2012 (8) TMI 1139

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.... department is directed against the order passed by the CIT(A)-XXV, New Delhi dated 16.11.2011, relevant to assessment year 2008-09, whereby deletion of addition of Rs. 29,06,352/- made by the Assessing Officer on account of commission payment without deducting TDS u/s 40(a)(ia) of the I.T. Act, 1961 has been challenged. 2. Facts indicate that the assessee is a partnership firm of two partners ....

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....e mater in appeal and submitted before first appellate authority that assessee is in this business for a long time and has been making commission payment to foreign party as the business is secured for the foreign agents. The assessee also submitted that foreign agent is non-resident overseas agent and has no PE or business activity in India and as such no TDS is deductible u/s 194H or u/s 195 to ....

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....e Assessing Officer and the submission fo the assessee and I find considerable merit in the submission of the assessee that he payment of commission are made to non-resident overseas agent, who has no PE or business activities in India and the services are also rendered outside India and as such no income is arising to the non-resident commission agent in India and as such no TDS is deductible u/s....

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....s such it is not possible to sustain such disallowance and accordingly the addition made by the Assessing Officer is deleted." 4. Aggrieved by this order of the CIT(A), department ahs come up in appeal and Ld.DR while relying upon Assessing Officer's order has pleaded for reversal of the order of the CIT(A) and restoring that of the Assessing Officer whereas Ld.Counsel for the assessee relied u....