TaxTMI 
TaxTMI 
2022 (4) TMI 175
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.... the Appellant with the parties submitted by the Appellant which clearly evidences the nature of the transactions. 1.2 That the Ld. CIT(A) has erred in alleging that the Appellant has not submitted the agreements with the parties, despite the fact that the Appellant had submitted the terms and conditions agreed with the online platforms with whom the impugned transactions were made. 1.3 That the Ld. CIT(A) has erred in not deciding upon the nature of the transactions as to how tax was required to be withheld under section 195 of the Act. 1.4 That the Ld. CIT(A) erred in facts and in law in upholding the disallowance by doubting the genuineness of the claim rather than deciding upon the allegation of the Ld. AO that payments were to be subjected to withholding tax under section 195 of the Act. 2 That the Ld CIT (A) has erred in Law and on facts in upholding the action of the Ld. AO in making an addition of Rs. 3,42,631 /- on account of late deposit of PF and ESI without appreciating the judicial pronouncements of various courts in favor of the Appellant. 2.1 That the Ld. CIT(A) has erred in facts and in law in not appreciating the settled....
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.... after deduction of commission/fee by Apple Ireland Ltd. An amount of Rs. 10,87,483/- was paid by the assessee. He contended that in respect of Google, a sum of Rs. 6,27,801/- was paid. He further contended that in respect of LinkedIn a sum of Rs. 68,663/- was paid. Learned counsel further reiterated the submissions as made in the synopsis filed by the assessee. For the sake of clarity the relevant portion of Brief Synopsis is reproduced hereunder: "GROUNDS NO. 1.1.1.1.2.1.3 AND 1.4 4. Disallowance on account of non-deduction of TPS on payments to non-residents Google and Apple 4.1. Google and Apple, both act as online marketplaces (through Android and iOS platforms) where the mobile application of the Appellant is list for download by the users. 4.2. The users pay for certain value-added services used through the mobile application of the Appellant, the revenue for which is first collected by Google and Apple. 4.3 Both Google and Apple charge a commission/fee, based on the revenue generated from the users of the mobile application. 4.4 There is no technical, consultancy or managerial service being provided by Google or Apple to the Appellant, and as such the p....
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....d as fee for technical services nor as royalty. Thus, the payments are not chargeable to tax in India and thus, there arose no liability on the Appellant to deduct TDS thereon. 4.15 It is humbly prayed before the Hon'ble Bench to delete the addition in its entirety. 5. Learned Sr. DR opposed the submissions and supported the orders of the authorities below. He submitted that the assessee has made payment, therefore, as per Section 195 of the Act, the assessee was required to deduct tax, which he failed to deduct. Therefore, the Assessing Officer has rightly disallowed the expenditure. 6. I have heard the rival submissions and perused the material available on record. The short question that needs to be determined is whether the payment made by the assessee to different service providers would attract deduction of tax u/s 195 of the Act. The contention of the assessee is that it was not liable to deduct tax as the payments were in the case of Apple iOS, the App was used by customers through Apple iOS interface and the fee was first collected by Apple Ireland Ltd. and paid to the appellant after deduction of commission/fee by Apple Ireland ltd. Similarly, in the case of ....
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.....1 The Appellant had paid/deposited provident fund and ESI amounting to INR 3,42,631 after due date in the relevant Acts but before the due date of filing of the income tax return. 5.2 The issue is squarely covered by the judgement of the Hon'ble SMC Bench of Delhi Trib. in the cases of Yogi Ji Technoequip v DCIT, CPC [2021] 129 taxmann.com 313, order dated 30 July 2021 and in Azamgarh Steel & Power [ITA No. 1626 of 2020], order dated 31 May 2021. 5.3 The Hon'ble SMC Bench of Delhi Tribunal, in the case of Azamgarh Steel & Power (supra), while deciding the issue in favor of the assessee relied on the judgments of Hon'ble Delhi High Court in the cases of CIT v. AIMIL Ltd. [2010] 321 ITR 508 (Del.), and Pr. CIT v. Pro Interactive Service (India) (P.) Ltd. ITA No. 983/2018. 5.4 The SMC Bench of Delhi Tribunal also held that it is settled law that when two judgments are available giving different views then the judgment which is in favour of the assessee shall apply as held in case of Vegetable Products Ltd. 82 ITR 192 by the Hon'ble Supreme Court. 5.5 The issue at hand is squarely covered in the favor of the Appellant and it is humbl....