2019 (7) TMI 805

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.... This appeal, filed by the Revenue under Section 260A of the Income Tax Act, 1961 (for short, the Act), is directed against the order dated 23.4.2014 in ITA.No.105/Mds/2014 on the file of the Income Tax Appellate Tribunal, Chennai 'C' Bench for the assessment year 2005-06. 3. The Revenue has filed this appeal by raising the following substantial questions of law : "i. Whether the Tribunal was justified in holding that overseas commission payment of Rs. 5,77,90,724/- without deduction of tax at source, does not entail disallowance under Section 40(a)(i) read with Section 195, without taking cognizance of Explanation 4 to Section 9(1)(i) and Explanation 2 to Section 195(1), both by the Finance Act, 2012, squarely apply to ....

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....n 195 of the IT Act attracts tax only on chargeable income, if any, paid to a nonresident. Where there is no liability, the question of tax deduction does not arise. Where no part of the income is chargeable in India, even clearance under Section 195(2) or 195(3) of the IT Act is not necessary. The decision of the Karnataka High Court in Commissioner of Income Tax (International Taxation) Vs. Samsung Electronics Co. Ltd., reported in (2010) 320 ITR 209 (Kar), has been overruled by the Supreme Court in GE India Technology Centre P. Ltd. v. CIT, reported in (2010) 327 ITR 456 (SC). The Supreme Court held as under: 'This reasoning flows from the words 'sum chargeable under the provisions of the Act' in Section 195....

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....re payable in respect of services utilised in a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India. In view of Explanation (2) to Section 9(1)(vii), technical services means any consideration, including lumpsum consideration, for rendering of any managerial, technical or consultancy services, including the provision of services of technical or other personnel, but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient. Service of market survey only to ascertain the demand for the product in the market is incidental to the function of a commission agent of procuring orders and is, in any cas....

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....project undertaken by the recipient or consideration, which would be income of the recipient chargeable under the head salaries. Explanation (B) to Section 40(a)(i) provides that the expression fees for technical services in Section 40(a)(i) shall have the same meaning as in Explanation 2 to Clause (vii) of Sub-Section (1) of Section 9. 37. On a reading of Explanation (2) to Section 9(1)(vii), fees for technical services means consideration, including lumpsum consideration for rendering any managerial, technical or consultancy services. 38. In the instant case, the Assessing Officer has, in the assessment order, accepted that the appellant assessee has paid commission charges to overseas agents. It is not the case of the A....