessee:The assessee's cross objections were supportive of the CIT(A)'s order, asserting no grievance against it. However, since the Tribunal remitted the main issue back to the AO for re-examination, the cross objections became infructuous and were dismissed accordingly.Conclusion:The Tribunal allowed the appeals filed by the Revenue for statistical purposes, directing the AO to re-adjudicate the issue of commission payments to foreign agents for the assessment years 2012-13 to 2014-15. The AO was instructed to examine the genuineness of the payments and relevant agreements, providing the assessee an opportunity for a hearing. The cross objections filed by the assessee were dismissed as they became infructuous.