2017 (1) TMI 1330

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....had filed return of income for the impugned assessment year disclosing income of Rs. 4,74,300/-. The original assessment was completed on 03.11.2009 u/s.143(3) of the Act, after verifying cash book, ledger, sales tax order, TDS details and creditors confirmation filed by the assessee. In such assessment, a disallowance of 10% of the tannery maintenance expenditure and machinery repairs expenditure were made by the ld. Assessing Officer, for failure of the assessee to produce entire vouchers. Thereafter the assessment was reopened on 20.03.2014 by issuing notice u/s.148 of the Act. In the course of such reassessment, it was noted by the ld. Assessing Officer that assessee had debited a sum of Rs. 8,24,320/- as commission payment to Non-Resid....

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....ished by the ld. Assessing Officer is reproduced hereunder:- In this case the assessee filed return of income for the A.Y.2007-08 on 28.10.2007 declaring income of _4,74,300/- , the case was selected for scrutiny and was completed u/s143(3) on 3.11.2009. The firm in its return of income filed u/s139(1) has debited a sum of Rs. 8,24,320/- with the description "In foreign currency to non-residents" on which TDS has not been deducted. The case was reopened u/s147 by issuing u/s148 to the firm and was duly acknowledged on 20.3.2014. The case was completed on 20.10.2014 determining the total income at _13,55,529/- In the said assessment the following additions made:- * Overseas export commission amounting to Rs. 8,24,320/- Aggrieved wit....

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.... Name of the Agent % of Commission paid Amount paid in USD Amount paid in INR 1 LINFOOT CO. LTD. Tiwan 5 3910.45 181000 2 LINFOOT CO. LTD. Tiwan 5 7468.00 336060 3 LINFOOT CO. LTD. Tiwan 5 6828.00 307260   During the course of remand proceedings, the assessee relief on the decision of the Hon'ble Supreme Court. in the case of M/s GE India Technology Centre P. Ltd. vs. Commissioner of Income Tax. The Hon'ble Supreme Court in the above case held that Tax deducted at source obligation u/s195(1) arises only if the payment is chargeable to tax in the hands of the nonresident recipient. The Hon'ble Supreme Court further held that the assessee is not liable to deduct T....

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....logy Centre P. Ltd vs. CIT 327 ITR 456 decided by Hon'ble Apex Court and that of Faizan Shoes (P) Ltd (supra) decided by Hon'ble Jurisdictional High Court. Further, according to him the re-assessment was initiated after four years from the end of the impugned assessment year and the conditions specified in first proviso of Sec. 147 of the Act was not satisfied. 5. Per contra, ld. Departmental Representative strongly supported the orders of the authorities below. 6. I have perused the orders and heard the rival contentions. The remand report of the assessee obtained by the ld. Commissioner of Income Tax (Appeals), during the course of hearing before him is reproduced at para 3 above. Ld. Assessing Officer has opined that records provid....