2019 (5) TMI 705 - AT - Income Tax

Commission paid to non-resident agents for services outside India not taxable in India

The tribunal held that the commission paid to non-resident agents for services rendered outside India is not taxable in India if the agents do not have a ... TDS u/s 195 - Disallowance u/s 40(a)(ia) - commission paid to non-resident - income accrued in India - HELD THAT:- Commission payments made to the non-resident agents did not have any taxability in India, even under the provisions of the domestic law i.e. Section 9. Once we come to the conclusion that the income embedded in these payments did not have any tax implications in India, no fault can be found in not deducting tax at source from these payments or, for that purpose, even not approaching the Assessing Officer for order under section 195. In our considered view, the assessee, for the detailed reasons set our above, did not have tax withholding liability from these payments. As held in the case of GE India Technology Centre (P.) Ltd. v. CIT [2010 (9) TMI 7 - SUPREME COURT] payer is bound to withhold tax from the foreign remittance only if the sum paid is assessable to tax in India. The assessee cannot, therefore, be faulted for not approaching the Assessing Officer under section 195 either. As regards the withdrawal of the CBDT circular holding that the commission payments to non-resident agents are not taxable in India, nothing really turns on the circular, as de hors the aforesaid circular, we have adjudicated upon the taxability of the commission agent's income in India in terms of the provisions of the Income Tax Act as also the relevant tax treaty provisions. See WELSPUN CORPORATION LIMITED AND VICE-VERSA [2017 (1) TMI 1084 - ITAT AHMEDABAD] Issues Involved:1. Whether the commission paid to non-resident agents is taxable in India.2. Applicability of Section 40(a)(ia) of the Income Tax Act, 1961.3. Interpretation of 'fees for technical services' under Section 9(1)(vii) of the Income Tax Act, 1961.4. Tax withholding obligations under Section 195 of the Income Tax Act, 1961.Issue-wise Detailed Analysis:1. Whether the commission paid to non-resident agents is taxable in India:The core issue was whether the commission paid to non-resident agents for services rendered outside India is taxable in India. The tribunal referred to the case of DCIT Vs. Welspun Corporation Limited, where it was held that commission paid to non-resident agents is not taxable in India if the agents do not have a permanent establishment (PE) in India. The tribunal emphasized that the income in the hands of the non-resident agents could not be taxed as business income or under the head 'fees for technical services' due to the absence of a PE in India. The tribunal also noted that the services rendered by the agents, even if technical, were not the consideration for the commission paid; rather, the commission was for securing business orders.2. Applicability of Section 40(a)(ia) of the Income Tax Act, 1961:Section 40(a)(ia) disallows certain expenses if tax is not deducted at source. The tribunal observed that since the commission paid to non-resident agents was not taxable in India, there was no requirement to deduct tax at source under Section 195. Consequently, the disallowance under Section 40(a)(ia) was not applicable. The tribunal upheld the CIT(A)'s order, which had deleted the disallowance made by the Assessing Officer.3. Interpretation of 'fees for technical services' under Section 9(1)(vii) of the Income Tax Act, 1961:The tribunal analyzed whether the commission paid could be considered 'fees for technical services' under Section 9(1)(vii). It was noted that the definition of 'fees for technical services' includes managerial, technical, or consultancy services. However, the tribunal clarified that the commission paid was for securing business orders and not for rendering technical services. The tribunal referred to various judicial precedents, including the case of Dy. CIT v. Troikaa Pharmaceuticals Ltd., to support the view that the services rendered by the agents, even if technical, did not qualify as 'fees for technical services' since the consideration was for business procurement.4. Tax withholding obligations under Section 195 of the Income Tax Act, 1961:Section 195 requires tax deduction at source on payments to non-residents if the income is chargeable to tax in India. The tribunal referred to the Supreme Court's decision in GE India Technology Centre (P.) Ltd. v. CIT, which held that tax withholding obligations arise only if the payment is chargeable to tax in India. Since the commission paid to non-resident agents was not taxable in India, the assessee was not required to withhold tax under Section 195. The tribunal also noted that the withdrawal of the CBDT circular, which stated that commission payments to non-resident agents are not taxable in India, did not affect the decision, as the tribunal's conclusion was based on the provisions of the Income Tax Act and relevant tax treaties.Conclusion:The tribunal dismissed the appeal, confirming the CIT(A)'s order that deleted the disallowance under Section 40(a)(ia) and held that the commission paid to non-resident agents was not taxable in India. The tribunal's decision was based on the interpretation of relevant sections of the Income Tax Act, judicial precedents, and the absence of a permanent establishment of the non-resident agents in India.