2010 (6) TMI 875

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....der for the sake of convenience. 2. First we will take up the appeal of the revenue in ITA No.999/Hyd/2007. Ground Nos. 1 and 6 are general in nature and they require no adjudication. The effective ground of appeal i.e., ground No.2 relates to sales commission paid to foreign agents without TDS. The assessing officer made an addition of ₹ 8,64,90,779 on account of sales commission paid to foreign agents without deducting TDS as per section 40(a)(ia) of the Act. The CIT(A) deleted the addition on the ground that the commission was paid directly to the non resident agents for rendering services abroad which are not liable for deduction of TDS under S.195 of the Act. We find that as per Circular 786 dated 17-2-2000, commission paid by ....

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....f the Apex Court in the case of Liberty India vs. CIT reported in 317 ITR 218 whereas the learned counsel for the assessee relied on the decision of ITAT, Hyderabad, in the case of Godavari Drugs Limited reported in 89 ITD 326. We find that identical issue was decided in favour of the assessee in the assessee's own case for the assessment year 20003-04. It is also undisputed fact that the gain on foreign exchange arises on account of exports of goods and not on purchase of any capital goods. In view of the above, we prefer to follow the decision of the coordinate bench of this tribunal in the case of Godavari (Supra) and therefore, we see no infirmity in the orders of the CIT [A] on this issue and the same is confirmed. 5. Ground No.5....

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....ficer is right in reopening the assessment by issuing a notice under section 148 of the Act. On merit, we find that this issue was already dealt with by the larger Bench of Delhi Tribunal in the case of Hindustan Mint and Agro Products Pvt. Limited (supra). The Special Bench of the Tribunal held that a plain reading of specific provision of sec.80IA (9) would indicate that the legislative intent is to prevent repetitive deduction being claimed on the same profit, under different provisions of the Chapter. This ruling provides guidance that where the same profit is eligible for deduction under both the sections viz., 80IA and 80HHC, the deduction u/s 80 HHC will have to be computed by reducing the deduction allowed u/s 80IA/80IB of the Act. ....

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....of the Act in line with the working shown in 'B' above and as per the ruling of the Special Bench of the Tribunal in the case of Hindustan Mint (supra). We direct accordingly." Respectfully following the same, the ground raised by the Revenue in this regard is treated as allowed for statistical purpose. 6. Now we will take up the appeal of the revenue in ITA No.415/Hyd/07 for the assessment year 2002-03. Ground No.1 and 8 are general in nature and they do not require any adjudication. Ground Nos.2, 4, 5 and 6 are similar to the grounds raised in ITA No.999/Hyd/07 for the assessment year 2004-05. In view our above finding in ITA No.999/Hyd/07, ground No.2 is dismissed, Ground Nos. 4 and 5 are allowed and Ground No.6 is treat....